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Last update: 17-08-2004
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Service of documents - Portugal

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TABLE OF CONTENTS

1. What does the legal term "service of documents" mean in practical terms? Why are there specific rules on the "service of documents"? 1.
2. Which documents need to be served formally? 2.
3. Who is responsible for serving a document? 3.
4. How is the document in practice normally served? Are there any alternative methods? 4.
5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)? If there are alternative methods, please describe all methods. 5.
6. Is there any written proof that the document has been served? 6.
7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)? Can the service of the document nevertheless be valid (e.g. can violations of the law be remedied) or must a new effort to serve the document be made? 7.
8. Do I have to pay for the service of a document, and if so, how much? 8.

 

1. What does the legal term "service of documents" mean in practical terms? Why are there specific rules on the "service of documents"?

Service (citação) is the act through which a person is informed that a legal action has been brought against him and through which he is invited to defend himself, if he so wishes. Service is also used for the initial summons of a person with an interest in the proceedings.

Notification (notificação) is used, in all other cases, to summon a person to appear in court or to inform him of a fact.

Service is used once only for each person, which is why, thereafter, the defendant is simply notified.

Notification is always used when a person must be summoned to appear in court who has no direct interest in the proceedings and, as a result, does not need to defend himself (for example, to call witnesses and experts).

There are specific rules on the "service of documents", given the enormous importance which these acts have in the process leading to the fair settlement of the dispute (for example, they allow a defence to be submitted or a response to be given to an application by the opposing party or serve to summon a person to appear in court).

Furthermore, the required solemnity and the specific formalities imposed by the law are justified by the need to ensure that it is possible to prove that the act has been performed.

2. Which documents need to be served formally?

The initial application and the documents attached to it need to be served.

All applications arising in the proceedings to which the parties may respond and the documents linked to these during the proceedings are notified.

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The following are also notified: judgments and orders delivered by judges which the law orders to be notified or which may cause prejudice to the parties and also those whose notification is ordered by the judge; applications and requests from public prosecutors; some acts performed by the court registry; the procedural costs account, and documents included in the case on the initiative of third persons.

3. Who is responsible for serving a document?

The physical performance of the act of service may fall to the court registry and the postman (for service by recorded or ordinary post), a court official (for service in person on the person served), a legal representative (barrister or solicitor) or a legal executive designated by the legal representative.

4. How is the document in practice normally served? Are there any alternative methods?

Service by post involves sending a recorded delivery letter, with an advice of receipt on an officially approved form, to the person to be served at his residence or place of work or, in the case of a legal person or company, to the respective head office or place from which the administration normally operates. The letter must clearly indicate the deadline by which a defence must be submitted, the need, if any, to instruct a barrister and the consequences of failure to submit any defence.

In the case of service on an individual, the letter may be handed over, after signature of the advice of receipt, to the addressee or any person present at the latter's residence or place of work who declares that they are able to promptly hand it over to the person to whom the correspondence is addressed.

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Before the advice of receipt is signed, the postman must identify the addressee or the third person to whom the letter is handed over, by noting down the details from their identity card or another official identity document.

When the letter is handed over to a third person, the postman must expressly inform the latter of their duty to promptly hand this over to the individual or legal person for whom the correspondence is intended.

If service is not possible, a notice will be left for the addressee identifying the court from which the letter originates and the proceedings to which it relates. The reasons for the failure will be recorded and the letter will be kept for eight days, for collection by the addressee, at the duly identified postal establishment.

If any person refuses to sign the advice of receipt or to receive the letter, the postman will make a record of the incident before returning the letter. In this case, service will then be effected by a court bailiff by prior arrangement of the exact time of the service on the person to be served or on another person present at the specified location who is shown to be in the best position for passing on the communication. When this is not possible, a notice will be put up at the location regarded as most appropriate and the act may be effected merely by the display of the record of service stating that the duplicate and attached documents are available, to the person to be served, at the court registry. In this case, and whenever the document is served on a person other than its addressee, a recorded delivery letter will also be sent to the person to be served, indicating the date on which and the method by which the act is regarded as having been effected, the deadline for submitting a defence, the consequences of failing to do so and the location of the duplicate. When the document is served on a third person, the identity of the person on whom this was served will also be indicated.

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In actions to enforce compliance with financial obligations resulting from a written contract, the document will be served by ordinary letter sent to the person to be served. This letter will be sent to the residence or head office of the addressee, as indicated in the contract, unless another place where the addressee is deemed to have his residence or head office for the purposes of service is expressly agreed.

The court bailiff must ensure that the date of dispatch of the ordinary letter and the residence or head office to which it was sent are expressly recorded in the proceedings.

The postman posts the letter through the letterbox of the person to be served and makes a declaration indicating the date and confirming the exact place of posting. He immediately forwards this declaration to the court.

If it is not possible to post the letter through the letterbox, the postman will make a record of the incident, date it and forward it immediately to the court, except where posting is not possible on account of the dimensions of the letter. In this case, the postman will leave a notice for the addressee, identifying the court from which the letter originates and the proceedings to which it relates, recording the reasons why it was not possible to deliver the letter, and the letter will be kept for eight days for collection by the addressee at the duly identified postal establishment.

Personal service by the court bailiff on the person to be served is used whenever this appears to be the quickest solution.

The court bailiff hands over to the person served the duplicate of the initial application and the documents accompanying and forming an integral part of it, together with the record of service. This record must indicate the case number, the section, division and court where the action is being heard, the deadline by which the defence must be submitted, a statement of the need to instruct a barrister and the consequences of failure to respond.

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If the document cannot be served on account of the person to be served being shown to be unable to receive it as a result of a known mental disorder or other incapacity, the court bailiff records this and notifies the applicant. The case is then submitted for a ruling to the judge, who will decide on the existence of the incapacity after the necessary information has been collected and the required evidence produced. If a temporary or permanent incapacity is accepted, a representative for the person to be served is appointed (temporary guardian) on whom the service is effected.

Alternatively, the document may be served by legal representatives (barristers or solicitors) or by legal executives designated by the latter in cases in which this intention is stated in the initial application or when another form of service has been frustrated. The information to be provided is as indicated above. The record of the act is dated and signed by the person responsible for the service. Where it is shown that this has not occurred within 30 days of the request to the legal executives, the legal representative will record this fact and carry out the service in general terms.

Service will be effected through public notices when it is decided that the whereabouts of the person to be served or the identity of the people to be served are uncertain. In addition to the publication of notices in newspapers (which will occur in particular if the case is important enough to justify this), three public notices will be displayed in the first case (one on the door of the court, another on the door of the last known residence and another on the door of the respective parish council) and, in the second case, a single public notice will be displayed on the door of the court.

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The performance of procedural acts which require the intervention of court services may be requested from other courts or authorities by a letter of request (carta precatória or carta rogatória). The carta precatória is used when a court or Portuguese consulate is asked to perform the act and the carta rogatória is used when the request is made to a foreign authority. The court orders the performance of the procedural act by the body which is functionally subordinate to the requested court or authority.

Documents served or notified by post are sent directly to the person for whom they are intended, whatever the judicial district in which the person is located.

When passing on any messages or sending or returning letters of request, the court services may use fax and telematic means in addition to the post. In the case of urgent acts, telegrams, telephone calls or other similar means of telecommunications may be used. Telephone calls are always documented in the case-file and are followed up by confirmation by any written means. With regard to the parties, telephone calls are only legal as a method of transmitting an invitation or a withdrawal of an invitation to procedural acts.

As a rule, notifications are effected by post.

Notifications to the parties during proceedings are made to their legal representatives.

When the notification is intended to invite a party to appear in person, in addition to the representative being notified, a recorded delivery notice will also be sent by post to the party itself, indicating the date, place and purpose of the appearance.

Representatives are notified by a recorded delivery letter sent to their office or chosen address for service. They may also be notified in person by the bailiff when they are located within the court building.

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Notification by post is presumed to be effected on the third day after the date of recording of the letter, or on the first working day after this if this day is not a working day, and still takes effect if the letter is returned, provided that it has been sent to the office of the representative or to the address for service chosen by the latter. In this case or, if the letter has not been delivered on account of the absence of the addressee, the envelope will be added to the case-file, and notification is presumed to have been effected on the said third day after the date of recording of the letter.

This presumption may be rebutted by the addressee proving that the notification was not effected or was effected on a date after the presumed date, for reasons which are not the addressee's responsibility.

If the party has not instructed a barrister, notifications will be made to the party at the place of residence or head office or at the address for service chosen for the purpose of receiving these notifications, under the terms established for notifications to representatives.

Final decisions are always notified, provided that the residence or head office of the party is recorded in the case-file.

When orders, judgments or sentences are notified, a legible copy or photocopy of the decision and the reasons for it must be sent or handed over to the person served.

Invitations and communications sent to interested parties present in a procedural act by a decision of the presiding body are valid as notifications provided that they are documented in the respective case-file or minutes.

5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)? If there are alternative methods, please describe all methods.

The answer to these questions can be found in full in the answers to the previous questions.

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6. Is there any written proof that the document has been served?

For service by recorded post, written proof is provided by the advice of receipt which must record the date of delivery of the letter and the signature of the person who received it. This advice will also include, added by the postman, the identification details of the addressee or third person to whom the letter has been delivered, taken from the identity card or another official document permitting identification.

For service by ordinary post, the means of proving that this has been effected consists of a declaration produced by the postman which must record the date, the exact place where the letter was posted and the signature of the postman.

For service in person, the person performing the act (court bailiff, barrister, solicitor or legal executive) produces a document containing the description of the act, the date this occurred, his signature and the addressee of the service.

Notification is carried out, as a rule, by recorded delivery letter except when this must occur in person, in which case it will comply with the rules specified for service.

The notification of a document is always recorded in the case-file, in particular by indicating the date of dispatch of the correspondence and other information allowing this to be determined. The receipt of the document is determined from the aforementioned presumption and it is therefore accepted that receipt occurred on the third day after the date of recording of the letter.

7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)? Can the service of the document nevertheless be valid (e.g. can violations of the law be remedied) or must a new effort to serve the document be made?

Everything which occurs after the initial application, but not including this application, is invalid when the defendant has not been served or when the public prosecution service has not been served right at the start of the proceedings in cases in which the latter must act as the principal party.

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Service is not regarded as having been effected when: the act has been completely omitted; a mistake has been made with the identity of the person served; service by publication has been improperly used; it is shown that service was effected after the death of the person to be served or after the termination of this person in the case of a legal person or company; it is proven that the addressee of a personal service has not come to know about the act because of a fact which is not attributable to the latter.

Service is also invalid when, once it has been effected, the formalities laid down by law have not been observed.

The existence of the invalidity must be accepted by the judge and is subject to a deadline for submission.

If the irregularity involves a longer period being indicated for the defence than the law allows, the defence must be admitted within the period indicated unless the applicant has the defendant served again under the appropriate terms. If the legal formalities are violated, the submission of invalidity is accepted only if the error committed could prejudice the defence of the person served.

The declaration of invalidity requires the annulled acts to be repeated.

If the defendant or public prosecution service acts in the proceedings without immediately submitting that they have not been served, the invalidity is regarded as remedied.

With regard to notifications, the omission of a legal formality has to be submitted by the party prejudiced by the error.

The assessment of the submission of invalidity is the responsibility of the judge, who must accept its existence when the law declares this or when the irregularity committed could influence the examination or decision in the case.

8. Do I have to pay for the service of a document, and if so, how much?

There is no specific prior payment for service or notification.

The travel costs of the court bailiff responsible for effecting the service (in person) and the costs of postage, telephone calls, telegrams or communications by telematic means are included in the procedural costs and will be paid at the end by whoever loses the case.

Separate legal notifications (which are those not arising during proceedings) are always effected by the court bailiff. The respective costs are paid by the applicant and include the travel costs of the said bailiff.

Further information

These notes will gradually be updated and expanded. They are not intended to be regarded as doctrine; rather they reflect the regulatory content and language used by the legislator, thus avoiding interpretation and aiming to set out in a simple and summarised manner the specific aspects of Portuguese law.

Reading these notes does not rule out the need to seek advice from legal professionals, whenever necessary.

Through a careful analysis, further information may be obtained from the following websites:

« Service of documents - General information | Portugal - General information »

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Last update: 17-08-2004

 
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