Time has an undeniable impact on legal issues. In civil matters, legal situations are affected and constrained by two different types of deadline: civil and procedural. Time limits are subject to their own rules and methods of calculation depending on whether they are substantive or procedural.
Unless expressly provided otherwise, the deadlines established by law are civil.
As regards deadlines in civil matters, Portuguese legislation makes specific reference to periods of limitation, lapse and non-use (Article 298 of the Civil Code).
The right to invoke the limitation period arises when the holder of a given right has not exercised that right during a statutory period, provided that this right is freely available to its holder and is not exempt by law. The importance of the certainty and safety of legal relationships is thus reaffirmed by not leaving the exercise of rights pending indefinitely. The limitation period must be invoked by the person who benefits from it; it cannot be raised by the court of its own motion.
Strictly speaking, what limitation means is that a right or a legal situation automatically ceases to apply, the lapse of a period means the cessation, without retroactive effect, when the specified period elapses.
If established in matters not at the discretion of the parties, the elapsing of a period is raised by the court of its own motion and can be claimed at any stage of the proceeding. If established in matters at the discretion of the parties, it must be invoked in or out of court in order to be effective.
Non-use means the failure to exercise a right to total or partial use of something, i.e. to enjoy its benefits or economic advantages, during a statutory period. It results in the extinction of the corresponding right.
Non-use cannot be raised by the court of his own motion.
Procedural time limits are laid down by law in order to produce a specific effect on a proceeding (for example, the time limits for instituting proceedings or for opposition).
If the right to perform the act is extinguished, the procedural time limit is mandatory. If the possibility of performing an act or the starting time of another period can be deferred to a specific point in time, the time limit is extendable.
A procedural time limit can be established by law or by order of the court.
Non-working days in Portugal pursuant to the above Regulation include:
1 January, Good Friday (date varies from year to year; in 2005 it fell on 25 March), 25 April, 1 May, Corpus Christi (date varies from year to year; in 2005 it fell on 26 May), 10 June, 15 August, 5 October, 1 November, 1 December, 8 December, 25 December.
The general rule in Portuguese civil procedural law is that, in the absence of any specific provision, the time limit is 10 days for the parties to apply for any act or judicial proceeding, plead nullity, file an incidental plea or exercise any other procedural right; the time limit is also 10 days for the party to respond to the other party's claim (Article 153(1) of the Code of Civil Procedure).
As a rule, the starting time for any response is always the notification of the act in question (Article 153(2)).
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. 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. Notification by e-mail is presumed to be effected on the date of dispatch, duly certified.
In the above cases, the time limit runs therefore from the time when the notification is presumed to have been effected. However, the person being notified can always show that the notification was not effected at the presumed time for reasons beyond their control (Articles 253 and 254).
Service by recorded delivery letter, with an advice of receipt, is deemed to have been done on the day on which the advice of receipt is signed and to have been effected by the person to be served even if the advice of receipt was signed by a third person (Article 238(1) of the Code of Civil Procedure).
If the person being served 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 situation, the relevant event from which the period starts to run is the date when the incident is recorded (Article 237(3) of the Code of Civil Procedure).
If the letter is returned because the addressee has not collected the letter from the post office within the statutory time limit or because a person other than the person being served refuses to sign the advice of receipt or to receive the letter, the service is repeated and another registered letter with advice of receipt is sent to the person being served, warning him of the legal consequences. In this case, the letter itself, on an officially approved form, is left, containing a copy of all the compulsory information, and the postman must record the date and exact place of posting the letter and must immediately forward this record of service to the court. If it is not possible to post the letter through the letter box of the person being served, the postman leaves a notice for the addressee. In this situation, service is deemed to have been effected on the date recorded by the postman or, if a notice has been left, on the eighth day after that date, and it is from that point that the procedural time limit initiated with the service begins to run (Articles 237 and 238 of the Code of Civil Procedure).
When service is effected via a legal representative, a court bailiff or a court clerk, the time limit begins to run from when the person being served signs the record of service (Articles 239 and 245 of the Code of Civil Procedure).
Civil procedural law provides for an extension (additional period granted by the legislator) to reflect the geographical distance between the place of service and the court where the case is being heard or the fact that the person being served was not served personally. In these circumstances, the mandatory time limit begins to run only from the end of this extension.
Service is effected through public notices and announcements when the whereabouts of the person being served are uncertain. In these circumstances, service is deemed to have been effected on the day on which the last announcement is published or, if there are no announcements, on the day on which the public notices are displayed; the deadline for submitting a defence runs from the end of the legal extension of the time limit (Articles 248 and 250 of the Code).
Yes. See the answer to the previous question.
When such a period is expressed in days, the time limit begins to run from the day following the date of service, notification or the relevant event that sets it in train.
The actual date of the act, event, decision or date of service and/or intimation which begins it does not count.
Yes. The answer given to question 4 also applies here.
The procedural time limit laid down by law or established by court order is continuous. It is, however, suspended during judicial vacations, unless it lasts for six months or more or in the case of acts in proceedings statutorily classified as urgent. When the time limit for carrying out a procedural act ends on a day when the courts are closed, the period is extended to the next working day (Article 144 of the Code of Civil Procedure).
It follows that, except for the period of judicial vacations, the procedural time limit includes all calendar days although the act can be carried out on the next working day after the end of the period if it falls on a day when the court is closed.
Judicial vacations run from the 22 December to 3 January, from Palm Sunday to Easter Monday and from 1 to 31 August.
If, for example, in a proceeding a person has to react within 14 days to a document served on 4 April 2005, he or she must respond before 18 April.
When such a period is expressed in months or years, the starting point is determined in the same way, i.e. the period begins to run from the day following the date of service, notification or the relevant event that sets it in train.
A time limit expressed in days ends after the number of days of the period is added to the starting point, as described in the answer to question 5b).
A period expressed in weeks, months or years and starting from a certain date ends at 24.00 (midnight) of the corresponding day in the last week, month or year but, if the corresponding day does not exist in the last month, the period ends on the last day of that month (Article 279(c) of the Civil Code).
There are not, therefore, any starting points that apply exceptionally or specifically.
The courts are only open on working days.
The rule for calculating all procedural time limits is that the end of the period for carrying out the procedural act is extended to the following working day if it falls on a date when the courts are closed
The relevant event in this situation is the place of service and not the place of residence.
Under Portuguese civil procedural law, the normal time period is extended by 15 days when the document is served on the defendant in the territory of the Autonomous Regions and the proceeding takes place on the mainland or another island, or vice versa, or by thirty days when the document is served on the defendant abroad (Article 252A of the Code of Civil Procedure).
In some situations provided for by the law, these rules also apply to notifications (Article 252 of the Code).
Again, it is not the place of residence but of service that is relevant. The extensions mentioned in the answer to the previous question also apply in the circumstances described here if the person being served receives the service outside the island territory or abroad.
In view of the broad interpretation given to civil matters in the context of European judicial cooperation in civil and commercial matters, it has to be said that there are such specific time limits in Portuguese law - for example, in the labour field.
Statutory time limits cannot be shortened.
The procedural time limit established by law can be extended in the cases provided for. With the parties' agreement, the time limit can be extended once and for the same length of time (Article 147 of the Code of Civil Procedure).
The defendant on whom an application has been served to respond to a given civil action has a time limit for filing a defence. This can be extended according to the geographical distance between the place of service and the place where the court sits or to other factors established by law, which do not include the place of residence of the person to be served. The answer to this question is therefore that this benefit would not exist in the situation described.
The expiry of the mandatory time limit extinguishes the right to bring the action (Article 145 of the Code of Civil Procedure).
Non-observance of some periods can incur a fine.
The act can be carried out after the time limit in cases of justified impediment, in other words, as result of an event not attributable to those subject to the time limit or their representatives, which prevents a given act from being carried out in time. In this case, the party that alleges the impediment must immediately provide supporting evidence (Article 146 of the Code).
In cases other than justified impediment, the act can be carried out within the first three working days following the end of the time limit, subject to payment of a fine (Article 145 of the Code).Top
Last update: 12-06-2007