MACAU

BUSINESS
LAW
JorgeAFGodinho
AssociateProfessor
UniversityofMacau
jgodinho@umac.mo

[shortversion lastupdated6Jan2011]

1
 Sourcesofinformation
OfficialPrintingHouse
www.imprensa.macau.gov.mo
MacauCourts
http://www.court.gov.mo
LegalAffairsBureau
http://www.macaolaw.gov.mo
LegislativeAssembly
http://www.al.gov.mo
GovernmentofMacau
http://www.macau.gov.mo/

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 www.ipim.gov.mo MacauInvestmentPromotionBoard
www.dsf.gov.mo MacauFinanceDepartment
www.amcm.gov.mo MacauMonetaryAuthority
www.dicj.gov.mo MacauGamingInspectionand
CoordinationBureau
www.economia.gov.mo MacauEconomicServices
Department
www.aam.org.mo MacauLawyersAssociation
www.ieem.org.mo InstituteofEuropeanStudiesofMacau
www.mp.gov.mo MacauPublicMinistry
www.pj.gov.mo MacauJudiciaryPolice
www.fsm.gov.mo MacauSecurityForces
www.wtcmacau.com MacauWorldTradeCenter
www.dsal.gov.mo MacauLabourAffairsBureau
www.cfjj.gov.mo MacauLegalandJudicialTraining
Center
legismac.informac.gov.mo Legismacdatabase
www.dsec.gov.mo MacauStatisticsandCensusService3
www.ccac.org.mo ComissionagainstCorruption
Preliminary
Basiclegalconcepts

4
 WhatisBusinessLaw?
BusinessLawisnotabranchoflaw
Nosuchdisciplineexistsinlawschools
Whatwecallbusinesslawissimplya
selection oflegalissuescovering:
astraightforwardintroductiontothe
law
basicissuesofthelawrelatingto
privateeconomictransactions,
includingthegeneralpartofcivillaw,
obligationlawandcommerciallaw 5
 Whatisthelaw?
Whatisthelawingeneral,asa
separatefield?
Thereareentirelibrariesdevoted
tothegeneralenquiryaboutthe
law,andaspecificacademic
discipline:legaltheoryor
jurisprudence

6
 Whatisthelaw?
Thelawisasocialandcultural
reality
Itisnotanexactscience
Lawchangeswithtime
Thelawisinconstantmodification
Lawchangeswithspace
Itisdifferentfromcountrytocountry

7
 Whatisthelaw?
Thelegalsystemisasetofrulesthat
existsandgovernthelifeofpersons
inaspecificsociety
Thelawcanbeappliedbyforce,
throughtheStateapparatus,if
necessary
Thereareothersystemsofrulesin
sociallife:religion,morals,social
conventions.Thesecannotbeapplied
byforce 8
 Rulesandprinciples
Legal regulation is made of:
Legal principles (e.g., equality)
Rules (with a IF.. THEN.. structure):
General rules
Special rules
Exceptional rules

9
 Logicalstructureofnorms
Thelawdefineswhatis:
Permitted(whatcan bedone)
Freedomsandrights(eg,therightto
voteorthefreedomtoopenabusiness)
Mandatory(whatmust bedone)
Obligations(eg,thedutytopaytaxes)
Forbidden(whatmustnot bedone)
Prohibitions(eg,criminallaw
punishmentofmurder,rape,theft,etc)
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 General structure of legal systems: the pyramid

Lawyers usually think of

the legal system as a
Constitution pyramid with various levels
Constitutional level vs
ordinary level vs
Ordinary laws administrative practices

Administrative regulations and practices

11
General structure of legal systems: various levels, which may be
in tension with each other
Tensions among the
various levels of a legal
Constitution system are normal:
higher levels may remain
partly uncomplied with by
lower levels, which are
Ordinary laws
therefore partly illegal
higher levels may remain
partially ineffective
Administrative regulations and practices

12
Introductionto
MacauLaw

13
 Materials:

MacauBasicLaw

JorgeGodinho,MacauBusinessLawand
LegalSystem,LexisNexis,HongKong,
2007,pages112(14)

14
 Macaupoliticalcontext
MacauisaterritoryofthePRC
MacauisnowaSpecialAdministrativeRegion ofthe
PRC
MacauwasadministeredbyPortugalfromthe
16th centuryuntil19December1999,butnot
alwaysinthesameway
Macauwasreturnedon20December1999tothe
PRC;thiswasdoneundercertainconditions
agreedbetweenChinaandPortugal
Suchconditionsarespelledinatreaty:theSino
PortugueseJointDeclaration,signedin1987 15
ThecurrentMacaupoliticalcontext
isexplainedbyalonghistory,and
bytheprecedentsetbyHongKong
Thehistoricalbackgroundofthe
Portuguesepresenceexplainsthecurrent
politicalandinstitutionalframework
Thecurrentframeworkisextremely
similartoHongKong,whichwasreturned
tothePRCearlier,in1997
16
 Chinese and Portuguese maritime
expansion and exploration

In the 15th century both countries engaged in

maritime ventures
What if Chinese and Portuguese ships had
met, in the open sea, in the 15th century,
along the coast of Africa?

17
Chinese maritime expeditions 1405-33

18
Maritime expansion of the Portuguese
Soon after the expeditions of Zheng He
were ended by the Ming Court, the
Portuguese were the first Europeans to
arrive by sea in Asia, in the 16th century,
heralding the start of globalization

19
 The arrival of the Portuguese
The Portuguese
were allowed to
settle
permanently in
Macau in 1557
by local Chinese
authorities due
to being useful
Piracy went on until the 20th century. A
for combatting monument in Coloane has been erected to
piracy those who died fighting pirates in 1912
20
21
 Portuguese trade routes (green)
(in yellow, Spanish trade route from the Philippines to Mexico)

22
 Macauhistory Periods
15571845:mixedjurisdiction(bothChinese
andPortugueseauthoritiesinMacau)
18451974:colonialperiod
19741999:postcolonialPortugueserule
19992049:Chineseadministrationunder
termsagreedwithPortugal
From2049:Chineseunrestricted
administration
23
15571845:mixedjurisdiction(Chinese
Portuguese)

Therewere
Portugueseand
Chinese
authoritiesand
customshouses
Portugueselaw
andChineselaw
wasapplied Illustration of the #1 Patrol Ship Traditional Ch'ing battleship
before the Opium War,with yellow slips showing construction and
equipment;38x35.5cm;dated the 22nd year of the Chia-ch'ing
24
reign[1817]) [Source: Taiwan National Palace Museum]
 1839-1842: First
Opium War
The territory of Hong Kong was
shaped in three stages. Hong
Kong island was ceded in
perpetuity in 1842 by imperial
China (Qing dinasty) as a result of
the English prevalence in the first
Opium War (Treaty of Nanking).
The possession was then enlarged
to include the Kowloon peninsula
in 1860, also in perpetuity. Finally,
the large area known as the New
Territories was leased for 99 years
in 1898 25
One of the first pictures of Macau, taken in 1844

26
 1845-1974: colonial
period

Governor Ferreira do
Amaral arrived in
Macau in 1845 with
the mission of
turning Macau into a
real colony and end
Chinese power

The statue of Governor Ferreira do Amaral

stood in front of Hotel Lisboa until 1992,
27
when it was removed
 18451974:colonial
period
Governor Ferreira do Amaral
succeeded in this policy:
expelled the mandarins of
Macau, abolished the Chinese
customs, ended the payment of
the hoppo (rent), opened the
harbor, built roads, occupied
Taipa island
Authorized gaming houses
(Fantan)
Was killed in August 1849 28
 Second World War
Hong Kong was occupied by Japan in the Second World War in 1941
During the Second World War Portugal remained nominally neutral, and
therefore Macau was not invaded by Japan

29
 between the
Nationalist Chinese Civil War
Kuomintang,
and the
Chinese
Communist
Party
Culminated
with the
creation of the
PRC in 1949
and the retreat
of the
Kuomintang to
Taiwan
(Formosa)
island
30
 No formal diplomatic relations between
1949 and 1979
Portugal had had formal relations with Taiwan, not
Beijing. Relations with Taiwan were ended in January
1975
The status quo on Macau was kept
China never wanted to use force and invade Macau or
Hong Kong
There were informal contacts via the local business
elite
China always insisted that Macau and Hong Kong
were Chinese and should be returned when conditions
were ripe
31
Antnio Salazar (ruler of Portugal from 1932 to 1968)

The right wing dictatorship

rgime of the Estado Novo
or Second Republic (which
lasted from 1926 to 1974)
never wanted to engage
diplomatic relations with
the victorious communist
Chinese State that took
over the power on October
1949
32
Very serious riots
occurred in Macau in
December 1966 during
the period of the
Cultural Revolution. But
the Portuguese presence
was not ended.
The Peoples Liberation
Army and the more
moderate leaders of the
PRC avoided an invasion
of Macau by Red
Guards, to stop potential
repercussions in Hong 33
Kong and internationally.
 1974:democraticrevolutionin
Portugal
Portugal started a global decolonization
policy
All colonies except Macau were granted
independence soon after 1974
The 1976 Portuguese Constitution did not
describe Macau as Portuguese territory,
implying that it was Chinese territory

34
 1974 1999
postcolonial period
After the democratic revolution of
25 April 1974, Portugal
immediately granted
independence to all its former
colonies in 1975 and 1976
But Macau could not become an
independent country (Republic of
Macau): China would never
accept that. So the issue was more
complicated and could not be
solved quickly 35
 Post-colonial period 1974-1999
A large degree of autonomy of the territory of
Macau from the Portuguese Government in
Lisbon was created after 1974
This autonomy is the basis of Macaus current legal
status and was continued in the Basic Law
Key legal basis: the Macau Organic Statute, a
Portuguese constitutional law
The 1976 Organic Statute reformed the Macau
system of government, namely creating the
Legislative Assembly, with a partially democratic
composition 36
 TreatiessignedontheissueofMacau
betweenChinaandPortugal
1887 TreatyofFriendshipand
Commerce(TreatyofPeking)
ImperialChina/Kingdom
ofPortugal
1928 PreliminaryTreatyof
FriendshipandTrade
RepublicofChina/Republic
ofPortugal(2ndRepublic)
1987 SinoPortugueseJoint
Declaration
PeoplesRepublicofChina/
RepublicofPortugal(3rd
Republic)

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 Contextofthe1987JointDeclaration
1974:democratic
revolutioninPortugal
1978:startofeconomic
reformsinChina
article31ofthe1982
ChineseConstitution:
onecountry,two
systemspolicy(under
paramountleader
DengXiaoPing)
1984:PRCandUK
signajointdeclaration
onHongKong
1987:MacauJDsigned
38
 Governor Garcia Leandro (g. 1974-1979)
First post-colonial Macau Governor:
military, involved in the revolution,
appointed at age 34
In these years, Macau moved from
being operated like a colony (where
most issued depended from Lisbon)
and started to operate with a high
degree of autonomy (where most
issues were decided locally, without
having to ask Lisbon)
Conducted a tough renegotiation of
the casino concession contract (raised
the gaming taxes from around 9
million p.a. to around 100 million in
just a few years)
 Agreement on the issue of Macau
A secret agreement
had been reached
in 1979 between
China and Portugal
In 1985 the two
countries
announced that
Macau would
Portuguese President Ramalho Eanes
return to China and paramount leader Deng Xiaoping,
in Beijing, May 1985, discussed the
issue of Macau 40
TheSinoPortugueseJointDeclaration
onMacau
ChinaandPortugalnegotiatedMacau
between30June1986and26March1987
13April1987:JointDeclarationsignedin
Beijing

41
 CurrentframeworkofMacau
internationalizedframework:Chinese
administrationistobeconductedfor50
years(19992049)underbindingterms
agreedbetweenPortugalandChina
Uponresumptionofsovereignty,thePRC
establishedtheSpecialAdministrative
RegionofMacauofthePeoplesRepublicof
China

42
The last day of Portuguese
administration
19December1999

43
Handover
cerimony
Last Governor
Vasco Rocha
Vieira (g. 1991-
1999) and first
Chief Executive
Edmund Ho (g.
1999-2009)
44
45
20 Dec 1999 - Jiang Zemin, Zhu Rongji, and the first generation
of top leaders of the Macau SAR

46
Nov 2010 Hu Jintao, Wen Jiabao and the second
generation of top leaders of the Macau SAR

47
 Currentframeworkof
Macau
TheMacauSARisalocalentitydirectly
undertheCentralPeoplesGovernment
(art.12BL)
Governmentdepartments,provinces,
autonomousregionsormunicipalities
maynotinterferewiththeMacauSAR
(art.22BL)

48
 TheMacauBasicLaw

Approvedin1993bythe
NationalPeoples
Congress
TheBasicLawisalmost
likeaconstitutionfor
Macau
TheRegionenjoysahigh
degreeofautonomy
49
 TheautonomyoftheMacauSAR

Macauenjoyslegislative,financial,
administrativeandjudicialautonomy
TheCentralPeoplesGovernmentappoints
theChiefExecutiveandotherofficials
TheRegionhasnocompetenceindefense
and,inprinciple,inforeignrelations(arts.
13and14,BL);thesemattersareforthe
CentralPeoplesGovernment
50
 TheRegionhasnocompetenceindefense
The Joint Declaration was silent on
whether there would be troops in
Macau
It seemed that it would not be
necessary to have a garrison on the
PLA, since Macau is so small
However, it was announced before
1999 that there would be a military
presence
On 20 Dec 1999 the PLA move to
Macau
It is a basically symbolic presence,
a sign of the sovereignty of the
PRC
51
 InternationalstatusoftheMacauSAR
quiteunique:doesnoteasilyfitinknowncategories
TheSARhassomecapacityininternationalrelations,
butnotonmattersrestrictedtosovereignStates
Macau,asMacau,China,isamemberofanumberof
internationalorganizations;e.g.,Macauisafounding
memberoftheWTO
MacauissuesSARpassports,hasitsownborder
controlsandmayconcludevisaabolitionagreements
withforeignstatesorregions(art.140BL)
Generally,theSARsofMacauandHongKonghave
morepowersthanafederatedState
52
 Theprincipleofcontinuity

Thetransferofsovereigntyhasnot
causedmajorchangesinthelegalsystem
ofMacau
Thelegalsystemremainsbasically
unchanged(arts.8and18BL)
Namely,allofthemajorcodes
However,somelawsdidnotcontinueto
apply,asstatedintheReunificationLaw
53
 Theprincipleofcontinuity

Withfewexceptions,alllegislation
previouslyinforceinMacauremainsin
forceafterthetransfer
ThelegalsystemofMacauremains
separatefromotherlegalsystemswithin
thePRC
Nationallawsshallnotapplytothe
Region,exceptasprovidedforinAnnex
IIIoftheBasicLaw(art.18(2)BL)
54
 Whatwillhappenin2049?
TheSinoPortugueseJointDeclaration
agreedbetweenChinaandPortugal
lastsfor50yearsonly
After2049:Chineseunrestricted
administration,andChinashallbefree
frominternationallawobligations
arisingfromtheJointDeclaration

55
 Whatwillhappenin2049?
Thismeans,forexample,that:
thestatusofSpecialAdministrativeRegionmayberevoked(butit
doesnothavetoberevoked)
theBasicLawitselfmayberevoked(butthisisnotcompulsory)
Macaumaylosethelimitedcapacityininternationalaffairsthatit
hasundertheBasicLaw
thelocalcurrencymaybeeliminated,replacedbytheRMB
Theofficiallanguagesmaychange
Hopefully,ways will be found topreservethe distinct
culture andheritage ofMacau,forthe benefit ofall Macau
residents andChinain general

56
Economic
issues

57
 Economiccontext
onecountry,twosystems
socialistsystemandpoliciesshallnotbe
practicedonMacau
thepreviouscapitalistsystemandwayof
lifetoremainunchanged
therightofprivateownership,including
theownershipofenterprisesand
investmentsfromoutside,tobeprotected
bylaw
58
 Constitution of the PRC Preamble
[extracts]
After waging hard, protracted and tortuous struggles,
armed and otherwise, the Chinese people of all nationalities
led by the Communist Party of China with Chairman Mao
Zedong as its leader ultimately, in 1949, overthrew the rule
of imperialism, feudalism and bureaucrat capitalism, won
the great victory of the new-democratic revolution and
founded the People's Republic of China. Thereupon the
Chinese people took state power into their own hands and
became masters of the country.
59
 Both the victory of China's new-democratic revolution and the successes of
its socialist cause have been achieved by the Chinese people of all nationalities
under the leadership of the Communist Party of China and the guidance of
Marxism-Leninism and Mao Zedong Thought, and by upholding truth,
correcting errors and overcoming numerous difficulties and hardships.
Under the leadership of the Communist Party of China and the guidance
of Marxism- Leninism and Mao Zedong Thought, the Chinese people of all
nationalities will continue to adhere to the people's democratic dictatorship and
follow the socialist road, steadily improve socialist institutions, develop socialist
democracy, improve the socialist legal system and work hard and self-reliantly to
modernize industry, agriculture, national defence and science and technology step
by step to turn China into a socialist country with a high level of culture and
democracy. The exploiting classes as such have been eliminated in our country.
However, class struggle will continue to exist within certain limits for a long time
to come. The Chinese people must fight against those forces and elements, both at
home and abroad, that are hostile to China's socialist system and try to
60
undermine it.
 Macau SAR Basic Law - Preamble
Macao, including the Macao Peninsula, Taipa Island and Coloane Island, has been part of the
territory of China since ancient times; it was gradually occupied by Portugal after the mid 16th century.
On 13 April 1987, the Chinese and Portuguese Governments signed the Joint Declaration on the
Question of Macao, affirming that the Government of the People' s Republic of China will resume the
exercise of sovereignty over Macao with effect from 20 December 1999, thus fulfilling the long cherished
common aspiration of the Chinese people for the recovery of Macao.
Upholding national unity and territorial integrity, contributing to social stability and economic
development, and taking account of its history and realities, the People' s Republic of China has decided
that upon China's resumption of the exercise of sovereignty over Macao, a Macao Special Administrative
Region will be established in accordance with the provisions of Article 31 of the Constitution of the
People's Republic of China, and that under the principle of " one country, two systems",
the socialist system and policies will not be practiced in Macao. The basic policies
of the People's Republic of China regarding Macao have been elaborated by the
Chinese Government in the Sino-Portuguese Joint Declaration.
In accordance with the Constitution of the People' s Republic of China, the National People' s
Congress hereby enacts the Basic Law of the Macao Special Administrative Region of the People' s
Republic of China, prescribing the Systems to be practiced in the Macao Special Administrative Region,
in order to ensure the implementation of the basic policies of the Peoples Republic of China regarding
61
Macau.
 EconomyofMacau:basics
liberalcapitalism,privatepropertyandfree
enterprise
financesoftheRegionseparatefromthose
ofthecentralgovernment
Lowtaxation,butnotexactlyataxhaven
Mainrevenuefromtaxongaming
Freeport
Currencyfreelyconvertible(MOP);no
exchangecontrols
62
The importance
of casino gaming

Macau regulated gaming in the 1840s to raise

desperately needed tax revenue
The situation has not changed ever since, and Macau
is more and more dependent on gaming, now in the
region on 70% of the budget
Efforts to diversify the economy have mostly failed
63
 Land reclamations
The land area of Macau
has been constantly
growing in the last 100
years: still, Macau is quite
small, with only 29 sq km
at the moment
Macau used to be made of
three parts: Macau, Taipa
and Coloane, but in the
1990s a fourth
component was added:
the COTAI area
64
 New large land reclamations will be taking place in
coming years
A consultation period was
opened in June 2010 regarding
future land reclamations in
Macau and Taipa, of around
350 hectares, to be executed
over the next 5 years
The general design of the
projects should be completed
during the first semester of
2011
It has been mentioned that the
new reclamations shall not be
used for casinos
For more information see the
Government website at
http://dssopt.gov.mo/pt/AB 65
CDE/index.php
In June 2009 it was announced
that Macau will also be using 5
sq km in Henqin Island, Zhuhai

66
 The new campus of the University of Macau
will be located in Hengqin island, featuring:
Access without a physical border
The law of Macau shall apply
Macau pays to Zhuhai 1.2 billion patacas
including land concession and expenses

67
68
Hong Kong-Zhuhai- Work started in 2009, to be
Macau Bridge completed in 2016 69
 China and the relations with Portuguese-
speaking countries
It is an official policy of China to develop trade
and economic relations with Portuguese-speaking
countries, using Macau for this purpose
See http://english.mofcom.gov.cn/subject/chinaportuguese/index.shtml

70
COMPARATIVE LAW ASPECTS

71
 Comparative law
It is normal to identify families or types of
legal systems on the basis of various structural or
defining factors
Understanding comparative law is important for
many reasons: practical lawyer work,
interpretation of the law (due to transplants),
academic research, legislative studies (new legal
transplants, which should be made carefully),
etc
72
 Families of legal systems

Most classic division: civil law vs common

law
Plus mixed legal systems
What about the socialist family of legal
systems?
How about all other legal systems of the
world? Where to put them?

73
 Familiesoflegalsystems
Socialistlegalsystems:basedonclassstruggle,
MarxismLeninismMaoism,guidanceofa
CommunistParty
PRC,Cuba
WesternstylecivillaworRomanGermanlegal
systems
continentalEurope,SouthAmerica,Japan,
Taiwan,Thailand,Vietnam,etc
WesternstylecommonlaworEnglishbasedlegal
systems
USA,Canada,HongKong,Singapore,
Malaysia,Philippines,Australia,NZ,India,etc.
74
 ThelegalsystemofMacaufroma
comparativelawperspective

ThelegalsystemofMacauisbasedonthe
Portugueselegalsystem
Portugueselegalsystembelongstothecivillaw
familyandtradition:
basedonwrittenlegislation
mainlycodified
Caselawnotaveryimportantsourceoflaw
ThelegalsystemofMacauisalmostcompletely
separatefromthelegalsystemofmainlandChina
75
Legalsystems ofthe world

76
 Characteristicsof
civillawlegalsystems
basedontheassimilationofRomanlaw
Germaninfluencealsopresent
Statutes(writtenlegislation)arebyfarthe
mostimportantsourceoflaw
Codification.Majorfivecodes:Civil,Civil
Procedure,Criminal,CriminalProcedure
andCommercial
decisionsofcourts(caselaw)havealimited
andsecondaryrole 77
 Romanlawbasis
MacauandPortuguesecivillaworiginateon
Romanlaw
TheRomansweregreatlegislators,andbuilt
acomplexsystemofrulesandprinciples,
includingtheregulationofcommercial
transactions
RomanlawappliedallthroughtheEmpire
In395A.D.theEmpirewasseparatedintwo
parts:EastandWest
78
79
80
 ThereceptionsofRomanlaw

Romanlawreachedourdaysthrough
variousphenomenaofreception
MiddleAges
Humanism

81
 ThethirdreceptionofRoman
law:Pandectism
Fromtheendofthe18thcenturythe
GermanPandectistmovementfocused
onthemodernapplicationofRoman
law
Thisculminatedwiththeapprovalof
theGermanCivilCode(BGB)in1896

82
 Codification
Inthe19thcenturystartedamovetowards
codification
Romanlawwasorganizedinalogicaland
systematicway,usingconsistentandclear
terminology
ACodeisscientific,systematicandsynthetic
codificationprovidedaclarificationofthe
legislationinforce.Previously,therewerea
varietyofsources(Romanlaw,national
legislation,customarylaw,etc.)whichoften
conflicted 83
 TheFrenchCivilCode
(1804)

Thefirstimportantandinfluentialmoderncode.It
wasthefirstefforttopresentcivillawaccordingto
onecentralidea,ofindividualfreedomand
liberalism.Thisisclearfromitsstructure:
Book1 Persons
Book2 Propertyanditsmodifications
Book3 Differentmeanstoacquireproperty
(succession,donations,contracts,marriage,mortgages,
etc)
So:theperson,asindividual,needsproperty,which
istobetransacted. 84
TheGermanCivil
Code(1896)
GeneralPart
Obligationlaw
Propertylaw
Familylaw
Successionlaw

Generally,lessideology,moretechnique,
andgreatconceptualrefinement
IndirectmajorsourceoftheMacauCivil
Code 85
 Traditionoflogicaland
classificatoryscientificmethods
influenceofGermanPandectism
greatimportancetotherationalorganizationand
orderingofconcepts
lawsandcodesdraftedusinglogicalrational
techniquesincludinglogicaloutlinessuchas:
dynamicapproach analysisoflegalissuesinto:
creation,modification,transferandextinction;
Useofoverarchingabstractconcepts(suchasthe
conceptoflegalrelationusedintheCivilCode)
Useoffundamentaldistinctions(e.g.,betweenabsolute
andrelativelegalrelations) 86
 ModerninfluencesofMacaulaw
Portugueselaw(manyaspects)
Chineselaw(especiallyintheBasicLaw)
German(e.g.,generalpartofPenalCode;
CivilCode)
Italian(e.g.,variousregulationsincluded
intheCommercialCode)
EUlaw(e.g.,companylaw;agency
contract;unfaircontractterms;product
liability;antimoneylaundering)
Commonlawlegalsystems(e.g.,floating
charge;companysecretary)
Others:Brazil(fiduciarysaleinguarantee),
QuebecCivilCode,etc 87
 Maincharacteristicsofcommon
lawlegalsystems
Romansinfluencedidnotreappearin
England
Alegalsystemwithatechniquedifferent
fromcontinentalEuropewascreated
Sourcesoflaw:
commonlaw(inastrictsense)
equity
statutes(orstatutelaw)
88
Courtdecisionsasasourceoflawin
commonlawlegalsystems
Commonlaw
thelawdevelopedbytheroyalcourtsof
commonlaw
Equity
lawdevelopedbytheCourtofChancery
precedents are previous cases: English courts
have a habit of following their previous
decisions. If there is not any, a new rule has
to be developed.
89
 The PRC and comparative law
One sovereignty, two social systems, three legal traditions
(J. Godinho):

Mainland: socialist, or socialism with

Chinese characteristics, with influence from
civil law legal systems
Macau: Western-style civil law
HK: Western-style common law
90
The Macau judicial system

91
 Publicjustice
Oneofthekeyconceptsofmodernlegalsystems.
Itmeansthatpersonsarenotallowedtodojusticeby
theirownhands(privatejustice).
Theadministrationofjusticeisinthehandsofthe
State,which,accordingtotheideaofseparationof
powers,hassetupspecialbodies,thecourts,forthat
purpose.
Onlyinverylimitedcasesitislegalforapersonto
dojusticebyhisorherownhands,suchasinthe
casesofselfdefenseorretention.

92
 Independenceofcourts

Courtshavethepowertoadministerjustice,
applyingthelawtothecasesbroughtbefore
them
Shouldbeindependentfromtheother
powersoftheState,andthereforefreefrom
pressures
Courtsandjudgeshaveonlythedutyto
respectthelaw,notanyonesinstructions
Thisisregardedasabasicrequirementofthe
ruleoflaw 93
 Macau as a civil law legal system

Macau is a civil law legal system, so case law

does not have degree of importance found in
common law legal systems
The various codifications are the primary
driving force of the legal system: Civil Code,
Penal Code, Commercial Code, etc

94
 Macau as a civil law legal system
However, case law is not irrelevant
It is quite important in new or unclear issues
Lower courts tend to follow
It becomes very important in a small place like
Macau where judicial interpretations may
become de facto irreversible in the absence of
legislative changes, especially due to the small
number of judges in the CFA

95
 Organizationofcourtsingeneral

Supreme Court

Court of Appeal Court of Appeal

County Court County Court County Court County Court

96
 The evolution of the judiciary organization

Stages:
Until 1993: county
1993 to 1999:
creation of a
second instance
From 1999; three-
level judiciary

97
Until1993MacauwasacountywithinthePortuguese
judiciaryorganization:Macauwasintegratedinthe
Portuguesecourtsystem.Appealsweremadetothe
LisboncourtofappealandSupremeCourt

Supreme Court

Court of Appeal Court of Appeal

County Court County Court County Court County Court

98
 OrganizationofcourtsinMacau

Until1993,MacauwasintegratedinthePortuguese
courtsystem:appealsweremadetotheLisboncourt
ofappealandSupremeCourt
Theprocessofcreatinganindependentsystemof
courtstookplaceinstages.
Thefirststage,accomplishedin1993,wasthe
creationofacourtofappealinMacau,theTribunal
SuperiordeJustia(HighCourtofJustice).
Athirdlevelofjurisdiction,wascreatedin1999,to
complywiththeBasicLaw(art.84)
99
 1993to1999
1993sawthecreationofacourtofappealor
secondinstanceinMacau,theTribunal
SuperiordeJustia (HighCourtofJustice)
Itbecamenolongerpossibletoappealto
Lisbononcivilandcommercialmatters:
jurisdictiononthesematterswaslocalized
Inconstitutionalandadministrativematters
theevolutionwasdifferent:jurisdiction
remainedinLisbonuntil1999
Alllinkswereseveredasof1June1999 100
Changesmadeuponthe
transferofsovereignty

Athirdlevelofjurisdiction,wascreated
in1999,tocomplywiththeBasicLaw
(art.84)
TheSecondInstanceCourttookthe
placeofthepreviousTribunalSuperior
deJustia (HighCourtofJustice)
ThisCourt,andalltheirjudges,was
extinguished
Atotallynewbatchofjudges(5)was
appointedtotheSecondInstanceCourt 101
 Court of Last Instance

Court of Second Instance

Court of First Instance (Tribunal

Judicial de Base), with Sections on: Administrative
criminal cases Court
criminal pre-trial and post-conviction (Tribunal
matters Administrativo)
civil and commercial litigation
small claims
labor law cases
family law and minors cases 102
 No appeals allowed
(civil and commercial jurisdiction)
Certain judicial decisions are immediately final
and cannot be challenged
decisions of the second instance (Tribunal de
Segunda Instncia) if the amount involved is less
than MOP$1,000,000
Decisions of the first instance (Tribunal Judicial
de Base) if the amount involved is less than
MOP$50,000

103
 The Court of Final Appeal

Created in 1999
Made of 3 judges only

President: Sam Hou Fai

Judges:
Song Man Lei
Viriato Lima

104
Swearing of five new judges of the first instance court - 18 Sept 2009

105
 The Court of Second Instance

Re-created in 1999, not a direct continuity of

the pre-1999 Court of Justice
President: Lai Kin Hong
Had 5 judges from 1999 to 2009
Currently has 9 judges
Heavy workload

106
 Scrutinizingconstitutionality
Constitutional courts court exist solely to determine if any
norms currently in force violate or not the Constitution; in
Macau, the Basic Law
There is no constitutional court in Macau
All courts must refuse to apply a law on the basis of its
alleged unconstitutionality. See art. 11(2) Basic Law

Ceremony of
opening of
the judicial
year 2009

107
 Legal
professions
Judgesandprosecutors
Alocaltrainingcentrewascreated1995
Seewww.cfjj.gov.mo
Lawyers
mustbemembersoftheMacauLawyersAssociation,
whichrequiresasuitableacademicqualificationanda
traineeshipperiodwhichnormallytakestwoyears
Seewww.aam.org.mo
Notaries:
publicnotariesarecareercivilservants
privatenotaries(created1991)arelawyers
Registrarsarecareercivilservants
108
MACAU BUSINESS LAW
SOURCES OF
Jorge AF Godinho
LAW
Associate Professor
University of Macau IN MACAU
jgodinho@umac.mo

[last updated 6 Jan 2012]

109
 Materials:

Macau Basic Law

Law 13/2009, of July 27
Macau Civil Code

Jorge Godinho, Macau Business Law and Legal

System, LexisNexis, Hong Kong, 2007, pages
23-41 (11-21)

110
 Official languages
Macau is a bilingual legal system, in which Chinese and
Portuguese are official languages
For many years Portuguese was the only official language.
Chinese became an official language in 1991; the Basic Law
states that Portuguese is also an official language (article 9)
The status of the official languages is regulated by DL
101/99/M, of December 13. The general rule is that both
languages have the same legal force and the law states that the
Government is tasked with promoting their use
The equality of both languages does not affect the
fundamental right for each person to select whatever language
for personal and family use, and to learn and teach it. the
principle of equality means that there must not be
discrimination by reason of not mastering one of the official
111
languages
 The problem of the sources of law
The question of determining the sources of law
revolves around establishing in which manner the
principles, provisions and commands that make
up the legal system come into force and start to
apply, so that they are valid and binding as law in a
certain legal order
The matter is essentially of determining the
processes that grant legal validity

112
 Macau as a separate legal system
This discussion make sense for Macau: the
legal system of Macau is autonomous and has
its own sources
This does not mean that it is totally separate
from the PRC, or that it was totally separate
from Portugal
Before the transfer of sovereignty there were
some limited connections to Portugal

113
 Macau as a separate legal system

After the transfer of sovereignty, there are some

limited connections with the legal system of the
PRC
No legislation enacted in mainland China applies
to Macau, except the pieces of legislation
mentioned in Annex III to the Basic Law

114
 Annex III to the Basic Law
National Laws to Be Applied in the Macao Special
Administrative Region
The following national laws shall be applied locally with effect from 20 December
1999 by way of promulgation or legislation by the Macao Special
Administrative Region:
1. Resolution on the Capital, Calendar, National Anthem and National Flag of
the People's Republic of China
2. Resolution on the National Day of the People's Republic of China
3. Nationality Law of the People's Republic of China
4. Regulations of the People's Republic of China Concerning Diplomatic Privileges
and Immunities
5. Regulations of the People's Republic of China Concerning Consular Privileges
and Immunities
6. Law on the National Flag of the People's Republic of China
7. Law on the National Emblem of the People's Republic of China
8. Law of the People's Republic of China on the Territorial Sea and the
Contiguous Zone 115
 Sources of law in Macau

The traditional discussion of sources of

law covers:
custom (customary law) and usage
statutes (written law or legislation)
case-law (court decisions)
doctrine (writings of academics)

116
 Customary law
A custom is made of two elements:
a recognized social practice or common
usage, that is observed and repeated
the conscience of the need to obey it

117
 Customarylaw
Customary law is not an acceptable source of
law in criminal law, at least in what regards
the assertion of the criminal nature of a
conduct
Customary law is a secondary source of law,
with very limited relevance
However, it is very important in the field of
international law

118
 Usage
Usages are repeated practices or routines
(standard procedure), usually followed, but
where there is no formal legal obligation to act in
such manner
Relevant where the law so provides
Art. 2 CC
Important in the field of commercial law
Art. 565 CCom
Countless references to usage are made in the
Commercial Code
119
 Legislation(statutes)

A statute is:
a text or written formula
that contains norms or rules
enacted by a competent authority (parliament or
government)
enacted in accordance with established
constitutional procedures

120
 Legislation (statutes)
Formally, statutes are those issued according to
the procedures governing the legislative power.
In Macau there are two kinds of legislation:
Laws, approved by the Legislative Assembly
Administrative Regulations, approved by the
Chief Executive

121
Rankingofsourcespre1999

Portuguese Constitution

Macau Organic Statute

Laws of the Decree-Laws

Legislative Assembly of the Governor

Portaria of the Governor

122
 Rankingofsourcespost1999

Chinese Constitution

Macau Basic Law

Laws of the Legislative Assembly

Administrative Regulations of the Chief Executive

Executive Orders of the Chief Executive

123
 Law13/2009,ofJuly27

This Law is the most important development on the matter

of sources of law since the transfer of sovereignty
This important Law has clarified a number of aspects that
were not very clear in the Basic Law and were being
discussed:
1. Separation of competences between the LA
and the Government
2. Types of Administrative Regulations
3. How can Decree-Laws be amended
124
 Separation of competences between the
LA and the Government

Some matters are reserved to the LA, and the Government

cannot legislate on that
Other matters are reserved to the Government, and the LA
cannot legislate on that
Other matters can be legislated by both the LA and the
Government
125
Law 13/2009, of July 27, reserves to the Legislative Assembly
the competence to pass laws on the following matters
1) Fundamental rights
2) Status of Macau resident
3) Regulation of the right of residence in Macau
4) Election census and election process
5) Crimes, misdemeanours, penalties and security measures
6) General rules on administrative offences, their procedure
and penalties; but the Government can regulate on
offences with penalties up to MOP 500 000
7) Status of the deputies to the LA
8) Organic structure, functioning and staff of the support
services of the Legislative Assembly
9) Civil Code and Commercial Code
126
 Law 13/2009, of July 27 reserves for the LA the
competence to legislate on the following matters
10) Administrative procedure code
11) Civil procedure, penal procedure, administrative procedure, and
arbitration
12) Register codes and notary code
13) Publication of laws and other matters that must be published in the
Official Bulletin
14) Key features of the regulation of civil servants
15) Budget ant taxes
16) Regulation of land, town planning, urban development and the
environment
17) Regulation of monetary and financial systems and external trade
18) Regulation of ownership, requisition and expropriation
19) Other matters given by the Basic Law to the Legislative Assembly
127
 Law 13/2009, of July 27 grants to the Government the
competence to legislate on the following matters
1) Rules on the development, implementation and execution of
Government policies
2) Rules and procedures for management of public affairs
3) Organization and functioning of the Government and the status of its
members
4) Structure of the public administration and all its departments and
services, including entities with separate legal personality, except those
that depend from the LA, the courts, the Public Prosecutions Office, the
Commission of Audit and the Commission against Corruption, and
other which deal directly with fundamental rights, namely criminal
investigation bodies
5) Organization and functioning of the Executive Council and status of its
members
6) Administrative offences punished by a fine of no more than MOP 500
000,00
128
7) Any other matters that not reserved exclusively for the LA
 TypesofAdministrativeRegulations
Law 13/2009, of July 27 ended a relatively complex discussion
that took place in recent years, which started with three 2006
court decisions of the second instance that have held that
administrative regulations that are not based on a law of the
Legislative Assembly are not valid
In 2007 the Court of Final Appeal has ruled on the matter,
and reversed: Administrative Regulations can be directly based
on the Basic Law and do not necessarily have to always have a
basis on a Law of the Legislative Assembly
See Ac. TUI 18 July 2007, pr. 28/2006
This view was confirmed by Law 13/2009, of July 27
129
 TypesofAdministrative
Regulations
Law 13/2009, of July 27 confirms the decision of
the CFA that ARs may be independent, that is,
ARs do not always have to have a basis on the
Laws of the Legislative Assembly
If a matter is not reserved to the Legislative
Assembly, then the Government may pass ARs
regulating such topic

130
 TypesofAdministrative
Regulations
Art. 4(3): there may be ARs directly based on
the Basic Law, provided that the matter does
not have to be regulated by Law or is not
already regulated by Law:
An independent administrative regulation may create
primary and originary rules on matters not regulated
by Laws.
131
 TypesofAdministrative
Regulations

Art. 4(4): dependent ARs:

Complementary administrative regulations set out the

specifications needed for the execution of laws.

132
 Art. 8: How to amend Decree-Laws that were
approved before the transfer of sovereignty and
are still in force today?

The amendment, suspension or revocation or rules set out by Decree-

Law shall be done:
1) By Law, in the cases mentioned in art. 6; [matters that
should be regulated by Law of the LA]
2) By independent administrative regulation in the cases
mentioned in art. 7(1); [matters that may be regulated by AR
of the CE]
3) By complementary administrative regulation in the cases which
require specific norms for their execution.
133
Law 13/2009,ofJuly 27,also regulates the
drafting style:Laws should be clear,detailed and
precise;Laws cannot be vagueandunspecific

The law should have a detailed/specified content

[contedo determinado], precise and sufficient, which
includes a clear prescription of the commands which are to
create legal rules of conduct for private parties, rules of
action for the public administration and compliance
standards for the judicial decision of disputes.

Art. 4(2), Law 13/2009, of July 27

134
 Law 13/2009,ofJuly 27
In essence, this Law is a key clarification of some
aspects of the Macau Basic Law, especially the
powers of the Legislative Assembly and the
Government
It was decided not to change the Basic Law
(constitutional rigidity) and instead solve the
issues by means of a Law
In this sense, Law 13/2009, of July 27, is no
ordinary law: it was intended as a sort of official
interpretation of the Basic Law 135
 Law 13/2009,ofJuly 27
In practice, this Law seems to have increased
the importance of the Legislative Assembly
For example, the exclusive competence to regulate
all matters relating to fundamental rights is very
broad
But this can be reversed by the Legislative
Assembly itself, because it is just a Law of the
Macau Legislative Assembly and not a formal
amendment of the Basic Law under article 144
BL
136
 Doubtful cases
Regulation of the Arbitration Center for
Property Management, approved by Dispatch
of the Chief Executive 66/2011

137
 Publicationoflegislation
The law has to be known by the public
Publication is on the official newspaper: SAR
Official Bulletin (Boletim Oficial da RAEM) published
weekly, divided in two series (I and II).
Series I published on Mondays. Includes Laws,
Administrative Regulations and delegated legislation.
Series II published on Wednesdays. Includes other
matters such as dispatches, public notices, articles of
incorporation of companies and judicial notices.

138
 Identificationoflegislation
Laws and are numbered sequentially and followed
by the date of publication.
The format after 1999 is: Law nr. NN/YYYY, of
DD MM
Before 1999 is: Law/Decree-Law nr. NN/YY/M,
of DD MM
All legislation approved in Portugal and
subsequently extended to Macau, prior to 20
December 1999, was globally revoked by the
Reunification Law
139
 Entryinforceoflegislation

The general rule is that statutes enter into force

5 days after the publication.
The rule (5 days) applies unless individual laws
provide otherwise. This can be:
increased
reduced

140
 Entryinforceoflegislation

It is possible that a law will produce effects

before it was published. In this case we speak
of retroactive or retrospective effect
The Basic Law expressly forbids retroactive
effect on criminal legislation (art. 29)

141
 Revocationoflegislation

Legislation that is not temporary will stay in

force until repealed or revoked
Revocation occurs when one law ceases the
effect of other law
The suspension of a statute is also possible

142
 Revocationoflegislation
Revocation can be express or implied
It is express when a new law states clearly that a
previous law is revoked
It is implied when the revocation is not stated but
the comparison of two statutes reveals that they
are not compatible. In this case, the new law is in
force
The rule is that the new law revokes the old law.
The new law is the one published after the other
143
 Revocationoflegislation
The revocation of a law that had revoked another
one does not imply that the first one will re-enter in
force
In this case, there is a sequence of three laws. The second
revokes the first and the third revokes the second
The question that may be asked is: when the third law
revoked the second, does this imply that the first one
should re-enter in force ?
The answer is no, unless it is clearly stated that the
intention is precisely that

144
Differences between official languages
There may be discrepancies between the Chinese
and Portuguese versions of a normative act
Should this occur, a meaning compatible with both
languages shall be followed, taking into account
general rules on legal interpretation.
If this is not possible, the meaning better adapted to
the purposes of the regulation shall prevail; DL
101/99/M, of December 13, art. 5(3)
This solution is in line with the general view that the
main element in the interpretation of legal texts is
the intention or function and basic values of the
regulation.
145
Caselaw,jurisprudence,orcourtdecisions
Its importance in civil law legal systems is much
smaller than in common law legal systems,
namely because there is no rule of binding
precedent.
The decisions of local higher courts (Superior
Court of Justice, TSI, TUI) are being published
since 1993
The Basic Law has required the creation of a
three-level court structure
146
 Doctrine
Writings of academics, legal experts, law
professors
Doctrine is not exactly a source of law
However, it is indirectly relevant, especially
where the law is unclear or allows for various
interpretations
Higher courts usually quote legal academics
in support of their opinions
147
 hierarchyorrankingofsources

There are three levels or blocks: constitutional,

legal, and subordinated legislation
The constitutional block is made by the
Chinese Constitution and the Basic Law

148
 hierarchyorrankingofsources

ThelegalblockismadeofLaws and
AdministrativeRegulations
AdministrativeRegulationscannot
contradictLaws
Subordinatedlegislation(Executive
Orders)ismadetogiveexecutionto
Laws,whichcannotbeviolated

149
 Rankingofsourcespost1999

Constitution of the PRC

International law
Macau Basic Law
Laws of the Legislative Assembly
Administrative Regulations of the Chief Executive
Executive Orders of the Chief Executive
150
MACAU BUSINESS LAW

Jorge AF Godinho
BRANCHES
Associate Professor
OFLAW
University of Macau [lastupdated6Jan2012]
jgodinho@umac.mo

151
 Materials
MacauBasicLaw
MacauCivilCode
JorgeGodinho,MacauBusinessLawand
LegalSystem,LexisNexis,HongKong,
2007,pages 2341(1121)

152
 Lawbranches

Thelawcoversallfieldsofhumanactivity
Therearebasicdivisionsofthelegalsystem:
groupsofnormsthatapplytocertainareas
orissuesaccordingtospecificprinciples
and/ortechniques
Thesearethesocalledbranchesoflaw

153
 Lawbranches

Basicdistinction:
publiclaw:activityoftheState,the
publicadministrationandotherpublic
entities(suchasthepublicassociations),
actinginapositionofpower
Privatelaw:activitiesofcitizensamong
themselves(suchascontractsand
commercialenterprises)

154
 Generallegalprinciplesapplyingto
privatelaw
privatelaw:
equalityandfreedom:peopleareequal
andareallowedtodoanythingthatis
notforbidden
Privatelawisbasedmainlyoncodified
andupdatedRomanlaw
Privatelawismorestable
155
 Generallegalprinciplesapplying
topubliclaw
Publiclaw:
authorityandcompetence:publicentitiesare
entitled,undercertainconditions,toimpose
theirdecisionsuponthecitizensand
companies,butcanonlydoitifthelaw
expresslyallowsthemtodoso.
Publiclawismorerecentandisnotcodified.
Publiclawismuchlessstable,evenproneto
suddenchanges,accordingtotheprevailing
politicalideas. 156
 Mainpubliclawbranches

Public Law:
Constitutional law
Administrative law
Criminal law
Public Finance law including
Tax law
157
Mainprivatelawbranches
Private Law:
Common private law or civil law
General Part
Obligations law
Property law
Family law
Succession law
Special private law branches:
Commercial law
Labor law
158
 Constitutionallaw
A Constitution is a law that is above all others: any
norms that go against the Constitution's norms and
principles are deemed to be invalid (or
unconstitutional, which means that they should be of
no effect). Main issues covered include:
a) the political organization of the community;
b) the protection of human rights and basic
freedoms;
c) the basic principles of the economic system.
d) social issues. 159
 ConstitutionallawinMacau
Macau does not have a Constitution.
The status of Macau is regulated by the Constitution
of the PRC (article 31) and the Basic Law of Macau.
The Basic Law provides a complete constitutional
framework.

160
 Separationofpowers
separation of powers: power should not be
concentrated on only one hand because this
leads to abuses
The power must be divided between various
bodies of the State, according to functions:
The functions are
legislative (law-making)
executive (administration)
judicial (solution of conflicts)
161
SeparationofpowersintheUS

162
SeparationofpowersinMacau
Constitution of the PRC

Joint Declaration
Macau Basic Law

Legislative Chief Court of Final

Assembly Executive Appeal

163
The first Chief Executive, 1999-2009
EdmundHoHauWah,ChiefExecutiveofthe
MacaoSAR,ViceChairmanoftheMacao
Legislature
Born: 1955,GuangdongProvince,Panyu

EdmundHoHauWah,male,Hannationality,was
bornin1955inPanyu,GuangdongProvince.He
graduatedfromtheBusinessManagement
DepartmentofYorkUniversityinToronto,
Canadaandbeganhiscareerasanauditor.

Helatermovedintomanagementpositionsin
variousMacaobusinesses.Hewasamemberof
theMacaoLegislature,vicechairmanofthe
MacaoSARPreparatoryCommitteeandin1999
becamethefirstchiefexecutiveoftheMacaoSAR.

Wahwasamemberofthe8thand9thNPC
StandingCommittees.
SOURCE:http://www.chinavitae.com/ 164
 The second Chief Executive
Chui Sai On (Fernando Chui)
(born 1957)

2009 Chief Executive, Central People's Government Macao SAR

19992009 Secretary, Central People's Government, Social Affairs and
Culture Department Macao SAR
Member, Central People's Government, Executive Council Macao SAR
Member, Macao SAR Preparatory Committee
Member, Central People's Government, Legislative Council Macao SAR
Graduate, University of Oklahoma United States of America, Oklahoma, Norman
(Recieved Doctorate in Public Health)
Graduate, California State University USA, California, Sacramento (Health
Management Major)

Source: http://www.chinavitae.com/ 165


Dr. Susana Chou was the first
President of the Macau
Legislative Assembly after the
transfer of sovereignty, from
1999 to 2009, and was
replaced by Lau Cheok Va
SusanaChou,Presidentof
theLegislativeAssembly
oftheMacaoSpecial
AdministrativeRegion
Born: 1941
SusanaChou,female,Han
nationality.Shewasbornin1941,
obtainedherbachelorsdegreein
physicsattheUniversityofAnhui,
andcompletedacourseinFrenchin
Paris,France.In1976,Ms.Chouwas
electedtothe1stLegislative
AssemblyofMacaobydirect
election.Shewasamemberofthe
3rd,4th,5thand6thLegislative
AssembliesofMacaofrom1984to
1999,amemberoftheWorking
CommitteeoftheLegislative
Assembly,andamemberofthe
RegimentandMandateCommittee
ofthe5thand6thLegislative
Assembly.
SOURCE:
http://www.chinavitae.com/
166
 Carlos Augusto Corra
Paes dAssumpo
(1929-1992)
Was the first president of
the Legislative Assembly,
from 1976 to 1991

167
 Anabela Ritchie

Was the second

President of the
Legislative
Assembly, from
1991 to 1999

168
 Lau Cheok Va
Current president of the Legislative Assembly, since
2009

169
 SamHou Fai,PresidentoftheCourtof
FinalAppealofMacao
Born: 1962
SamHou Fai,male,Hannationality.He
wasbornin1962,graduatedfromBeijing
Universityandcompletedhisstudiesin
PortugueseLanguage,CultureandLaw
attheUniversityofCoimbra,Portugal.
HeattendedthecourseofIntroduction
toMacaoLawattheUniversityof
Macao,andthefirstCoreandAdvanced
TrainingCoursesforJudgesandPublic
ProsecutorsattheLegalandJudicial
TrainingCenter.Hewaselected
presidentoftheCourtofFinalAppealof
Macaoin1999.
SOURCE:http://www.chinavitae.com/

170
 PoliticalsystemofMacau
legislativepower:LegislativeAssembly
29members:
12directlyelectedbytheresidents
10electedbyfunctionalconstituencies
7appointedbytheChiefExecutive
electedeveryfouryears(2001;2005;2009;2013)
executivepower:ChiefExecutive
ClearlythemostimportantbranchinMacau
Selectedbyarestrictedcommitteeand
appointedbytheNationalPeoplesCongress
Thetenurelastsfiveyears;renewableonce 171
172
173
174
 AppointedbytheChiefExecutive
20092013 20052009
HoSioKam TsuiWaiKwan
TsuiWaiKwan
PhilipXavier
TongIoCheng
LeePuiLam
ChuiSaiPeng,Jos
LaoPunLap
VongHinFai
LauVengSeng IeongTouHong
SioChiWai ChuiSaiPengJos
SamChanIo

175
176
 Judicialpower
judicialpower:courts
judgesandthecourtsareindependent
andareonlyrequiredtorespectthelaw
Theydonothavetoobeyanyordersor
instructionsasidefromdecisionstakenby
highercourtsonappeal
Courtsareorganizedhierarchicallyfor
appealpurposes
177
 Administrativelaw
regulatestheorganizationandactivityor
procedureofthepublicadministrationand
publicauthorities
Thepublicadministrationisheadedbythe
ChiefExecutive,holderoftheexecutive
power.Inthe19992009periodhewasaided
by5Secretaries,responsiblefordifferent
fields

178
 Macau Goverment
under Chief Executive Edmund Ho
1999-2004 (first term)
2004- Dec. 2006 (2nd term)

179
 Macau Goverment
under Chief Executive Edmund Ho
2007-2009
(2nd term)

180
 Macau Goverment
under Chief Executive Chui Sai On
since Dec 2009

181
 Government
The Government is
an organ which is
made of the Chief
Executive plus the
Secretaries, who
together pass
resolutions
The Secretaries are
all equal among
themselves, and
there are no junior
Secretaries
182
183
 The Secretaries
The Secretaries implement the policies set by the Chief
Executive and are both political and administrative organs
The Secretaries also have political and administrative
functions on their own, that is, acting alone
With regards to their respective field of activity the
Secretaries are predominantly responsible for setting and
pursuing policy options
Their administrative discretion is limited by the applicable
legislation and any relevant orientation of the Chief
Executive
184
 Publicadministration

The public administration comprises:

public departments
public institutes, which have separate legal
personality and financial and administrative
autonomy
public associations
Concessionaires and subconcessionaires

185
 OrganizationchartoftheMacau
Government[nextslide]

Thefollowingistheofficialorganization
chartoftheMacauGovernment
Source:
http://www.gov.mo/egi/Portal/s/safp/apm/RAEM_chart_e
n.html

186
187
 Notethefourentitiesatthetoplevel:
LegislativeAssembly,ChiefExecutive,
CourtsandthePublicProsecutionsOffice
Thiscorrespondstotheconceptof
separationofpowers,andtothefactthat
thePublicProsecutionsOfficeisaseparate
andindependentbodyofmagistrates

188
 NotethesevenentitiesatSecretarylevel:
thefivesecretariesplustheCommission
againstCorruptionandtheCommission
ofAudit

189
 MostGovernment
departmentsarelinkedwith
alinetoacertainSecretary,
butothers(suchasthe
UniversityofMacauandthe
MacauPolytechnicInstitute)
donothavesuchline,
denotingtheirseparatelegal
personalityandhigher
autonomy

190
 SomeGovernment
departmentsare
directlyunderthe
ChiefExecutive

191
 Otherpublicsectorentities

Theofficialchartdoesnotmention:
TheMacauLawyersAssociation,theonly
publicassociationwithregulatorypowers
thatcurrentlyexists
www.aam.org.mo
Themanyconcessionairesand
subconcessionairesofpublicservices

192
 Administrativeconcessions
Formally,underthelawofMacau,manyactivities,
suchasgaming,arereserved tothegovernment
Bymeansofanadministrativeconcession,the
governmentcontractswithaprivateparty(the
concessionaire)therighttoexerciseacertaineconomic
activityexplicitlyreservedtothegovernment,which
shallbemanagedattheriskandcostsofthepublic
concessionaire
Theactivitiessubjecttopublicconcessionsarenormally
crucialtothepopulationandhavebeeneitherentirely
excludedfromthemarketorreservedsolelytopublic
authorities[publicexclusives]
193
 ConcessionsinMacau:examples
CompanhiadeElectricidadedeMacau,S.A. [
;CEM MacauElectricityCompany,Ltd.]
SociedadedeAbastecimentodeguasdeMacau,S.A.R.L. [
;TheMacaoWaterSupplyCompany,Ltd.]
CSR CompanhiadeSistemasdeResduos,Limitada [
;MacauResidueSystemCompany,Ltd.]
CompanhiadeTelecomunicaesdeMacau,S.A.R.L. [
;CTM MacauTelecomCompany,Ltd.]
TDM TeledifusodeMacau,S.A. [;
MacauTelevisionBroadcastingCompany,Ltd.]
Transmac TransportesUrbanosdeMacau,S.A.R.L. [
;MacauUrbanTransportationCo.Ltd.]
Macauport SociedadedeAdministraodePortos,S.A. [
;MacauHarbourAdministrationLtd.]
CompanhiadeTransportesAreosAirMacau,S.A.R.L. [
;AirMacauCo,Ltd.]
CAM SociedadedoAeroportoInternacionaldeMacau,S.A.R.L. [
;MacauInternationalAirport 194

Company Ltd ]
 CasinoGaming
Concessionsand
Subconcessions
inMacau

SJM Wynn Galaxy

PansyHo/MGM MelcoCrown Venetian

195
 Localgovernment

Localgovernment
consistedoftheLeal
Senado andthe
Municipalityofthe
Islands
Thiswasendedin
2001andtheIACM,a
publicinstitutewas
created 196
 Executive Council
advisory organ to the Chief Executive
regulated in the Basic Law (arts. 56, 57 and 58, BL)
Members of the Executive Council are appointed by
the Chief Executive and they remain in office until the
next Chief Executive is selected
The Chief Executive shall consult the Executive
Council before making policy decisions and
introducing bills of laws to the Legislative Assembly
Deliberations and sessions are closed and confidential,
but press releases are issued
197
 Crimeandthelaw
criminallawforbidsandpunishescertainconducts
thatthelawconsidersverydangeroustosociallife
criminallegislationdescribestheforbiddenactsor
omissionsandstatesthepenaltiesthatwillapplyto
personswhocommitit
Crimespunishedtodayinclude,forexample,
offensesagainstpersons(homicide,manslaughter,
rape,injuries),property(theft,robbery,burglary,
fraud,cheating,handlingstolengoods,
counterfeiting,arson,etc.),roadtrafficoffenses,
offensesagainsttheState(treason,sedition),etc.
198
 Criminallaw
Criminallawdiscouragescrimeby
threatheningasufferinggreaterthanthe
potentialbenefit
punishmentsusedtodayareimprisonment
andfines.Deathpenaltywasbannedin1867.
Lifeimprisonmentandgeneralconfiscation
arealsobanned.
Criminallawiscodifiedinthe1995Criminal
Code,inforcein1January1996.
Importantlawonorganizedcrime:1997
199
 nullumcrimen,nullapoena,sinelege
meansnocrime,nopenalty,withoutlaw:
thereisnocrimewithoutawritten,
previous,clearlawstatingthatacertain
conductisacrime
Thisprincipleisaguaranteeagainstthe
abusiveoruncontrollableuseofthepunitive
poweroftheState.
Itpreservesthefreedomofthecitizens
becauseitactsasaguaranteeagainst
arbitraryincriminations. 200
 legepraevia
Acriminalconvictioncanonlyhappenifthe
criminalactivityisdescribedassuchina
statuteenactedbefore thetimeofthe
conduct.
Thisisaprohibitionofcriminalstatuteswith
retrospectiveeffect(incriminationsdoneafter
thefacts)
Retrospectiveeffectofcriminalstatutesis
allowedonlyifitisbeneficialforthe
interestedparty.
201
 legescripta

theremustbeawritten law,astatute
enactedbytheLegislativeAssembly
Onlystatutesareadmittedassourcesof
criminallaw.
Courtscannotcreatenewcrimes.

202
 legecerta

Thewordingofcriminalstatutesshould
notbevague.
Criminallegislationmustbe
determined initsprescriptive
formulationandnormativecontent.
Theapplicationofcriminallawmustbe
predictable andcontrollable.

203
 legestricta

Thisisaprohibitionofanalogy.
Acriminalconvictionmustresult
directlyandimmediatelyfromthelaw,
notfromareasoningcreatedbythe
judge.

204
 CriminalProcedureLaw
Theadministrationofcriminaljusticeis
carriedoutthroughaspecialprocedure.
Thebasicprincipleisthatnopersonwhois
accusedofhavingcommittedacrimecanbe
consideredguiltywithoutbeinggivenagood
chancetodefendhimself afairtrial.
C.P.LawiscontainedintheCriminal
ProcedureCode1996.
Everycaseisseenbytwojudgesatleast,
separatefromthePublicMinistry
205
(prosecution)
 PublicFinancelaw
Thisbranchdealswiththefinancialactivity
oftheTerritoryandotherpublicentities.
ThemostlawistheannualGeneralBudget
oftheSAR.
Ontheincomesideofthebudget,TaxLawis
important.
Ataxisacompulsorychargeleviedbythe
SAR.Thetaxationsystemcomprisesseveral
taxesonincome,property,goodsand
services. 206
 TaxationinMacau
Macauisalowtaxationterritory.
Theleveloftaxationissignificantlylower
thanothercountriesorterritories.
TheBasicLawmentionsthatalowlevelof
taxationistobekeptinthefuture.
Macau,however,doesnotrelyontaxesfor
mostofitsincome,butonthegaming
franchiseoperated,underaconcession
agreement,since1962,bySTDM,andbyalso
otheroperatorssince2002.Apartofthe
profitsgoestotheTerritory. 207
 TradeinMacau
Macauisafreeport.
Importdutiesareonlyleviedonliquor,
tobacco,oil,fuelandmotorvehicles
Exportsarealsofree;however,becauseof
internationalagreements,someareas,such
astextileexportsmayberegulated:there
maybemaximumlimitsthatcannotbe
exceeded.

208
 Privatelaw
Private law regulates the status of persons
and common private and business activities
and legal effects. This field is very wide and
some sub-divisions are used.
The sub-divisions are:
common private law or civil law
special private law branches:
commercial law
labor law
209
 Civil law branches
The 1999 Macau Civil Code, in force in
Macau, uses the German classification of civil
law branches (BGB, 1896), as follows:
I. General part
II. Obligations law
III. Property law
IV. Family law
V. Succession law
210
 BackgroundoftheCivilCode

The Civil Code in force in Macau, approved

in 1999, replaced the previous Portuguese
Civil Code of 1966.
The 1966 Code was extensively amended in
1977, to reflect the approval of the 1976
Portuguese Constitution. The amendments
were mainly in the law of persons, family and
succession.
211
 Organizationandmaindivisions
The Civil Code in force in Macau uses the
German classification of civil law branches
(BGB, 1896), as follows:
I. General part
II. Obligations law
III. Property law
IV. Family law
V. Succession law
212
Thelegalrelationandthegeneralpart

Thegeneralpartisstructuredaccordingtothe
conceptoflegalrelation
Thisisageneralconcept,createdbythe
GermanPandectismintheXIXcentury,which
isintendedtoprovideaframeworkforthe
analysisofanylegalproblems

213
 Thelegalrelationandthegeneralpart

Itsaysthatinanylegallyrelevantsocialrelation
(legalrelation)therearefourelements:
a)person(s): thereisnolawwithoutpersons,
withouthumaninvolvement
b)object: whatthelegalrelationisabout
c)fact: eventsthat,accordingtothelaw,leadto
andaffectlegalrelations
d)guarantee: possibilitytodemandlegal
protectiontolegalpositions

214
 BookI,TitleII Legalrelations
SubtitleI Persons
ChapterI Individuals
ChapterII Collectivepersons
ChapterIIIAssociationswithoutlegalpersonalityand
specialcommissions
SubtitleII Realthings
SubtitleIII Legalfacts
ChapterI Legalbusiness
ChapterII Legalacts
ChapterIII Theinfluenceoftimeonlegalrelations
SubtitleIV Exerciseandprotectionofrights
ChapterI Generalrules
ChapterII Evidence 215
 GeneralPart

General Part: deals namely with general rules

regarding the whole legal system (sources of law,
interpretation of statutes, entry into force and
revocation), conflict of laws, the law of persons
and general rules on legal facts and legal
relations

216
 ObligationLaw

The second part is based on the concept of

obligation, which is a duty to undertake a
certain course of action. Matters covered
include: sources of obligations; types of
obligations; transfer of obligations;
guarantees; discharge; redemption; special
contracts.

217
 Contract law is in the general part and the
law of obligations: contracts are legal
relations which generate obligations
The Civil Code basically spreads the regulation of
contracts among Book I (the general part) and
Book II (the law of obligations)
Book I focuses on the concept of legal relation
Book II focuses on the concept of obligation, which
is a legal position generated namely by contracts
(given that contracts usually create various obligations
for both parties)
218
Contract law is in the general part and the law
of obligations: contracts are legal relations
which generate obligations

The regulation of contracts is therefore found

in three sets of norms:
those that regulate the wider concept of legal
transaction
those that regulate the concept of obligation
those that directly take contracts in general or
specific contracts as their object of regulation

219
 PropertyLaw

The third part deals with ownership and other

similar rights over tangible goods, including
usufruct
The regulation of guarantees which are property
rights, such as the mortgage, is found in Book II
and not in Book III

220
 The law of obligations and contracts

This part is not called contract law because

it covers other issues that are unrelated to
contracts but which are sources of obligations
as well, such as civil liability, unjust
enrichment and negotiorum gestio

221
 Family and Succession Law
The fourth part, family law, governs legal positions
arising from marriage, relations between parents and
children, affinity and adoption.
The fifth part governs the disposal of a deceased
person's rights and obligations. Two main sources
govern the sharing of the assets: the testament and
the law. However, there is a portion of assets that
can not be taken away from the family. If there is no
will, the rules stated in the CC will apply.

222
 Commerciallaw
Dealswithmanydifferentissues,
including:
companies
commercialcontracts(suchasleasing
orfranchising)
negotiableinstruments(suchas
chequesandbillsofexchange)
bankingandinsurance
intellectualpropertylaw
223
 Labourlaw
Rulestherelationsbetweenemployersand
employeesarisingfromthelabourcontract.
Mainideaistheintentiontogivespecial
protectiontotheworkers.Experiencehas
taughtthattheyareinapositionthatneeds
specialprotectionandregulation,toprevent
abuses
Startedtodevelopinthe19thcenturyasa
consequenceoftheIndustrialRevolution.
Beforethe19thcenturyitwaspartofcivillaw
224
 InternationalPrivateLaw
solvesconflictsoflaws:theproblemof
decidingwhichlawistobeappliedto
privatelegalrelationswithinternational
connections
IPLpointstooneofthelegalsystemsin
contactwiththecase
IPLdoesnotprovidethesolution.Itjust
answersthequestionofdecidingwhich
legalsystemwillprovideasolution
225
 Mixedareasoflaw
Inreality,mostactivitiesarecoveredby
variousbranchesoflaw
Thatisthetypicalcaseofregulated
businessactivities,whicharetheobjectof
specialrulesofpubliclawandprivatelaw:
Banking
Insurance
Gaming
Hotelindustry
226
 Whatisaright?
Arightisaspecificlegalpermissiontobenefitfromacertain
good.Itisaconcretepermissiontoact,givenbythelegal
system.
Thisnotionofrightrestsonthebasicliberalideaofliberty,
whichisthebasisofprivatelaw:thelegalrightcorresponds
toanareaofconcretepersonalfreedom.Itisalegalsituation
ofpersonaladvantage,givenbythelaw.
However,thisfreedomisnotunlimited.Namely,theideasof
cooperation,responsibilityandimplieddutiesarerelevant.
Thelegalrightisnotanabsolutevalue.Therearegeneral
limitstorights.Nevertheless,thestartingpointistheliberty
orpermission.Thisenlargesthepermissionanddemandsthe
cleardefinitionofthelimits.

227
 Obligation
Theobligationisthelegalpositionroughlyoppositetothe
right.TheCivilCodedefinesitinarticle397:Obligationisthe
legalconnectionbyvirtueofwhichapersonisboundbeforeotherto
executeaperformance.
Anobligationisapassivelegalpositioninwhichapersonhas
thedutytoundertakeacertainconductorperformance.The
typesofobligationsare:
dare:togiveordeliversomethingtootherperson;
facere:toexecuteacertainactivity,whichcanbe:
facere (strictsense):todosomething;
nonfacere:nottodosomething;
pati:allowsomeonetodosomething.

228
 Legaleffects
a)Creation appearanceofalegalpositioninthe
legalsystem,whereitdidnotexistbefore.
b)Transfer anexistinglegalpositionpassesfrom
oneholdertoother.Itispossibletodistinguish
betweentransfer (thepassingofalegalpositionfrom
apersontoanother,orintervivos)andsuccession (the
substitutionofapersonbyanotherasholderofthe
positionbecauseofthedeathoftheoriginalholder,
ormortiscausa).
c)Modification thecontentofalegalpositionis
changed.
d)Extinction thelegalpositiondisappears. 229
 Procedurelawbranches
Thesedogivethesolutiontothecases,butthewayto
obtainasolution.Themainbranchesare:
civilprocedure(themostimportantbecauseitis
thesourceofthemainconcepts)
criminalprocedure;
labourprocedure;
administrativeprocedure.
Aconstitutionalprocedureisthechallengeofthe
constitutionalityofnorms.
thereisnocommercialprocedurelaw:civil
procedureappliestocivilandcommercialcases.
230
MACAU BUSINESS LAW
THELAWOF
Jorge AF Godinho
PERSONS
Associate Professor
University of Macau
jgodinho@umac.mo

[last updated 1 Nov 2010]

231
 Materials:

MacauCivilCode

JorgeGodinho,MacauBusinessLawand
LegalSystem,LexisNexis,HongKong,
2007,pages4248(2228)

232
 Keyconcepts:
Legal personality: who is a person, for the
law?
Legal capacity: what is the range of a
persons rights and obligations?
Business capacity: how can persons exercise
their rights and obligations?

233
 LegalPersonality

legalpersonalityis
thepossibilityof
beingholderof
rightsand
obligations
Apersonisacentre
ofdecision and
responsibility
234
 Legalcapacity
Is a measure of the rights and obligations
that a person at law can have
Is a quantitative concept: gives the range of
rights and obligations that a person may
have

235
 Businesscapacity
Isthepossibilityofexercising the
rightsandobligations
Thepersonwhohasfullbusiness
capacitydoesnotneedtobeassisted by
alegalrepresentativenordoesneed
anypermission fromotherperson

236
Legalpersonalityandcapacity:individuals

Allhumanpersons(individuals)
havelegalpersonalityfrombirthto
death
gainedimmediatelyuponbirth
definitionofdeathprovidedby
science

237
 Article 63
(Beginning of personality)
1. Personality is acquired at the moment of complete
birth with life.

Article 65
(End of personality)
2. Personality ends with death.

238
Legalpersonalityandcapacity:individuals

butindividualsmaynothavefull legal
capacityorbusinesscapacity,fora
numberofreasons:
Nationality
Residence
Age
Interdictionandinability

239
 Article 64
(Legal capacity)
Except if there is a legal provision to the contrary,
persons can be subject of any legal relations: their legal
capacity consists in this.

240
Nationality

241
 Nationality

Somerightsarereservedtonationals,
andarenotgrantedtoforeigners
Restrictionstolegalcapacityonthe
groundsofnationalityrelatemostlyto
publiclaw
nationalitydoesnotgeneraterestrictions
inthefieldofprivatelaw

242
Residence

243
 Residence

ImportantdistinctioninMacaubetween
residentsandnonresidents;theconceptof
residentperformsmostofthefunctionsthat
areusuallyassociatedtotheconceptofcitizen
TheBasicLaw(art.24)distinguishesbetween
permanentresidentsandotherresidents

244
 Residence
Inthefieldofprivatelaw,theruleisthatnon
residentsaretreatedinthesamemannerasresidents
Inprinciple,thestatusofnonresidentdoesnotcause
anylackoflegalcapacity
TheCommercialCodestatesthatAcommercial
entrepreneurcanbeanyindividual,residentor
nonresident,orcollectiveperson,witharegistered
officeintheTerritoryornot,endowedwithcivil
capacity,withoutprejudicetospecialprovisions
(art.5CCom).
245
 Age;minors

Minor:apersonwhohasnotcompleted18
years
Aminorcanachievefullbusinesscapacity
beforetheageof18throughmarriage,which
canonlytakeplaceaftercompleting16yearsof
age

246
 Article 111
(Minors)
A minor is whoever has not completed 18 years of age.

Article 112
(Incapacity of minors)
Except if there is a legal provision to the contrary, minors lack
capacity to the exercise of rights.

Article 113
(Overcoming incapacity of minors)
1. The incapacity of minors is overcome by parental power and,
subsidiarily, by guardianship, as provided in the respective places.
247
 Minors
Consequence:generallackofbusinesscapacity:
Minors,asarule,cannotexerciseanyrightsor
obligationsbythemselves
Minorshavetobeassistedbyotherperson
orpersons,therepresentativesoftheminor
(asarule,theparents)

248
 Minors
Consequenceofthelackofbusinesscapacity:
anylegalactpracticed(bytheminoralone)
isvoidable.
However,incertaincasesthelegalactsof
minorsarefullyvalid.

249
 Article 114
(Acts of minors voidable)
1. Without prejudice to subparagraph 2 of article
280, the legal transactions concluded by a minor may
be voided:
[the provision then clarifies by whom and until
when]

250
 Article 116
(Exceptions to incapacity of minors)
1. Besides others mentioned in the law, the following are exceptionally
valid:
a) Acts of administration or transfer of goods that a person at least 16
years of age has acquired by his work;
b) Legal transactions normal to the daily life of a minor, which he can grasp
by his natural capacity, and only involve expenses, or transfers of assets,
of small amounts;
c) Legal transactions relating to the job, art or profession that a minor has
been authorized to exercise by his legal representatives, or the acts
practiced in the exercise of such job, art or profession.
2. Only assets that a minor can freely transfer can be executed in
connection with acts relating to the job, art or profession of the
minor, and for acts practiced in the exercise of such job, art or
profession.
251
 Interdictionandinability
Interdiction
Mayapplytopersonswho,byreasonofmental
illness,deafmuteness,orblindness,arenotableto
takecareofthemselves
Appliestopersonswhohavereachedmajority
Mustbedeclaredincourt
Hasthesamelegaleffectshasminority
Inability
Referstocasesnotsoseriousastojustify
interdiction
252
 Bankruptcy

Doesnotgeneratealackoflegal
capacity
Seearts.1095(1)and1097(1)CPC

253
 Commercialcapacityand
legitimacy

generalrulesapplytothefieldof
commerciallaw
TheCommercialCodeclarifiesthatpersons
wholackbusinesscapacitycannotexercisea
commercialenterprise(art.6CCom),and
thereforeneedtoberepresented;no
exceptions.

254
Legitimacyofamarriedcommercial
entrepreneur
Art.11CComstatesthatamarriedcommercial
entrepreneurdoesnotrequiretheassentofthespouse to:
a)inthenormalcourseofhisactivity,transferorcreate
chargesovergoodsthatcomposethecommercial
enterprise;
b)transferorcreatechargesovergoodswhich,
irrespectiveoftheirnature,aretheresultoftheactivity
ofthecommercialenterprise.
Therefore,commercialentrepreneurswhonormallysell
realestateinthecourseoftheirbusiness donotrequirethe
assentfromthespousetoeffectsuchsales.

255
Legalpersonalityofnonindividuals
juristicormoralpersons:associations;
foundations;companies
isacreationofthelaw(atechnicallegal
mechanism)
resultsautomaticallyfromthelawandnot
fromacasebycasedecision.
Generally,anadministrativepermissionis
notrequired;thisisinaccordancewiththe
freedomofassociationguaranteedbythe
BasicLaw
256
 Typesoflegalormoralpersons
associations:basedonagroupofpersons
whojointlypursuenonprofitactivities
(art.154CC)
foundations:basedoncertainassetsthat
aretousedinnonprofitactivities
companies:basedonagroupofpersons
whojointlyconductacertaineconomic
activityforprofit(art.184CC)
257
 Typesofcompanies

Privatecompanies
Publiccompanies
Generalpartnerships
Limitedpartnerships

258
 Agencyandrepresentation
Where aperson acts on behalf ofanother
Principal/agent
thelegaleffectsoftheactspracticedby
theagentonbehalfoftheprincipal,
namelycontractsagreedwiththird
parties,takeplaceinthelegalsphereof
theprincipalandnotoftheagent
Transactionoftheagentwithhimselfare
voidable(art.254CC)
259
MACAU BUSINESS LAW
THELAWOF
Jorge AF Godinho
OBLIGATIONS
Assistant Professor Part1
University of Macau [lastupdated1Nov2010]
jgodinho@umac.mo

260
 Materials:
MacauCivilCode
Englishtranslationavailableat
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=71317

JorgeGodinho,MacauBusinessLawand
LegalSystem,LexisNexis,HongKong,2007
pages 49-59 (29-36)
pages 63-64 (39)
pages 64-66 (40-42)

261
Whatdoyouseehere?

262
 Youcansee,forexample:
Concessioncontractfortheland,andthepayment
ofpremiums
Constructioncontractwithadeveloper,plus
subcontractors,suppliers,decorators
Registrationofthebuilding
Salesandrentalsofshops,officesandcarparks
Mortgagesofunitsassecurityforloans
Servicescontracts:water,phone,internet,
electricity,cabletv,security,cleaning,maintenance
Managementofthecondominium
And,ofcourse,disputesbetweenneighboursdue
tonoise,smoke,smells,waterinfiltrations,etc..
263
 Businesslawinaction
Supposeyouwanttosetupafilm
productioncompany
Youneedascreenplay,adirector,actors,editors
andotherproducers
Youneedmusicforthefilm
YouwanttofilmscenesinMacau,mainland
ChinaandHongKong
YouwanttomarketthefilminMacau,mainland
China,HongKong,andabroad
Whatlegalmattersneedtobe
considered?
264
 Somelegalmatterstobesolved:
Formationofalimitedliabilitycompany
Financingofthemovie(e.g.,loans)
Contractswithbanks,providingguaranteesandterms
forrepaymentoftheloan
Employmentcontracts
Actors,director,editorsandproducers
(contractsdefinesalarypaid,duties,durationof
work)
Contractsforthemusiccopyright
Whohasthecopyright,howmuchwillbepaid
Insuranceagainstriskofdamage
Accidentsinvolvingactors,thirdparties
Taxissues 265
CivilCodestructure:BooksIIandIII

BookII:Thelawofobligations
Regulatesobligations,orcreditrights
BookIII:Propertylaw
Regulatespropertyrights

266
 Conceptofobligation(article391):
Obligation is a legal relation by which a person is
bound to execute a performance towards other person.
Legal relation between two parties:
Creditor
Debtor

267
 Obligationsasrelations
betweentwoparties

Performance
Debtor Creditor

Obligation to Right to demand the

execute a execution of the
performance performance
268
Contractsgenerateobligations
betweentwoormoreparties

Party A Party B

269
Purchaseandsalecontract

Obligation to pay the price

Buyer Seller
Transfer of property of good sold

Obligation to deliver the good sold

270
Propertyrightsareselfstandingrelations
betweenapersonandanobject

Holder of
the right
Property right
Object

271
 Relativeandabsolute
legalpositions
Broad distinction:
A legal position is absolute when exists
independently of any other (ex: a property right
exists independently of any other legal position);
it is relative when it exists if face of other legal
position (ex: it makes sense to speak of a
creditor only if there is a debtor).

272
 Contractlawaspartofthegeneralpart
andofthelawofobligations

Contract law is included in the law of obligations:

contracts generate obligations
Other legal facts also generate obligations: civil
liability, unjust enrichment, etc. All these are regulated
in Book II, as sources of obligations
However, contracts are also under the general
regulation of Book I for all legal relations:
contracts are legal relations
273
 Typesofobligations

dare: obligation to give or deliver something to

other person;
facere: obligation to execute a certain activity,
which can be:
- facere (strict sense): obligation to do
something;
- non facere: obligation not to do something;
- pati: obligation to allow someone to do
something
274
 StructureofBookII
GeneralPart(arts.391to864)
generalrules,sources,types,transfer,guaranteesandextinctionof
obligations
SpecialPart:specificrulesofanumberofcontracts:
purchaseandsale(865ff.)
Donation(934ff.)
Lease(969ff)
gratuitousleaseofgoods(1057ff)
Loan(1070ff.)
Employment/labor(1079) regulatedoutsidetheCode,inaspecial
law
renderingofservices(1080)
Mandate(1083ff.)
depositofgoods(1111ff.)
Construction/buildingcontract(1133ff.)
Annuities
Gamingandbettingcontracts(1171ff.)
275
 ContractsregulatedintheCommercialCode
contractforsaleorreturn(arts.578580CCom);
supplycontract(arts.581592CCom);
commissioncontract(arts.593615CCom);
forwardingcontract(arts.616621CCom);
agencycontract(arts.622656CCom);
commercialconcessioncontract(arts.657678CCom)
franchisingcontract(arts.679707CCom);
brokeragecontract(arts.708719CCom);
advertisingcontracts,including:advertisingcontract(arts.720734CCom);advertising
diffusioncontract(arts.735740CCom);advertisingcreationcontract(arts.741746
CCom);andadvertisingsponsorshipcontract(arts.747748CCom);
carriagecontract(arts.749778CCom);
depositingeneralwarehouses(arts.779797CCom);
lodgingcontract(arts.798819CCom);
currentaccountcontract(arts.820830CCom);
lendingofsecurities(arts.831839CCom);
bankingcontracts,including:bankdeposit(arts.840843CCom),therentalofsafe
depositboxes(arts.844849CCom),theopeningofbankcredit(arts.850853CCom),the
bankadvance(arts.854859CCom),bankingtransactionsincurrentaccount(arts.860865
CCom),thebankdiscount(arts.866868CCom),factoring(arts.869888CCom)and
financialleasing(arts.889910CCom);
guaranteecontracts,including:commercialpledge(arts.911916CCom);fiduciarysale
inguarantee(arts.917927CCom);floatingcharge(arts.928941CCom);andindependent
guarantee(arts.942961CCom);and 276
insurance(arts.9621063CCom).
Contractsassourcesofobligations

Contractlaw

277
 Freedomofcontract

Private law is liberal: parties are allowed to freely

negotiate their positions
This is based on the assumption that the parties are
in a position of equality, and will have more or less
the same bargaining power

278
 Freedomofcontract
The principle of freedom of contract has two faces:
a) freedom to conclude contracts
the possibility to decide whether to conclude or not a
contract (to say "yes" or "no").
b) freedom to decide the contents of contracts
freedom to negotiate or stipulate the terms of the
contract
It is possible to include all the clauses that the parties
deem necessary, and even to combine contracts or create
new arrangements, within the general limits of legality
279
 Thebargainingpowerisnot
alwaysthesame
There are areas in which there is no equality
between the parties, and the law gives special
protection to the party in a weak position:
labour law
Standard contract terms offered to
consumers
Lease of immovables for residential
purpose
280
 Defaultrulesvsimperativerules
Given the principle of freedom of contract, most
of the regulation contained in the Civil Code
consists of default rules
default rules are rules that shall apply if the parties have
not stipulated otherwise
As a general rule, parties may deviate from the
default rules stated in the law
In practical terms, the drafting may be simplified:
parties can rely on the default rules and the text of
the contract does not need to repeat the law 281
 Defaultrulesvsimperativerules
However, in some cases the regulation is
imperative
It is a matter of interpretation to decide if a rule
is a default rule or an imperative rule
When the rules are imperative, any provisions
that breach the law shall be void
Therefore, contracts should be drafted carefully and
reviewed for conformity with the law

282
 Contractclauses
The parties are free to state the contents of
contracts: the clauses
Certain clauses are well known:
condition
penalty clause
exemption clauses
clauses limiting the object of the contract

283
 Condition(art.263ff.CC)
Clause by which the start or end of the effects of
the contract depend on the occurrence of a
future and uncertain event
If the event is certain (it will happen for sure)
the clause is called a term
A condition may refer to:
the start of the production of legal effects (suspensive
condition)
the end of the effects (resolutory condition)
284
 Privityofcontracts
Valid contracts are like law between the parties
pacta sunt servanda
Contracts normally have no effect on third parties
privity of contracts: a person can never have
obligations arising from a contract to which he or
she was not a party
However, a contract can create rights to third
parties (articles 437 ff)
Example: civil liability insurance
285
civilliabilityinsurance
contract
Obligation to pay the premium
Injured
third party

Insurance Compensation
Insured
company

Insurance coverage of the risk insured

286
 Declarationofwill
The Civil Code adopts the concept of
declaration as the basis of regulation of certain
issues:
Types of declarations (209-210)
Form (211-215)
Conclusion of contracts (216-227)
Interpretation (228-231)
Defects and absence of intention (232-250)
Representation (251)
Condition and term (263-272)
287
 Typesofdeclarations(209210)

Businessdeclarationscanbe:
Express
Implied
Seeart.209CC

288
 Article 209
(Express declaration and implied declaration)
1. A business declaration can be express or
implied: it is express when made by words, in writing,
or by any other direct means of expressing intention; it
is implied when it is deducted from facts that reveal it
with all probability.
2. The formal nature of a declaration does not
prevent it from it being uttered in an implied manner,
provided that the form for the facts from which it is
deducted has been observed.
289
 Silence not relevant, as a rule

Silence is not relevant, unless there is a

previous agreement that silence will be
regarded as consent (if you do not hear
from me by May 17, you may assume)

290
 Article 210
(Silence as a means of declaration)
Silence is only valid as a business declaration if
such value is given to it by law, usage or agreement.

291
 On October 10, Chan offered by letter to
buy Lees bicycle for MOP$380. The letter
also stated: If I do not hear from you by October
17, I shall regard that you have accepted my offer.
Lee did not reply.
Chan now claims that a contract has been
agreed and demands its execution.
Quid juris?

292
 Formofcontracts
The form of a contract is the way used by the
parties in expressing their declarations
The principle is freedom of form; as a rule:
no special form is required (art. 211 CC), and
oral contracts are valid;
a contract is concluded when offer and
acceptance take effect, irrespective of the form
used.
If a required form is not respected, the contract is
void (art. 212 CC). 293
 Article 211
(Freedom of form)
The validity of a business declaration does not
depend upon the observance of a special form, except
where the law requires it.

Article 212
(Non-observance of legal form)
A business declaration which lacks the legally
required form shall be void, unless a different sanction
is especially prescribed by law.
294
 Specialformsmayberequired
The law may require a special form, for various
reasons:
publicity: some contracts should be accessible to
the public (that is the case of real estate);
reflection: to make the parties think about the
significance and the importance of the contract
to be reached;
evidence: a special form facilitates the
demonstration of the existence of the contract.
295
 Typesofspecialforms
a) private written documents;
b) private documents, with the signature recognized
by a notary;
c) private documents confirmed by the parties before
a notary;
d) public deed, executed in the books of a notary
Examples of contracts that must respect this form:
purchase and sale of real property
the creation of mortgages
296
 Legalstatusofelectronicmessages
Regulated by Law no. 5/2005, of August 8.
This law has set requirements for electronic
messages to be legally recognized in the same
manner as written documents
The overall conclusion that may be drawn from
this law is that only e-mail sent with digital
certification (qualified electronic signature) will
satisfy its requirements
Other messages, such as standard non-certified
e-mail, will be analized by the court on a case-by-
case basis
297
Registrationandpublicregistries
Certain contracts not only have to be
concluded under a special form but also have
to be registered
There are a number of public registers:
civil register
commercial register
land register
motor vehicles register
airplanes register
298
CONCLUSION
OFCONTRACTS

299
Conclusion of contracts: a contract is
formed by the acceptance of an offer

Offer

Party A Party B

Acceptance

300
 Whenhasacontractbeen
concluded?
In face-to-face transactions, it is most of the times
quite clear if and when a contract has been agreed
Although misunderstandings may occur
However, if the parties are not communicating
directly (e.g., by letter or fax or e-mail) and there is
time between their declarations, this creates the
problem of determining if and when a contract has
been concluded

301
 Whatisanoffer?
Is a proposal made by one party (offeror) to the other
(acceptor or oferee) so that, if the other party simply
says yes, creates a contract.
3 requirements of the offer:
complete it should cover the essential elements of
the contract under discussion, and may also include
any other issues raised by the parties; if it is not
complete, it is just a preliminary contact, or an
invitation to negotiate
firm intention to conclude the contract
it should have the form legally required, if any
302
 Validityofoffer(art.220)
An offer cannot stay open indefinitely.
- if the offer is valid only for a certain period (e.g., 10
days), it will expire or lapse after that period;
- if the offeror demands an immediate answer, the
offer will remain in force for the time needed to,
under normal circumstances, offer and acceptance to
be communicated to the other party;
- if nothing is said, then the offer will remain in force
for the time needed for the offer and acceptance to
reach their destinations, plus five days.
- if the offer is made orally, face-to-face, it expires if
it is not accepted immediately 303
 Article 220
(Duration of contractual offer)
1. A contract offer binds the offeror in the following manner:
a) If a time limit for acceptance has been set by the offeror or agreed by the
parties, the offer shall remain open until the expiry of such time limit;
b) If no time limit was set, but the offeror has requested an immediate answer,
the offer shall remain open until, in normal conditions, ther offer and the
acceptance reach their destinations;
c) If no time limit was set and the offer has been made orally to a person who
is present, the offer lapses if the acceptance is not done at once;
d) If no time limit was set and the offer has been made to a person who is not
present, or has been made in writing to a person who is present, the offer
shall remain open until five days subsequent to the time limit arising from
the provision of subparagraph b).
2. The provisions of the previous paragraph do not prejudice the right of
revocation of the offer and the terms in which the revocation is allowed by article
222.
3. Contracts concluded by telephone, or by other similar means of direct
communication at a distance, are considered as made between persons who are
present, if the parties or their representatives communicate personally. 304
 Extinction of offer
The offer can be extinguished for four causes:
rejection [No]; or counterproposal: any
acceptance with amendments, restrictions or
other limitations is considered to be a rejection
acceptance [Yes]; during the time in which the
offer is open, an acceptance will conclude the
contract
Lapse [no answer while it remains open]
Revocation of the offer [offer cancelled]
305
 Revocation of offer

An offer can be revoked

The revocation does not have to follow any
special form
for the revocation of the offer to be effective it
must be received or known by the offeree
before or at the same time of the offer. After
this moment, it will not produce effect.

306
 Acceptance

declaration by which the oferee expresses total

agreement with the offer
There has to be complete agreement
It must done while the offer is open
If it is late, there is no contract

307
 Acceptance
An acceptance that concludes the contract must:
be a total and firm agreement
there is no acceptance if there are doubts,
conditions, additions or any other
modifications
Any yes, but or yes, if.. is not an acceptance

have the form required for the contract, if any

It can be revoked if the revocation is received by the
offeror before or at the same time of the offer 308
 Conclusion of contract

The contract is only concluded when there is

agreement on all issues raised for discussion and
agreement: if the parties are still in negotiations
on some points, the contract as a whole is not
yet concluded
Art. 224(1)

But this may have an exception: see art. 224(2)

CC
309
 Article 224
(Scope of agreement)
1. The contract is not concluded while the parties
have not yet agreed on all of the clauses on which any of
the parties found an agreement to be necessary.
2. If the parties have left pending the negotiation of
specific secondary points, but have revealed, by means of
the start of its execution or by any other form, a clear
intention to be bound by the contract as was negotiated,
it shall be considered as concluded; the rules on the
integration of contracts shall apply to the missing points.
310
 Conclusionofcontract
An offer may be rejected
An acceptance, to be considered as such, must be a
total agreement.
Any acceptance with amendments, restrictions or
other limitations is a counterproposal, and considered
as a rejection (art. 225 CC). It may be considered as a
new offer: art. 225. A counterproposal, when it is a
new offer, must be accepted by the other party for the
contract to be concluded

311
 Article 225
(Acceptance with modifications)
An acceptance with additions, limitations or other
modifications shall amount to the rejection of the offer;
however, if the amendment is sufficiently precise, it
shall be deemed a new offer, provided that another
meaning does not arise from the declaration.

312
 Conclusion of the contract

The contract is concluded at the time in which

the acceptance takes effect.
This is important because the relevant legislation
will be determined according to this moment
The contract is concluded at the place where
acceptance is received.

313
 Pre-contractual liability
(culpa in contrahendo)
The law requires the parties to act in good faith when
negotiating contracts
This is a legal basis for a claim for compensation of damage
caused
Applies to cases where a contract has not been agreed, but
the pre-contractual conduct of a person caused damage to
another
A person may be held liable for damage caused in breach of
good faith
Liability may arise in a number of circumstances, such as
when negotiations are interrupted abruptly thereby causing
damage to the counterparty 314
 Article 219
(Fault in the conclusion of contracts)
1. Whoever negotiates with another for the conclusion
of a contract shall proceed in accordance with the rules of
good faith, both in the preliminaries as well as in its
formation, under penalty of being liable for the damage
caused with fault to the other party.
2. Liability shall be barred in accordance with article
491.

315
 Pre-contractual liability
(culpa in contrahendo)
Therefore, just because a contract was not
agreed it does not mean that there will never
be any liability. Breaking negotiations
abruptly may cause liability: it is necessary to
operate in a honest and loyal way, with good
faith
It will be for the courts to decide whether the
conduct of a party is or not against good faith
316
 NEXTTOPIC:

INVALID
CONTRACTS

317
 Invalidcontracts

A contract which does not produce full

legal effects may be:
Void
Voidable
Unenforceable

318
 Voidcontracts
neither party is bound because no genuine
agreement has been reached
this state of affairs can not be corrected
anyone with an interest on the matter can, at
anytime (without time restrictions), apply to the
court to declare the contract void (art. 279)
A court may also ex officio declare such contracts
void

319
 Voidablecontracts
the contract is binding unless one party chooses to
void it
the voidability disappears after one year (as a rule).
If until then the contract was not voided, it becomes
fully valid.
the contract can be validated through confirmation
by the person who has the right to void the contract.
only the person for whose protection the law has
stated the voidability can take action against a
voidable contract
320
 Effectsofnullity
If the contract is declared void or voided, this will
have retrospective effect, so everything that was
paid or delivered must be returned by the parties.
Any transfer of property is considered without
effect.
However, in the case of immovables or movables
subject to registration, this cannot affect the rights
of good faith third parties who have registered their
rights (art 284).
321
 Objectofthecontract

A contract is void if its object is:

Physically impossible
Legally impossible
Against the law
Impossible to determine
A contract is also void if it is contrary to
public order or good mores

322
 Article 273
(Requirements of object of transaction)
1. A legal transaction whose object is physically or legally
impossible, against the law, or cannot be determined, shall be
void.
2. A legal transaction against public order, or that offends
public mores, shall be void.

Article 287
(Transactions concluded against the law)
Legal transactions concluded against a legal provision of
an imperative nature shall be void, unless other solution is
provided for by the law.

323
 Usury
A contract is voidable if one of the parties
intentionally abused a situation of need, lack of
experience, relation of dependence or mental
weakness of the other party in order to obtain
benefits which are clearly excessive or unjustified
Art. 275 CC
There are specific rules on charging interest [to be
studied later]

324
 Article 275
(Usury transactions)
1. A legal transaction shall be voidable, as result of usury,
when someone, knowingly exploiting a situation of need,
ineptitude, lack of experience, swiftness, relation of
dependence, mental state or weakness of character of another
person, obtains from the latter, for himself or for a third
party, the promise or the grant of benefits which, in accordance
with the circumstances of the case, are most clearly excessive or
unjustified.
2. The special rules of articles 553 and 1073 are not
affected.
325
 NEXT SECTION

Promise to contract

326
 Promisetocontract
contractbymeansofwhichtheparties
bindthemselvestoconcludeacertain
contract(thepromisedcontract)inthe
future.
Themostfrequentandimportantisthe
promissorycontractofpurchaseandsale
Theeffectofapromisetocontractisthat
thepartiesundertaketheobligationto
concludethepromisedcontract
327
 Breachofpromisetocontract
Twopossibleremedies:
Lossofdownpaymentorpaymentbackin
double;or
Specificperformance:judicialproceeding
wherebythecourttakestheplaceofthe
missingparty
Therighttoresorttospecific
performancecanneverbeexcluded,in
thecaseofimmovables,ifthe
immovablehasbeendeliveredtothe
promissorybuyer
328
 Promissorycontractswithproperty
laweffect(ergaomnes)
Generallyspeaking,promissory
contractsdonothavepropertylaw
effect
Cannotbeinvokedagainstthird
parties
Butthiseffectcanbegrantedbymeans
ofregistrationintheappropriate
register(art.407)
Canbeinvokedagainstthirdparties 329
SOURCESOFOBLIGATIONS:

CIVILLIABILITY

330
 Civilliability
Civilliabilityisthesourceofthe
obligationtocompensatedamagecaused.
Asarule,whenadamageoccurs,itis
sufferedbytheholderoftheaffected
right.
However,incertaincasesthelawwants
thedamagetobesufferedbyother
person,whowillhavetheobligationto
compensatethedamagescaused 331
 Areasofcivilliability

Damagesresultingfromtheviolationof
absoluterights:tortsordelictlaw
damagesresultingfromtheviolationof
relativerights:contractualliability

332
 Civilliabilityandcriminalliability
Itispossiblethataconductthatcausesdamages
isalsoacrime(ex:criminaloffenceof
intentionaldamage).Mostcrimescangenerates
damagestopersonsorproperty.
Itispossiblethataconductcausesdamagesbut
isnotacrime.Criminallawdoesnotcoverall
possibleillegalintentionalevents(ex:non
paymentofdebts)
Finally,itispossiblethatacrimedoesnotcause
anydamagestootherpersons(ex:attempted
crimes;crimesagainsttheStateortheeconomy).
333
 Requirementsofcivilliability
a) action there must be a human action or
an omission considered relevant;
b) damage the victim must have suffered
damages;
c) causation there must be a connection
between the action and the damage;
d) unlawfulness the action must be
unlawful;
e) fault the agent could and should have
334
acted in another way.
 Requirements of civil liability

Action Causation Damage

Must be:

a) Unlawful (illegal, unjustified)

b) Committed with fault (intentionally or
with negligence)
335
 Actionoromission

Anactionis,ahumanpositiveconduct,
controlledorcontrollablebythewill.
Omissionsarerelevantonlywhenthe
personhadthedutytoact.

336
 Unlawfulness
resultsfrom:
theviolationofabsoluterightsofprivate
individuals,whichmustberespectedby
everyone(suchaslife,physicalintegrity,
health,libertyorownership);orfrom
theviolationofastatutethatisintended
toprotecttherightsofotherpersons,but
withoutgivingthemrights(suchasthe
trafficrulesorthetechnicalrulesforthe
constructionofbuildings).
337
 Defencesorjustifications
Theunlawfulnessisexcludedinthe
caseof:
selfdefence
validconsent
necessity
directaction
Inthesecases,theactionisjustified
and,generally,thereisnoliability
338
 Fault
intentionornegligence
couldandshouldthepersonactdifferently?
Faultimpliesimputability thenatural
capacitytounderstandthemeaningand
consequencesofonesconduct.Children
undersevenyearsofageandpeoplewith
mentalproblemsarepresumednotimputable.
Negligenceisthefailuretoexercisethedegree
ofcare.Itismeasuredbyanobjective
standard:thedegreeofcareistheone
reasonablyrequiredtotheaverageperson.339
 Causation
Onlythedamagethatwastheresultof(caused
by)theactionoromissionofthetortfeasor istobe
compensated.Therefore,itisnecessaryto
establishacauseandeffectrelationbetweenthe
actionoromissionandthedamage,sothatitis
possibletosaythattheparticulardamageunder
analysiswastheresultoftheconductofthe
tortfeasor.
Otherwise,iftheagenthasnotchangedthe
courseofevents,heshouldnotbeheldpersonally
liableforadamageinwhichheplayedno
relevantrole,andthedamageisnotrecoverable
340
fromhim.
 causation
First,itisnecessarythatthedamageshouldnothave
happenedwithouttheconduct(condition sinequa
non).
Whatwouldhavehappenediftheconducthad
nottakenplace?Ifthecourseofeventswouldbe
thesame,thentheconductwasnotaconditionof
thedamage.
Onlyconditionsthatareconsideredasbeing
proximate,efficient,adequateordirect
theoryofadequatecausation:itisalsonecessary
that,inabstractterms,theactionisnormally
expectedtocausethedamage(itisforeseeable)or
withintheriskcreated. 341
 Strictliability
exceptiontothegeneralrule:dispenseswiththe
requirementoffault(intentornegligence)
ifapersonbenefitsfromanactivitythatcreates
socialrisks(suchasdrivingacar)thenthesame
personshouldberesponsiblefordamagescaused
bythatsourceofrisk(cuiuscommodaeius
incommoda)
inmanyinstancestherequirementoffaultisvery
difficultorimpossibletosatisfy thiscreated
disturbingsituationsofinjuredpersonswithouta
waytorecoverthedamagesincurred.
342
 Strict or objective liability

Risk Causation Damage

Must be:

Unlawful (illegal, unjustified)

[There is no requirement of fault]
343
 Casesofstrictliability

Responsibilityofthemasterbythe
actionsoftheservant
Animals
Vehicles
Aircraft
Powerplantsandgasinstalations
Productliability
344
 Responsibilityofthemasterbythe
actionsoftheservant
Anyonewhodirectsanotherpersonto
performacertainactivity(master)isstrictly
liablebythedamagescausedbythisperson
(servant),iftheservantisalsoliable.
However,themasterhastherighttobe
reimbursedbytheservantofanymoneypaid
incompensationtoinjuredparties.
Thestrictliabilityofthemasterservesthe
purposeofensuringthatthevictimwill
receivecompensation 345
 Animals

Liabilityarisesfromtheparticular
dangersorrisksassociatedwith
animals(art.495).Theownerofthe
animalisliableirrespectiveoffault

346
Colisionofvehicles

347
 Vehicles
Liabilityarisesfromtheparticulardangers
orrisksspecificallyassociatedwithmotor
vehiclesirrespectiveoffault.Theseinclude:
collision,injurytopedestrians,damageto
propertyorsuddensicknessofthedriver.
Incaseofcollisionofvehicles,ifnoneofthe
driversisatfault,theresponsibilityisshared
accordingtothecontributionofeachvehicle
totheriskofaccident
Article501statesthemaximumlimitsof
liability 348
 Aircraft

Theowneroruserofanaircraftis
strictlyliablefordamagescausedto
thirdpartieswhileinflight,onthe
ground,orbyobjectsfallingfromit.
Thecarrierisstrictlyliablefordamages
causedtopersonsandluggagecarried.
ThelimitsaresetintheWarsaw
Convention.
349
 unjustenrichment
A person who has acquired any asset
without a legal cause, is bound to return
it. This is especially the case where:
therewasnoobligation;
thecauseofthepaymentdisappeared;
thepurposeofthepaymentdidnot
materialize.

350
SECURITYOF
OBLIGATIONS

351