Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Approved by Decree-Law No 47.344, of 25 November 1966,
with subsequent modifications
Book I General Part
Title I On laws, their interpretation and application
Chapter III Rights of foreigners and conflicts of laws
Section I General provisions
(Legal status of foreigners)
Foreigners are equaled to national citizens in what concerns the enjoyment of civil rights, unless otherwise provided by the law.
Foreigners do not, however, enjoy rights awarded by their respective State to its own nationals, which are not awarded to Portuguese citizens under equal circumstances.
The scope of application conferred to a law includes only those rules which, due to their content and function in that law, correspond to the legal institution envisaged by the conflicts rule.
(Reference to foreign law. General principle)
A reference of a conflict rule to a foreign law determines only the application of its internal rules of law, unless otherwise provided.p. 3667
(Renvoi to the law of a third State)
However, if the conflict of laws rules of the law designated by the Portuguese conflict rule refer to another law and that law considers itself applicable with respect to the particular issue at stake, the internal rules of law of that law apply.
The preceding paragraph does not apply if the law designated by the Portuguese conflict rule is the personal law and the interested party habitually resides on Portuguese territory or in a country whose conflict rules deem applicable the internal law of the State of which the interested party is a citizen.
However, the rule contained in paragraph 1 applies to guardianship and curatorship, patrimonial relationships between spouses, parental authority, relationships between adopting and adoptive parties and succession of deceased persons, if the national law designated by the conflict rules refers to the law of the location of the immovable property and the latter deems itself applicable.
(Renvoi to Portuguese law)
If the conflict rules of the law designated by the Portuguese conflict rule refer back to Portuguese internal law, this is applicable.
However, in what concerns issues included in the personal status, Portuguese law is only applicable if the interested party habitually resides in Portuguese territory, or if the law of the country of that party’s habitual residence also determines the application of Portuguese internal law.
(Cases in which renvoi is not allowed)
The two preceding articles do not apply if that would render invalid or ineffective a juridical act which would be valid or effective under the rule contained in article 16, or if that would render illegitimate a status that would otherwise be legitimate.
The preceding articles also do not apply if the parties have chosen the foreign law in the cases in which such choice is allowed.
(Pluralist legal systems)
When, due to a person’s nationality, the law of a State with different coexisting local systems of law is applicable, the applicable system is determined in each case by the internal law of that State.
In the absence of rules of interlocal law, the conflict rules of the State in question apply; and, if the latter are insufficient, the interested party’s personal law is deemed to be the one of his/her habitual residence.
If the applicable law is a territorially unitary legal order, but different legal systems are in force therein for different categories of persons, the provisions of that law relating to conflicts of systems shall apply.
When applying conflict rules, any situations of fact or of law created with the fraudulent intent of avoiding the application of the law that would otherwise be applicable are irrelevant. 3p. 3668
The rules of the foreign law designated by the conflict rules do not apply if such application offends the Portuguese State’s fundamental principles of international public policy.
In such cases, the most appropriate rules of the applicable foreign law apply, or, subsidiarily, the rules of Portuguese internal law.
(Interpretation and ascertainment of foreign law)
Foreign law is interpreted within the legal system to which it pertains and in accordance with the rules of interpretation established therein.
If it is impossible to ascertain the content of the applicable foreign law, the subsidiarily applicable law applies, and the same procedure shall be adopted whenever it is not possible to determine the factual or legal elements of which the designation of the applicable law depends.
(Acts performed on board)
Acts performed aboard vessels or aircraft, outside of ports or aerodromes, are governed by the law of the place of their registration, whenever the territorial law is applicable.
Military vessels and aircraft are considered as a part of the territory of the country to which they belong.
Section II Conflict of laws rules
Subsection I Scope and determination of the personal law
Article 25 (Scope of the personal law)
The status of individuals, the capacity of natural persons, family relations and successions of deceased persons are governed by the personal law of the respective subject, without prejudice to the restrictions set out in this section.
Article 26 (Beginning and termination of legal personality)
The beginning and termination of legal personality are also determined by the personal law of each individual.
Where a legal effect depends on one person surviving another and their status is determined by different personal laws, and the presumptions of survival of these laws are incompatible, paragraph 2 of article 68 applies.
Article 27 (Personality rights)
The existence, protection and restrictions of exercise, personality rights are also governed by the personal law.
However, foreigners or stateless persons do not enjoy any form of legal protection not recognised by Portuguese law.p. 3669
Article 28 (Exceptions as to the effects of incapacity)
Juridical acts concluded in Portugal by a person incapable according to the applicable personal law may not be annulled on grounds of such incapacity, should that person be considered capable under Portuguese internal law if it were applicable.
This exception does not apply if the other party was aware of the incapacity, or if the juridical act is unilateral, pertains to family law or to the law of succession or relates to the disposition of immovable property located abroad.
If the juridical act was concluded by the incapable person in a foreign country, the law of that country shall be complied with, as long as it contains rules identical to those of the preceding paragraphs.
Article 29 (Majority)
If a person changes his/her personal law, this does not affect the majority acquired under the previous personal law.
Article 30 (Guardianship and analogous institutions)
Guardianship and analogous institutions for the protection of incapable persons are governed by the personal law of the incapable person.
Article 31 (Determination of the personal law)
The personal law of an individual is the law of his/her nationality.
However, juridical acts concluded in the country of the declarant’s habitual residence, in conformity with that country’s law, are recognised in Portugal, as long as that law considers itself applicable.
Article 32 (Stateless persons)
The personal law of stateless persons is that of the place where he/she habitually resides or, if he/she is a minor or interdicted person, his/her legal domicile.
In the absence of an habitual residence, the provision of paragraph 2 of article 82 applies.
Article 33 (Legal persons)
The personal law of a legal person is the law of the State where the principal and effective seat of its administration is located.
The personal law governs in particular: the capacity of the legal person; the formation, functioning and attributions of its organs; the forms of acquisition and loss of the position of associate and the corresponding rights and duties; the liability of the legal person, as well as of its organs and their members, towards third parties; the transformation, dissolution and extinction of the legal person.
The transfer from one State to another of the seat of the legal person does not extinguish its legal personality, provided the laws of both seats agree on that.
A merger of entities with different personal laws is assessed with regard to both personal laws.p. 3670
Article 34 (International legal persons)
The personal law of international legal persons is the law designated in the convention that created them or in their by-laws and, absent such a designation, the law of the country of its principal seat.
Subsection II Law applicable to juridical acts
Article 35 (Declarations of intent)
The perfection, interpretation and gap-filling of a declaration of intent is governed by the law applicable to the substance of the juridical act, which also applies to the absence and vices of consent.
The effect of a conduct as a declaration of intent is determined by the law of the common habitual residence of the declarant and of his/her counterparty and, in the absence of such a common residence, by the law of the place where the conduct took place.
The effect of silence as a declaration of intent is also determined by the law of the common habitual residence and, in the absence of such a common residence, by the law of the place where the offer was received.
Article 36 (Form of the declaration)
The form of a declaration of intent is governed by the law applicable to the substance of the juridical act; the observance of the law of the place where the declaration was made is however sufficient, unless the law governing the substance of the juridical act requires a specific form, the non-observance of which renders the act void or ineffective even if it was concluded abroad.
The declaration is also formally valid if, instead of the formal requirements of the local law, those of the State referred to by the conflicts rule of the local law were observed, without prejudice to what is stated in the last part of the preceding paragraph. 6
Article 37 (Agency by operation of law)
Agency by operation of law is governed by the law applicable to the legal relationship from which the authority of the agent is derived.
Article 38 (Representation of legal persons)
The representation of a legal person by its organs is governed by that legal person’s personal law.
Article 39 (Voluntary agency)
Voluntary agency is governed, in what concerns the existence and extent of the agent’s powers, as well as their modification, effects and termination, by the law of the State in which those powers are exercised.
However, if the agent exercises his/her powers in a different country from that which was specified by the principal, and that fact is known by the third party with whom he/she enters into a contract, the law of the country of habitual residence of the principal applies.
p. 3671If the agent acts in a professional capacity and the third party with whom he/she enters into a contract is aware of this, the law of the agent’s professional domicile applies.
When the agency refers to the disposition or administration of immovable things, the law of the country where those things are situated applies.
Article 40 (Prescription and caducity)
Prescription and caducity are governed by the law applicable to the right to which they relate.
Subsection III Law applicable to obligations
Article 41 (Obligations arising from juridical acts)
Obligations arising from a juridical act, as well as its substance, are governed by the law chosen by the parties or which they had in mind.
Parties’ choice or reference may however only fall upon a law the application of which corresponds to a serious interest of the declarants or which is connected to one of the elements of the juristic act that may be taken into consideration in private international law.
Article 42 (Subsidiary connecting factor)
Failing a choice of the applicable law, the law of the declarant’s habitual residence applies to unilateral juridical acts and that of the parties’ common habitual residence to contracts. 7
Absent a common residence, the law of the habitual residence of the person providing the benefit applies to gratuitous contracts and the law of the place where the contract was concluded to other contracts.
Article 43 (Negotiorum gestio)
Management of another person’s affairs is governed by the law of the place where the main activity of the manager takes place.
Article 44 (Unjustified enrichment)
Unjustified enrichment is governed by the law on the basis of which the patrimonial value was transferred to the enriched person.
Article 45 (Non-contractual liability)
Non-contractual liability resulting from a tort, from risk or from a lawful conduct is governed by the law of the State where the principal activity causing the injury occurred; if the liability is due to an omission, the law of the place where the liable person should have acted applies.
If the injuror is considered liable by the law of the State where the injury was inflicted but not by the law of the place where the conduct causing the damage occurred, the former law applies, provided that the injuror should have foreseen the occurrence of an injury in that country as a consequence of his/her act or omission.
If, however, the injuror and the injured have the same nationality or, in its absence, the same habitual residence, and are occasionally abroad, the law of the common nationality or residence p. 3672applies, without prejudice to the provisions of the local State that must be applied without distinction to all persons.
Subsection IV Law applicable to things
Article 46 (Rights in rem)
Possession, ownership and other rights in rem are governed by the law of the State in whose territory the things are located.
In what concerns the acquisition or transfer of rights in rem over things in transit, these are deemed to be located in their country of destination.
The constitution and transfer of rights over means of transportation subject to registration are governed by the law of the country where they were registered.
Article 47 (Capacity to acquire rights in rem over immovable things or to dispose of them) 8
The capacity to acquire rights in rem over immovable things or to dispose of them is also governed by the law of the place where the thing is located as long as this law so provides; otherwise, the personal law applies.
Article 48 (Intellectual property)
Copyright is governed by the law of the place of the first publication of the work and, if this has not been published, by the personal law of the author, without prejudice to what is provided by special legislation.
Industrial property rights are governed by the law of the country where they were created.
Subsection V Law applicable to family relations
Article 49 (Capacity to marry or to enter into prenuptial agreement)
The capacity to marry or to enter into a prenuptial agreement is governed in relation to each party by his/her personal law; the same law applies to the effects of the lack of consent and vices of consent of the parties.
Article 50 (Form of marriage)
The form of marriage is governed by the law of the State where the act is celebrated, without prejudice to what is established by the following article.
Article 512 (Deviations)
A marriage between two foreigners in Portugal may be celebrated according to the form prescribed by the national law of either party, before their respective diplomatic or consular agents, as long as that law recognizes the same authority to Portuguese diplomatic and consular agents.
p. 3673A marriage abroad of two Portuguese citizens or of a Portuguese and a foreign citizen may be celebrated before the diplomatic or consular agent of the Portuguese State or before a minister of the catholic cult.
In either of the cases foreseen in the previous paragraph, the marriage must be preceded by the respective procedure, organised by the competent authority, unless it is dispensed in accordance with article 1599.
A marriage abroad of two Portuguese citizens or of a Portuguese and a foreign citizen, in accordance with canonical laws, is considered a catholic marriage, regardless of the legal form required by local law for the celebration of the marriage and the record of the parochial registry shall be used to transcribe such a marriage. 9
Article 523 (Relations between spouses)
Relations between spouses are governed by their common national law, without prejudice to what is provided by the following article.
If the spouses do not have the same nationality, the law of their common habitual residence applies and, in its absence, that of the country with which the family life is most closely connected.
Article 534 (Prenuptial agreements and matrimonial property regimes)
The substance and effects of prenuptial agreements and of the legal or agreed matrimonial property regime are governed by the national law of the parties at the time of the celebration of the marriage.
If the parties do not have the same nationality, the law of their common habitual residence at the time of the marriage applies; absent the latter, the law of the first marital residence applies.
If the applicable law is foreign and one of the spouses is habitually resident in Portuguese territory, they may agree upon the application of one of the regimes allowed by this code.
Article 54 (Modifications of matrimonial property regimes)
Spouses may modify the legal or agreed matrimonial property regime if they are authorised to do so by the law applicable under article 52.
The new agreement will under no circumstances have retroactive effects to the detriment of a third party.
Article 55 (Legal separation and divorce)
The provisions of article 52 apply to legal separation and to divorce.
However, if there is a change of the applicable law during the marriage, only a fact which was relevant at the time when it occurred may serve as grounds for the separation or divorce.
Article 565 (Establishment of parent-child relationships)
The establishment of a parent-child relationship is governed by the personal law of the parent at the time when the relationship is to be established.
p. 3674In the case of a child of a married woman, the establishment of a parent-child relationship in what concerns the father is governed by the common national law of the mother and her husband; in the absence of such a common national law, the law of 10 spouses’ common habitual residence applies and, in the absence of the latter, the child’s personal law applies.
For the purposes of the previous paragraph, the relevant moment is that of the birth of the child or that of the dissolution of the marriage, if this occurred before the birth.
Article 576 (Relations between parents and children)
Relations between parents and children are governed by the common national law of the parents and, in the absence of that common national law, by the law of their common habitual residence; if the parents habitually reside in different States, the child’s personal law applies.
If the parent-child relationship is established in relation to only one parent, the personal law of that parent applies; if one of the parents is deceased, the personal law of the surviving parent applies.
Article 587 [Omissis]
Article 598 [Omissis]
Article 609 (Adoptive parent-child relationships)
The establishment of an adoptive parent-child relationship is governed by the personal law of the adopter, without prejudice to the following paragraph.
If the adoption is made by husband and wife or if the adoptee is the child of the adopter’s spouse, the common national law of the spouses applies and, in the absence of that common national law, the law of their common habitual residence applies; in the absence of such a common residence, the law of the country most closely connected with the family life of the adopters applies.
Relationships between the adopter and the adoptee and between the adoptee and his/her family of origin are governed by the personal law of the adopter; in the cases regulated by the previous paragraph, the provisions of article 57 apply.
If the law applicable to the relationships between the adoptee and his/her parents does not foresee the institution of adoption, or does not allow it in relation to those who have a family situation such as that of the adoptee, the adoption is not allowed.
Article 6110 (Special requirements for the acknowledgement of parentage or adoption) 11
If the personal law of a person to be acknowledged as a child or adopted requires the consent of the child for that purpose, this requirement shall be satisfied.
p. 3675If the interested person is linked to a third party by a family tie of by a guardianship relationship, and the law governing such a relationship requires the consent of that third party, this requirement shall also be satisfied.
Subsection VI Law applicable to successions
Article 62 (Applicable law)
The succession of a deceased person is governed by the personal law of the deceased at the time of his/her death; the same law defines the powers of the administrator of the deceased’s estate and those of the executor of the will.
Article 63 (Capacity to dispose)
The capacity to make, modify or revoke a disposition upon death, as well as the special requirements of form concerning such dispositions due to the declarant’s age, are governed by the personal law of the deceased at the time when the declaration was made.
A person who, having made a disposition, acquires a new personal law retains the capacity necessary to revoke the disposition under the previous law.
Article 64 (Interpretation of dispositions; lack and vices of consent)
The personal law of the deceased at the time when the declaration was made governs:
The interpretation of its provisions and dispositions, unless there is an express or implied reference to another law;
The lack of consent and vices of consent;
The admissibility of joint wills and agreements on the succession, without prejudice to, in what concerns the latter, the provisions of article 53.
Article 65 (Form)
Dispositions upon death, as well as their revocation or modification are valid as to their form if they satisfy the requirements of the law of the place where the act was made or those of the personal law of the deceased either at the time when the declaration was made or at the time of his/her death, or those of the law referred to by the conflicts rule of the local law.
If, however, the personal law of the deceased at the time when the declaration was made requires the observance of a specific form, the non-observance of which renders the declaration void or ineffective, even if the act was made abroad, such requirement shall be satisfied.p. 3676
Code of Civil Procedure11
Law No 41/2013 of 26 de June
Without prejudice to the rules established in European regulations and other international instruments, Portuguese courts have international jurisdiction in any of the circumstances mentioned in articles 62 and 63 or whenever the parties in accordance with article 94 attribute jurisdiction to them.
Article 62 (Grounds for attribution of international jurisdiction)
Portuguese courts have international jurisdiction:
When the action may be brought before a Portuguese court under the rules of territorial jurisdiction established in Portuguese law;
The fact that gave rise to the cause of action in the lawsuit or any facts leading to the cause of action have taken place in Portuguese territory;
When effect cannot be given to the invoked right other than through an action filed in Portuguese territory or the claimant has appreciable difficulty in commencing an action abroad, as long as there is a relevant connecting element, either personal or physical, between the subject matter of the dispute and the Portuguese legal order.
Article 63 (Exclusive jurisdiction of the Portuguese courts)
Portuguese courts have exclusive jurisdiction:
over rights in rem in immovable property and tenancies of immovable property located in Portuguese territory; however, with regard to tenancies of immovable property for temporary personal use for a maximum period of six consecutive months, the courts of the Member State of the European Union where the defendant is domiciled shall also have jurisdiction, as long as the tenant is a natural person and the tenant and proprietor are domiciled in the same Member State;
over the validity of the constitution and the dissolution of societies or other legal persons that have their seat in Portugal, as well as the validity of the decisions of their organs; to determine such seat, the Portuguese court applies its private international law rules;
over the validity of registrations in public registers kept in Portugal;
over execution of immovable property located in Portuguese territory;
over insolvency and recovery proceedings of persons domiciled in Portugal or legal persons or societies whose seats are located in Portuguese territory.p. 3677
Article 94 (Derogation of jurisdiction and choice of forum agreement)
Parties may agree on a competent jurisdiction to settle a certain dispute, or disputes that may arise from a legal relationship, as long as the relationship in question has a connection to more than one legal order.
The contractual choice may involve the conferral of exclusive or merely non-exclusive jurisdiction in relation to Portuguese courts, whenever these are competent. In case of doubt the jurisdiction is presumed to be exclusive.
The choice of forum is only valid whenever the following cumulative requirements are met:
incidence over non inalienable rights;
acceptance by the law of the designated court;
justification by a serious interest of both parties or of one of them, as long as it does not cause serious inconvenience to the other party;
non-interference with matters of exclusive jurisdiction of the Portuguese courts;
resulting from a written agreement or confirmed in writing, containing an explicit reference to the competent jurisdiction.
For the purposes of the previous sub-paragraph, an agreement is considered to be in written form when stated in a document signed by the parties or resulting from the exchange of letters, telex, telegrams or other means of communication that produce written evidence, whether such instruments directly contain the agreement or a clause referring to a document that contains it.
Article 978 (Necessity of revision)
Without prejudice to what is established in Treaties, Conventions, Regulations of the European Union and special laws, no decision on private rights, delivered by a foreign court, is effective in Portugal, regardless of the parties’ nationality, without revision and confirmation.
No revision is necessary when the decision is invoked merely as evidence in a pending proceeding before Portuguese courts. The evidence is subject to the assessment of the judge.
Article 979 (Competent court)
The Court of Appeals of the place of domicile of the person against whom the decision is to be enforced is competent for its revision and confirmation; articles 80 to 82 apply, with the necessary adaptations.
Article 980 (Necessary requirements for confirmation)
For a judicial decision to be confirmed it is necessary:
that no doubts arise over the authenticity of the document that contains the judicial decision or over the intelligibility of the decision;
that it is final according to the law of the country where it was delivered;
that it originates from a foreign court whose competence has not been fraudulently invoked and that it does not relate to matters covered by the exclusive jurisdiction of the Portuguese courts;
that lis pendens or res iudicata exceptions cannot be raised, regarding a case litigated in a Portuguese court, except if it was the foreign court that prevented jurisdiction;
p. 3678that the action has been regularly served on the defendant, according to the law of the court of origin, and that procedural principles, namely the adversarial principle and the principle of equality between the parties, have been respected;
that recognition of the decision would not lead to a result that is manifestly incompatible with the international public policy principles of the Portuguese State.
Article 981 (Defence and reply)
Once the document containing the decision to be reviewed is presented with the petition to the court, the counter-party is served and can, within 15 days, raise its defence; the applicant may reply in the 10 days subsequent to the service of the defence.
Article 982 (Statements and hearing)
Once the statements have been made, and all the procedural steps ordered by the judge rapporteur have been carried out, the court file is made accessible to the parties and the Public Prosecutor for 15 days, for summation.
The hearing is conducted according to the rules applicable to appeals.
Article 983 (Grounds for challenging the claim)
The claim can only be challenged if any of the requirements mentioned in article 980 is absent or if any of the grounds for revision specified in paragraphs a), c) and g) of article 696 arises.
If the judicial decision was addressed to a natural or legal person of Portuguese nationality, the challenge may also be based on the circumstance that the result of the action would be more favourable if the foreign court had applied Portuguese substantive law, whenever the case would have been solved according to it under the conflict of law rules of the Portuguese legislation.
Article 984 (Ex officio activity of the court)
The court will verify ex officio if the conditions set out in paragraphs a) and f) of article 980 are satisfied, and also deny ex officio the confirmation when, through examination of the procedure that was followed or through knowledge acquired in the exercise of its functions, it concludes that any of the requirements in paragraphs b), c), d) and e) of the same provision are lacking.
Article 985 (Appeal from the final decision)
The decision on the merits from the Court of Appeals can be appealed on points of law.
The Public Prosecutor, even when not a main party, may appeal on the grounds of violation of paragraphs c), e) and f) of article 980.
Translation by Prof. Dário Moura Vicente, University of Lisbon (Portugal).
As revised by Decree-Law No 324/2007, of 28/9/2007.
As revised by Decree-Law No 497/77, of 25/11/1977.
As revised by Decree-Law No 497/77, of 25/11/1977.
As revised by Decree-Law No 497/77, of 25/11/1977.
As revised by Decree-Law No 497/77, of 25/11/1977.
Revoked by Decree-Law No 496/77, of 25/11/1977.
Revoked by Decree-Law No 496/77, of 25/11/1977.
As revised by Decree-Law No 497/77, of 25/11/1977.
As revised by Decree-Law No 497/77, of 25/11/1977.
Unofficial translation by Dulce Lopes, Assistant Professor at the Law Faculty of the University of Coimbra (Portugal) and Invited Lecturer at the Law Faculty of the Catholic University of Lille (France).