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PORTUGUESE CIVIL CODE, 1867

Official Translation with notes

First Edition

August, 2018

© Government of Goa

Price: Rs.

Published by Government of Goa

Printed by Govt. Ptg. Press,

Government of Goa,

Mahatma Gandhi Road,

Panaji - Goa - 403001

Email : dir-gpps.goa@nic.in

Website : www.goaprintingpress.gov.in

Tel. No. : 918322426491

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iii

GENERAL CONTENTS

Contents Page No.

1. Introductory Note .................. v

2. Charter of Law of 1st of July 1867.................. vii

3. Law dated 18/11/1869 extending the

Civil Code to the overseas provinces .................. xi

4. Chronology of legislation affecting the Code .................. xv

5. Internal Organization of the Civil Code .................. xvii

6. Table of contents .................. xix

7. Detailed index of articles .................. xxv

8. Civil Code .................. 1 - 540iv

INTRODUCTORY NOTE

iTo guide and facilitate the use of the Code as to which articles are in force or not, notes have been inserted wherever possible below the articles or as footnotes all over the text of this translation. iIn various areas of law although corresponding Indian Acts have been extended to Goa, there are provisions in the Civil Code which do not have a corresponding provision in the equivalent Indian legislation. Therefore it is often an open arguable question whether a provision of the Civil Code is in force or not. iUnlike certain local legislations like the Code of Communidades, the text of the provisions of which were actually amended, bodily amendments in the text of the articles of the Civil Code were never carried out at any time after Liberation. iThis type of amendment was done only once by the Portuguese Central Government at Lisbon, by Decree No.19126 of 16/12/1930, when the text of many articles were amended and subsequent editions of the Code were published with the amended text. iThe Family Laws (Marriage, Divorce and Protection of Children) enacted in 1910-11 were also not physically integrated in the body of the Code. iSo also the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 enacted in

2016 does not directly and specifically repeal but only states that corresponding provisions

shall stand repealed. iA comprehensive re-codification of the Code including in it also the Family Laws, Succession and Inventory into one unit is the need of the hour. iThe Portuguese Civil Code, 1867 has survived by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962. iArticle 348 of the Constitution provides for an English translation of legislation which is in a language other than English. Such a translation is to be published in the Official Gazette and shall thereafter be deemed to be the authoritative text thereof in the English language. iThe High Court of Bombay at Goa by Order dated 24/03/2017 in Public Interest Litigation (Suo Moto) No.1 of 2017 also ordered that an official translation of this Code in

English be prepared. v

iIn this Code, each provision is referred to as an article which corresponds to what we call section in Indian legislation. iIn the said Code, the word Section is a part of a chapter and consists of a number of articles. iBrief titles/ headnotes have been inserted for each Article of the Code so as to facilitate its use. iMany concepts in the Civil Code do not have a synonymous expression in Indian or English Law. Hence various legal concepts and expressions have been translated to the nearest possible meaning considering the fact that this is a case of rendering a mid 19th century exposition of law in elegant, often archaic Portuguese into a legal language understandable to contemporary Indian lawyers.

Dr. F.E. Noronhavi

CHARTER OF LAW OF 1ST OF JULY 1867

DOM LUIZ, by the grace of God, King of Portugal and Algarves, etc. We hereby make known to all our subjects that the general courts have decreed and we want the law to be as follows: Article 1 - The project of the Civil Code, which is a part of the present law, is hereby approved. Article 2 - The provisions of the said Code shall come into force in the entire continental territory of the Kingdom and adjacent islands, six months after the publication of the present law in the Gazette of Lisbon.

iPublication was done from 5th August to 21st September 1867 and the Code came into force on 22nd March 1868.

Article 3 - For all the purposes foreseen in the same Code the date of promulgation, shall be the date on which the Code shall come into force in terms of preceding article. Article 4 - All the provisions of the Civil Code, the implementation of which absolutely depends upon the existence of public offices or other institutions, which are not yet created, shall be binding only from the time such institutions function. Article 5 - From the time the Civil Code comes into force, all earlier legislation dealing with matters which the said Code covers shall stand revoked, whether this legislation is general or special. Article 6 - All the modifications to the law, which are made in the future on matters contained in the Civil Code, shall be considered as being part thereof and inserted at the proper place, whether by replacement of the altered articles, or by deletion of repealed articles or by adding those which are necessary. iOnly Decree no. 19126 of 16/12/1930 was implemented in this manner. Article 7 - A commission of jurists shall be entrusted by the Government, during the first five years of the implementation of the Civil Code to receive all representations, reports from thevii Courts and any observations, concerning improvements of the said Code and to the solving of difficulties which may arise in the implementation of the same. This Commission shall propose to the Government any measures which, for the purpose indicated, appear to it necessary or convenient. Article 8 - The Government shall frame regulations necessary for the implementation of the present law. Article 9 - The Government is empowered to extend the Civil Code to the overseas provinces, after hearing competent agencies and after making modifications, which are required by special circumstances of the provinces.

iIn the exercise of this permission, the Government published the Decree of 18/11/1869 extending the Code to the overseas

provinces safeguarding the usages and customs of the natives of the New Conquests. The Code came into force therein on

01st July 1870. Subsequently by Decree of 16th December 1880, it ordered safeguarding in favour of the gentile Hindus of

Goa without distinction of Old and New Conquests, their special and peculiar usages and customs reviewed and codified

by this decree. Article 10 - All the legislation to the contrary stands revoked. We order therefore all the authorities to whom the knowledge and implementation of the said law concerns, to carry out and have the same carried out and observed it as fully as contained therein. The Ministers and the Secretaries of State of Ecclesiastical affairs and Justice and of Naval and Overseas Affairs, to have it printed, published and circulated.

Issued in the palace of Ajuda, on 01st July 1867.

The King, with seal and coat of arms - Augusto César Barjona de Freitas - Viscount of Praia

Grande - Place of great seal of royal arms.

Charter of law by which your Majesty having sanctioned the Decree of the general chambers of

26th June last, which approves the project of the Civil Code, which is part of the present law, and

the provisions of which shall come into force in the entire continental territory of the kingdom and adjacent islands, six months after the publication of the same law in the Lisbon Gazette; and authorizes the Government to make it extensive to the overseas provinces, effecting to the sameviii modifications, which the circumstances therein demand; orders the same decree to be carried out and observed, as fully as contained therein, in the manner herein before declared. For your Majesty's approval - Joaquim Pedro Seabra Júnior, prepared it.ix x LAW DATED 18TH NOVEMBER , 1869 EXTENDING THE CIVIL CODE TO THE

OVERSEAS PROVINCES

Taking into consideration the report of the Minister and Secretary of the State of the Naval and Overseas Affairs and in exercise of the powers conferred by Article 9 of the Law of 1st July, 1867;
Having heard the consultative body of the overseas and the Council of Ministers:

It is hereby ordered as follows:

Article 1: The Civil Code approved by the Charter of law dated 1st July 1867, is extended to the overseas provinces, along with the regulations of the Council on tutelage and divorce causes, dated 12th March 1866 and of Registration of properties dated 14th May of the same year. Article 2: The Code as well as those regulations shall come into force, regardless of their publication in respective Official Gazettes, in all overseas provinces with effect from 1st July,

1870 and the same day is deemed equally as its publication in the overseas territories for all

purposes, with the modifications contained in this decree. Sole Paragraph: The Ministry of Navy and Overseas shall remit to the Governors of the overseas provinces, copies of the Code and of respective regulations to the officials who are entrusted with the work of distribution of the Gazettes. Article 3: The transitory legislation over the slaves, who have been given freedom by the decree dated 25th February last, shall continue in force. Article 4: The marriage performed as per religious rites amongst non-Catholics, shall have civil effects which the Code recognizes to the catholic marriage and civil marriage. Article 5: The registration of ownership shall continue to be mandatory in the overseas, as it was as per Article 10 of the Code of Property credit, approved by decree dated 17th October, 1865.xi Article 6: All the provisions of the Civil Code, the enforcement of which is dependent absolutely

on the existence of law offices or other institutions which have not been created, shall be effective

only when such offices start functioning. Article 7: The Official Gazettes of the overseas provinces shall be substitutes of the "Gazettes of Relação" for the purpose of all publications referred to in the Code. Article 8: From the date the Civil Code comes into force, all the legislation contrary to that covered by the Civil Code shall stand repealed.

Paragraph 1 : The repeal shall not effect:-

(a)In India the usage and customs of the New Conquests and of Daman and Diu, compiled in respective codes and which are not contrary to moral or public policy. (b)In Macau, the usage and customs of Chinese in the causes within the competence of the

Procurator of Chinese affairs.

(c)In Timor, the usage and customs of indigenes in relation to dispute between them. (d)In Guinea, the usage and customs of gentiles known as grumetes in relation to disputes between them. (e)In Mozambique, the usage and customs of Baneanes, Bhatias, Parsis, Muslims, gentiles and indigenes in relation to disputes between them. Paragraph 2 : Wherever the parties mentioned in the preceding paragraph opt for the application of the Civil Code, the same shall be applicable. Paragraph 3 : The Governors of the overseas provinces shall start codifying the usages and customs saved and not codified and shall submit the draft for the approval of the Government. Article 9: A committee of legal advisors shall be entrusted by the Government, for a period of five years from the date of the commencement of the Code, with the task of receiving all the representations, views of the Courts and any other suggestions relating to the improvement of the same Code, and for the solution of the difficulties which may arise in connection with execution of the Code. Such committee shall propose to the Government any other measure which it deems fit for the above purpose.xii Article 10: The Government shall frame regulation necessary for the implementation of the present decree. Article 11: All the legislation contrary to the same shall stand repealed. The Minister and the Secretary of the State relating to the affairs of the Navy and Overseas to take steps for the enforcement of the decree. Seat of the Palace on 18th November, 1869 - King - Luiz Augusto Rebello da Silva.xiii xiv

Chronology of Legislation affecting the Code:-

H1876 - A Code of Civil Procedure was enacted affecting certain provisions in the remedial part of the Code.

H1880 - Code of Usages and Customs of Hindus.

H1888 - Portuguese Commercial Code.

H1910-1911 - Family Laws:- Law of Marriage and Law of Protection of Children were passed. Amendments are noted in the present translation at appropriate places. Law of Divorce was new and additional to the provisions of the Code. H1912 - Civil Registration Code was passed in Portuguese India affecting the Civil

Registration and Notarial Law.

H1927 - Notarial decree no. 8373 regulating notarial law. H1930 - Decree no. 19126 was passed with amendments which are already carried out in the text of the Code. H1939 - Code of Civil Procedure deals with many procedural provisions in the Civil Code.

H1940 - Concordat.

Decree no. 30615.

H1946 - Decree on Canonical Marriages.

H1961 - Decree no. 43525 dated 07/03/1961 regulating leases.

Codigo do Registo Predial, 1959.

After Liberation of Goa Daman and Diu

H1962 - Goa Daman and Diu Administration Act, Sec 5(1) maintains provisions which have been not repealed H1963 - Evidence Act, Contract Act, Transfer of Property Act, Indian Stamp Act, Registration Act, Child Marriage Restraint Act, Sale of Goods Act, Partnership Act,

Lunacy Act, Treasure Trove Act are extended.

H1965 - Code of Civil Procedure, 1908, extended to Goa, Daman and Diu.

H1987 - Mental Health Act.xv

H2016 - Goa Succession, Special Notaries and Inventory Proceeding Act, 2012.xvi

Internal Organization of the Civil Code

Code, Parts and Books

The Code is organized into:-

Parts I, II, III & IV

Each part has Books

Part I Civil Capacity has only one, Sole Book

Part II - Acquisition of rights has

Book I - Original and unilateral rights

Book II - Bilateral rights (Contracts)

Books III - Rights acquired solely from another and statutory rights (Succession)

Part III - Property: Sole book

Part IV - Violation and restitution of rights

Book I - Civil Liability

Book II - Proof and restitution

Books are further divided into Titles, Chapters, Sections and Sub-sections and Divisions and finally articles.xvii xviii

PORTUGUESE CIVIL CODE 1867

TABLE OF CONTENTS

Contents Articles Page Nos.

PART I

SOLE BOOK

CIVIL CAPACITY ( 1 - 358) 1

TITLE I - Civil capacity and law regulating it in general 1 - 173 TITLE II - As to how the status of Portuguese citizen is acquired 18 - 215 TITLE III - As to how the Portuguese citizenship is lost 22 - 23 8 TITLE IV - Of the Portuguese citizens in foreign country 24 - 25 9 TITLE V - Of the foreigners in Portugal 26 - 319 TITLE VI - Legal or juridical persons 32 - 39 10

TITLE VII - Domicile (40 - 54) 12

Chapter I - General provisions 40 - 42 12

Chapter II - Voluntary domicile 43 - 4612

Chapter III - Domicile of necessity 47 - 5413

TITLE VIII - Absence (55 - 96) 15

Chapter I - Provisional curatorship of the assets of the absentee 55-6315 Chapter II - Definitive curatorship of unmarried absentee 64 - 8117 Chapter III - Administration of the assets of the married absentee 82 - 9621 TITLE IX - Legal incapacity due to minority and the manner (97 - 313) 24 of making it good

Chapter I - General provisions 97 - 100 24

Chapter II - Parental authority 101 - 18425

Chapter III - Guardianship of legitimate and illegitimate children 185 - 31343 TITLE X - Legal incapacity on account of insanity 314 - 33671 TITLE XI - Incapacity of the deaf-dumb 337 - 33976 TITLE XII - Incapacity of the prodigals 340 - 352 76 TITLE XIII - Accidental incapacity 353 - 35479 TITLE XIV - Incapacity as a result of being awarded a penal sentence 355 - 35880xix

Contents Articles Page Nos.

PART II

ACQUISITION OF RIGHTS (359-2166)

BOOK I (359-640) 85

Original Rights and Rights acquired by one's own act and will independently of another

TITLE I - Original Rights 359 - 368 85

TITLE II - Things which can be object of appropriation and their different kinds in relation to their own nature and to the persons to whom they belong 369 - 382 87 TITLE III - Occupation (Possession) (383-473) 91

Chapter I - General provision 383 91

Chapter II - Occupation of animals 384 - 410 91 Chapter III - Occupancy of inanimate things 411 - 428 98 Chapter IV - Occupancy of common objects and products of nature not appropriated 429 - 473 102 TITLE IV - Rights which are acquired by mere possession and prescription (474 - 566)112

Chapter I - Possession 474 - 504112

Chapter II - Prescription 505 - 566 119

TITLE V - Work and Labour (567 - 640)131

Chapter I - General provision 567 - 569 131

Chapter II - Literary and artistic work 570 - 612 132

Chapter III - Patents 613 - 640 140

BOOK II (641-1722) Rights which are acquired by one's own act and volition alongwith that of another TITLE I - Contracts and obligations in general (641 - 1055) 149 Chapter I - Preliminary provisions 641 - 643 149 Chapter II - Capacity of contracting parties 644 - 646 150 Chapter III - Mutual consent 647 - 668 151xx Chapter IV - Object of contracts 669 - 671 154 Contents Articles Page Nos. Chapter V - Conditions and clauses of contracts 672 - 683155 Chapter VI - Interpretation of contracts 684 - 685157 Chapter VII - External form of contracts 686 158 Chapter VIII - Recission of contracts 687 - 701158 Chapter IX - Consequences and performance of contracts 702 - 817161 Chapter X - Security or guarantee of contracts 818 - 1029181 Chapter XI - Acts and contracts to the prejudice of third parties 1030 - 1045229

Chapter XII - Eviction 1046 - 1055231

TITLE II - Of contracts in particular (1056-1722) 234 Chapter I - Marriage 1056 - 1239235 Chapter II - Contract of society 1240 - 1317274 Chapter III - Mandate or attorneyship 1318 - 1369288 Chapter IV - Contract for personal services 1370 - 1451 297 Chapter V - Gifts 1452 - 1505 311 Chapter VI - Loan 1506 - 1536 320 Chapter VII - Aleatory contracts 1537 - 1543325 Chapter VIII - Contract of purchase and sale 1544 - 1591326

Chapter IX - Exchange 1592 - 1594 335

Chapter X -Contract of letting 1595 - 1635 336

Chapter XI - Usury 1636 - 1643 344

Chapter XII - Rent or "Censo Consignativo" 1644 - 1652 345

Chapter XIII - Emphyteusis 1653 - 1705 347

Chapter XIV - Census with reservation 1706 - 1709 357

Chapter XV - Compromise 1710 - 1721 358

Chapter XVI - Registration of transfers of immovable assets and immovable rights 1722360 BOOK III (1723-2166) Rights which are acquired by mere factum of another or by operation of law TITLE I - Management of Business 1723 - 1734 363xxi Contents Articles Page Nos. TITLE II - Succession (1735-2166) 365 Chapter I - Preliminary Provisions 1735 - 1738 365 Chapter II - Testamentary Succession 1739 - 1967 366 Chapter III - Intestate Succession 1968 - 2008 412

Chapter IV - Provisions common to testamentary

succession and statutory succession 2009 - 2166 420

PART III

SOLE BOOK

RIGHT TO PROPERTY (2167 - 2360) 455

TITLE I - Preliminary 2167 - 2170 455

TITLE II - Absolute and determinable property 2171 - 2174 456

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