(Acquisitive prescription [usucapião])
The time limits for acquisitive prescription of an enterprise are those
provided for in the Civil Code regarding acquisitive prescription of immovables.
TRANSACTIONS OVER COMMERCIAL ENTERPRISE
GENERAL PROVISIONS
(Existence of commercial enterprise)
For the purpose of negotiation, a commercial enterprise is considered to
exist if factors of production are coordinated which are likely to signify for
the public a new commercial enterprise of that type, regardless of the start of
operations.
(Form and registration)
1. The contracts that have as object the transfer of the ownership or
enjoyment of a commercial enterprise, as well as the creation of property rights
of enjoyment or guarantee over it, are valid if concluded in writing, with
certification of the signatures of the contracting parties, except if another
form is required by the nature of the goods that compose the enterprise.
2. A copy of the contracts mentioned in the previous paragraph shall be filed
with a notary's office.
3. Contracts transferring the enjoyment of a commercial enterprise or
creating property rights of enjoyment or guarantee over it are subject to
registration, which is merely optional in the remaining cases.
[As amended by Law no. 6/2000, of April 27]
TRANSFER OF COMMERCIAL ENTERPRISE
(Subsidiary rules)
The transfer of a commercial enterprise, in all matters not especially
provided for in this Section, shall be regulated, with the necessary
adaptations, by the provisions of the Civil Code that regulate the purchase and
sale contract, or the donation contract, depending upon whether the transfer is
against payment or gratuitous.
(Scope of enterprise under transfer)
1. The transfer of a commercial enterprise includes that of all goods,
tangible or intangible, that compose it and are used for the purposes of the
enterprise, except those the transfer of which is legally subject to an express
declaration.
2. Parties can exclude from the transfer such goods at they see fit, provided
that the existence of the enterprise is not prejudiced by the exclusion, and
without prejudice to the following paragraph.
3. The previous paragraph does not prevent the parties from excluding from
the transfer any good essential to the existence of the enterprise, but in such
case the acquirer shall have the right to keep its availability during the
period of time necessary for the consolidation of the enterprise in his title.
4. The contract of transfer of the enterprise is sufficient title for the
purpose of registration, in favor of the acquirer, of the goods subject to
registration that are included in the transfer in accordance with the previous
paragraphs.
(Delivery of enterprise)
1. A transferor is obliged to practice all acts that, in accordance with
usage and the type of enterprise transferred, are necessary, in accordance with
good faith, for launching the transferee in its running.
2. The transferor namely is obliged to:
a) deliver the nominative lists of clients;
b) deliver the lists of suppliers and financiers;
c) deliver the lists of collaborators;
d) make available the bookkeeping and other correspondence related to the
enterprise, for consultation and copy, for a period of five years;
e) deliver those trade and manufacture secrets which are not patented;
f) introduce the transferee to the clients, suppliers and financiers of the
enterprise.
(Usufruct and lease of enterprise)
Articles 105 and 106 apply, with the necessary adaptations, to the cases of
usufruct and lease of an enterprise, during the period for which they last.
(Obligation of non-competition)
1. Whoever transfers a commercial enterprise is obliged, for a maximum period
of five years from the date of the transfer, not to exploit, either by himself
or through or for the account of a third party, another commercial enterprise
which, given its object, location or any other circumstances, has the potential
to deviate clients from the transferred enterprise.
2. The same obligation applies to those who, as a result of their personal
relations with the transferor, might redirect the clients of the transferred
enterprise.
3. A dominant shareholder is subject to the obligation mentioned in paragraph
1 if he transfers his company participation.
4. The running of a commercial enterprise, either by himself or through or
for the account of a third party, is not considered as included in the provision
of paragraph 1 if the transferor already exercised it by the date of the
transfer.
5. An agreement of non-competition setting limits more extensive than those
imposed in paragraph 1 is valid, provided that it does not exceed the maximum
time limit there stated, and that it does not make it impossible for the transferor
to exercise any professional activity, whether entrepreneurial or not.
6. The obligation imposed in paragraph 1 can be set aside by will of the
parties, provided that it does not render the transfer of the commercial
enterprise non-viable.
7. The obligation of non-competition shall automatically cease with the
closure and liquidation of the enterprise.
(Breach of obligation of non-competition)
1. If the transferor breaches his obligation of non-competition, the
creditor, besides the right to compensation that may exist, has a right to
demand the immediate termination of the situation harmful to his rights, as well
as, if the breach arises from the creation of a new commercial enterprise by the
person subject to such obligation, to demand its immediate closure, except if
the closure is harmful for the economy of the Territory.
2. The right to demand the immediate closure mentioned in the previous
paragraph lapses if the injured party does not take legal action within three
months from the date when he knew of or could have known of the situation.
(Succession in contracts)
1. Except if there is an agreement to the contrary, and without prejudice to
special provisions, an acquirer succeeds in the rights and obligations resulting
from contracts concluded for the running of the enterprise that do not have a
personal nature.
2. The counterpart to such contracts can rescind the contract within three
months from gaining knowledge of the transfer, if there is just cause, and
without prejudice to the liability of the transferor.
3. The previous paragraphs apply to the usufructuary and to the
tenant, for the duration of the usufruct or lease of the enterprise.
(Succession in employment contracts)
1. An acquirer succeeds in the rights and obligations resulting from the
employment contracts concluded by the transferor with the employees of the
enterprise, except if, before the transfer, there was an agreement between the
transferor and the acquirer, so that the employees would continue to work for
the transferor in another enterprise.
2. The acquirer is jointly and severally liable with the transferor for all
labor credits matured by the date of the transfer, even if these relate to
employees whose labor contracts had already terminated, provided that, in the
latter case, they have been claimed by the interested parties up to the moment
of the transfer.
3. In case of transfer, an employee can release the transferor from the
obligations resulting from the employment relation.
4. The previous paragraphs apply in case of usufruct or lease of an
enterprise.
(Credits relating to transferred enterprise)
1. Except if there is an agreement to the contrary, the transfer of an
enterprise entails the automatic assignment of the credits related to the
enterprise.
2. The assignment of the credits mentioned in the previous paragraph produces
effect towards third parties from the date of registration of the transfer, even
in the absence of notification or acceptance by the debtor.
3. A payment in good faith to the transferor, by the debtor assigned,
releases the debtor.
4. The previous paragraphs only apply in case of usufruct or lease of the
enterprise if expressly stipulated.
(Debts relating to transferred enterprise)
1. An acquirer of an enterprise is liable for the debts resulting from its
running before the transfer, provided that they are entered in the compulsory
bookkeeping records.
2. The transferor is not liberated from debts resulting from running the
enterprise prior to the transfer, except if the creditors expressly assent to
this.
3. An acquirer who is held responsible, in accordance with paragraph 1, for any debts
arising prior to
the transfer, shall have a right of return against the transferor, except if
there is an agreement to the contrary.
4. Paragraphs 1 and 3 apply in case of usufruct of the enterprise; in case of
lease of the enterprise, only if expressly stipulated.
LEASE OF COMMERCIAL ENTERPRISE
(Concept)
The lease of a commercial enterprise is the contract by which one of the
parties undertakes to grant to the other, temporarily and against payment, the
total or partial enjoyment of a commercial enterprise.
(Time limit)
The time limit of a lease is five years, if not otherwise stipulated by the
parties.
(Subsidiary rules)
Without prejudice to special provisions, the general provisions of the Civil
Code on the lease contract shall apply, with the necessary adaptations, to all
matters not especially regulated in this Section.
(Obligation to run commercial enterprise)
1. A tenant is obliged to exercise the commercial enterprise, observing the
rules of a systematic and ordered manager, in order to preserve the efficiency
of the organization and without modifying its destination.
2. The tenant cannot interrupt or cease the running of the enterprise, except
in case of force majeure.
(Powers of tenant)
A tenant enjoys the technical and economic discretion inherent to the
exercise of the type of commercial enterprise at issue.
(Acts of disposal and charges over the goods of an enterprise)
1. A tenant can only create charges, transfer and replace the goods that
compose the commercial enterprise if such acts are necessary or convenient to
the conservation of the efficiency of the organization, and always with the
assent of the landlord.
2. Lack of communication of the refusal of assent, within eight days from the
moment at which the tenant communicated to the landlord the intention to
practice any of the acts mentioned in the previous paragraph, is equivalent to
assent.
3. The assent of the landlord can be judicially substituted if the refusal is
unjustified.
(Prohibition of competition)
1. During the period of a lease, the tenant of a commercial enterprise
cannot, either by himself or through or for the account of a third party, run an
enterprise identical to the leased one, except with the assent of the landlord.
2. It is understood that the assent mentioned in the previous paragraph
exists if, by the date of the lease of the enterprise, the tenant, with
knowledge of the landlord, was already running an identical commercial
enterprise.
3. Breach of paragraph 1 renders the tenant liable for the damage caused,
without prejudice to the landlord's right to rescission of the contract.
(Obligation to return)
Upon the expiry of the contract, the tenant is obliged to return the
commercial enterprise, functioning, to the landlord.
(Obligation of delivery by landlord)
A landlord is obliged, not only to deliver the leased commercial enterprise,
but also to guarantee the effectiveness of such delivery for the duration of the
contract, namely:
a) not to disturb the enjoyment of the enterprise by the tenant;
b) to effect the extraordinary repairs that may be necessary for the
enjoyment of the enterprise;
c) to fulfill the formalities necessary to maintain the availability of the
intangible goods that are part of the enterprise.
(Obligation of non-competition)
1. A landlord is subject to the obligation of non-competition, imposed by
article 108, for the duration of the lease of the enterprise.
2. The previous paragraph can be set aside by an express clause, without
prejudice to paragraph 6 of article 108.
(Breach of obligation of non-competition)
Article 109 shall apply, with the necessary adaptations, to the breach of the
obligation of non-competition by the landlord of a commercial enterprise.
(Immediate maturity of credits)
1. If the enterprise is leased, the creditors of the landlord can claim the
immediate payment of the credits relating to the running of the enterprise, if
they demonstrate that the lease of the enterprise is likely to create a risk to
their payment.
2. Judicial proceedings demanding the immediate maturity of the credits must
be initiated within three months from the publication mentioned in paragraph 2
of article 103.
(Joint and several liability of landlord)
1. A landlord is jointly and severally liable with the tenant for the debts
contracted in the running of the enterprise up to 30 days after the fulfillment
of paragraph 2 of article 103.
2. If the landlord is made liable towards third parties for the debts
mentioned in the previous paragraph, the landlord shall have a right of return
against the tenant.
(Liability of judicial administrator)
The previous article does not apply to a contract of lease of an enterprise
concluded by a judicial administrator, provided that paragraph 2 of article 103
has been complied with.
(Transfer of leased enterprise)
Except if there is agreement to the contrary, the tenant cannot, without
authorization of the landlord, sublet the enterprise or transfer his contractual
position or, in any other form, allow the total or partial enjoyment of the
enterprise by a third party.
(Succession in lease contract of enterprise)
1. The acquirer of the right on the basis of which the contract of lease of
an enterprise was concluded succeeds in the rights and obligations of the
landlord, without prejudice to the rules on registration.
2. The previous paragraph applies to the acquirer of an enterprise in a
judicial sale.
(Termination of lease of enterprise)
The termination of the lease of an enterprise causes the immediate maturity
of the debts contracted by the tenant in its running.
[As amended by Law no. 6/2000, of April 27]
(Publicity of termination of lease of an enterprise)
The termination of the lease of an enterprise is subject to registration and
shall be announced by adequate means, namely through newspaper publication.
[As amended by Law no. 6/2000, of April 27]
USUFRUCT OF ENTERPRISE
(Creation of usufruct over an enterprise)
The owner of a commercial enterprise can create a usufruct over the
enterprise in favor of a third party.
(Subsidiary provisions)
Without prejudice to special provisions, the provisions of the Civil Code on
usufruct shall apply, with the necessary adaptations, to all matters not
especially regulated in this Chapter.
(Obligations of usufructuary)
1. The usufructuary is obliged to exercise the enterprise under the firm of
the holder of the underlying ownership right [proprietário de raiz].
2. Paragraph 1 of article 117 is applicable to the usufructuary, with the
necessary adaptations.
3. If the usufructuary breaches the previous paragraph or arbitrarily ceases
operation of the enterprise, paragraph 2 of article 138 shall apply, with the
necessary adaptations.
(Powers of usufructuary)
A usufructuary enjoys the technical and economic discretion inherent to the
exercise of the type of commercial enterprise at issue.
(Acts of disposal and charges over goods of the enterprise)
1. A usufructuary can create charges, transfer and replace the goods of the
commercial enterprise if such acts are necessary or convenient to the
conservation of the efficiency of the organization.
2. The holder of the underlying ownership right has always the possibility to
judicially contest the practice of the acts mentioned in the previous paragraph.
3. If the acts mentioned in paragraph 1 are practiced in breach of the
criteria stated therein, the owner of the underlying ownership right can request
the application of paragraph 2 of article 138.
(Prohibition of competition)
1. While a usufruct lasts, the usufructuary cannot, without assent of the
holder of the underlying ownership right, by himself, through or for the account
of a third party, run an enterprise identical to the one that is object of the
usufruct.
2. It is understood that the assent mentioned in the previous paragraph
exists if, at the date of the creation of the usufruct, the usufructuary, with
knowledge of the holder of the underlying ownership right, was already running
an identical commercial enterprise.
3. Breach of paragraph 1 renders the usufructuary liable for damage caused,
without prejudice to the right of the holder of the underlying ownership right
to demand the extinction of the usufruct.
(Bail)
1. A usufructuary is obliged to post bail.
2. If a usufructuary does not post such bail, the holder of the underlying
ownership right has the right to demand that the commercial enterprise be leased
or that its running be entrusted to an administrator, the rent or the profits
being for the usufructuary.
(Obligation of non-competition)
1. A holder of the underlying ownership right is subject to the obligation of
non-competition in accordance with article 108.
2. The previous paragraph can be set aside by express clause, without
prejudice to paragraph 6 of article 108.
(Breach of obligation of non-competition)
Article 109 shall apply to breach of the obligation of non-competition, with
the necessary adaptations.
(Liquidation of inventory balance)
Any negative difference between the initial inventory and the inventory upon
termination of the usufruct shall be liquidated, as money, on the basis of the
market value at the time of the termination of the usufruct.
(Compensation of usufructuary for the increase of value of enterprise)
A usufructuary has a right to compensation, calculated according to equity,
if, by his action, the value of the enterprise has substantially increased.
(Publicity of termination of usufruct)
The termination of a usufruct of an enterprise is subject to registration and
shall be announced by adequate means, namely through newspaper publication.
[As amended by Law no. 6/2000, of April 27]
PLEDGE OF ENTERPRISE
(Pledge of enterprise)
1. A commercial enterprise, or one of its branches, can be object of a
pledge.
2. The pledge of an enterprise produces effect irrespective of delivery to
the creditor.
3. A commercial enterprise can be object of more than one pledge.
(Effect of pledge of an enterprise)
The creation of a pledge over a commercial enterprise only produces effect,
even between the parties, after registration in the competent office.
(Minimum content)
A document creating a pledge over an enterprise shall mention, under penalty
of nullity, the following elements:
a) identity of the entrepreneur and the creditor;
b) identity of the enterprise or branch over which it is made;
c) amount of the debt or elements that allow its determination;
d) place and date of payment.
(Scope of pledge of an enterprise)
1. Without prejudice to the following paragraphs, a pledge of a commercial
enterprise includes all goods, tangible or intangible, that compose it at the
moment of its creation, whether they are mentioned or not in the accounting
records of the entrepreneur; in the latter case, it is up to the creditor to
prove that a certain good belongs to the enterprise for the purpose of inclusion
in the guarantee.
2. For the pledge of a commercial enterprise to produce effect over goods
subject to registration, which are put to the use of such enterprise, it has to
be entered in the register of each one of such goods.
3. The pledge also covers the goods that are later included in the
enterprise, from the moment of such inclusion; the goods that, in accordance
with the rules of a systematic and ordered management, are transferred by the
debtor and withdrawn from the enterprise before the creditor takes judicial
action to exercise his right of pledge, are released from the pledge.
4. The withdrawal of any goods that are part of the enterprise, in conditions
other than those mentioned in the previous paragraph, cannot be invoked against
good faith third party buyers, but it causes the pledger to incur the liability
applicable to fiduciary depositaries.
(Duty to manage enterprise)
1. Once a pledge over an enterprise is created, the entrepreneur shall
exercise it in a manner so that the value of the guarantee does not suffer
reduction.
2. If a reduction of the value of the guarantee such as to put at risk the
right of the pledge creditor arises from the running of the enterprise, the
pledge creditor can demand, in accordance with civil law, the reinforcement of
the guarantee or, if this is not possible, the passing of the management of the
enterprise to a third party administrator, in accordance with paragraph 2 of
article 138.
3. If the management of the enterprise is passed to a third party, the
profits arising from running it shall be used in payment of the debts secured by
the pledge of such enterprise.
4. If the management of the pledged enterprise is passed to a third party, in
accordance with paragraph 2, the debtor, if he does not have other sources of
income, can demand the allocation of an amount for the satisfaction of his
needs.
(Removal of pledged enterprise)
A debtor must inform the pledge creditors of the enterprise, with 15 days
advance, of his intention to move the enterprise to another place within the
Territory, under penalty of immediate maturity of the respective credits.
(Extinction of lease)
1. Having received communication of the creation of the pledge of an
enterprise, a landlord who intends to terminate the lease of the building where
the pledged enterprise is located shall inform the registered pledge creditors;
both debtor and creditor can effect the communication mentioned in this
paragraph.
2. In case of breach of the previous paragraph, the landlord is obliged to
compensate the said creditors for the damage caused.
(Effects of pledge of enterprise)
1. The pledge of an enterprise grants to the creditor the right to the
payment of his credit, as well as the interest, if any, for the value of the
enterprise with preference over other creditors who do not enjoy a special
privilege.
2. The concurrence of pledges over an enterprise is decided on the basis of
priority in registration.
3. The pledge of an enterprise does not prejudice the real guarantees that
charge the goods which compose such enterprise, existing at the date of its
creation; however, real guarantees created over the goods of the enterprise
after the creation of the pledge over the enterprise do not produce effects in
relation to the pledge creditor, and subject the debtor to the liability
applicable to fiduciary depositaries.
(Judicial sale of pledged enterprise)
1. A pledge creditor, if his credit is not paid, has the right to demand the
judicial sale of the enterprise.
2. The judicial sale shall be organized in a manner so that the enterprise is
not destroyed.
3. If the sale of the enterprise as a whole is not possible, a sale of
autonomous units shall be arranged, and only if this cannot be done will it be
possible to liquidate the enterprise; in the latter case, the pledge creditor
shall hold a mortgage or pledge right over each of the goods that compose the
enterprise at that moment, depending upon the nature of the respective good.
REGULATION OF COMPETITION BETWEEN ENTREPRENEURS
COMPETITION BETWEEN ENTREPRENEURS IN GENERAL
(Legal limits)
1. Competition between entrepreneurs shall take place in a manner that does
not harm the interests of the economy of the Territory, and within the limits
established by the law.
2. All agreements or practices that have the object or effect of preventing,
falsifying or restricting competition are forbidden, without prejudice to
special provisions.
(Contractual limits)
1. An agreement restricting competition between entrepreneurs shall, under
penalty of nullity, respect the limits indicated in the previous article and be
made in writing.
2. For the agreement to be valid, it must be limited to a certain zone or to
a certain activity.
3. If the duration of the agreement was not set, or was set for a longer
period, it shall be valid for five years only.
(Obligation to contract)
Whoever exercises an enterprise in conditions of legal monopoly is obliged to
contract with whoever requires the performances which constitute the object of
the enterprise, observing the principle of equality of treatment.
UNFAIR COMPETITION
(Objective scope)
1. The conducts mentioned in this Chapter are considered unfair if they are
practiced in the market with the purpose of competition.
2. It is presumed that the act is practiced with the purpose of competition
if, by the circumstances in which it takes place, it is objectively adequate to
promote or to ensure the distribution in the market of the products or services
of the party or of a third party.
(Subjective scope)
1. The norms on unfair competition apply to entrepreneurs and to whoever
participates in the market.
2. The application of the rules on unfair competition is independent of the
fact that the subjects act in the same branch of activity.
(General clause)
Unfair competition is any act of competition that objectively reveals itself
to be in breach of the norms and honest usage of economic activity.
(Acts of confusion)
1. An act is considered as unfair if it is adequate to create confusion with
the enterprise, the products, the services or the credit of competitors.
2. The risk of association by consumers regarding the origin of a product or
service is sufficient basis to consider a practice unfair.
(Misleading acts)
The use or broadcast of incorrect or false indications, as well as the
omission of real ones, as well as any act which, by the circumstances in which
it takes place, has the potential to induce in error the persons it reaches, or
to whom it is addressed, regarding the nature, aptitudes, qualities and
quantities of the products or services and, in general, the advantages really
offered, is considered unfair.
(Offers)
1. The delivery of offers with advertising purposes, and analogous commercial
practices, are considered unfair if, by the circumstances in which they take
place, the consumer is put in a situation of having to contract the main
performance.
2. The offer of any type of advantage or premium for the case of acquiring
the main performance is considered unfair if it induces or can induce the
consumer in error concerning the level of prices of other products or services
of the same entrepreneur, or if it renders excessively difficult the assessment
of the effective value of the offer or its comparison with alternative offers.
(Negative statements)
1. The making or broadcast of statements on the enterprise, products,
services or commercial relations of competitors, which are apt to diminish their
credit in the market, is considered unfair except if they are exact, true and
pertinent.
2. Statements on the nationality, the religious or ideological beliefs, the
private life or any other exclusively personal circumstances of any person are
not considered pertinent.
(Acts of comparison)
1. The public comparison of one or another person's enterprise, products or
services with those of a competitor is considered unfair if it relates to
realities that are not analogous, relevant or ascertainable.
2. The comparison shall also be considered unfair if it is made in the terms
indicated in articles 160 and 162.
(Acts of imitation)
1. Imitation of the products, services or entrepreneurial initiatives of
other persons is free, unless they are protected by an exclusive right
recognized by the law.
2. Imitation of the products or services of a third party is considered
unfair if it is adequate to create an association on the part of consumers in
relation to the product or service, or if it makes it possible to unduly take
advantage of the reputation or efforts of other persons.
3. The inevitability of the risk of association or of exploitation of the reputation of
other persons excludes the unfairness of the respective practice.
4. Without prejudice to the previous paragraph, the systematic imitation of
the products, services and entrepreneurial initiatives of a competitor is
considered unlawful if the said strategy is directly aimed at hindering or
obstructing his affirmation in the market and exceeds what, according to the
circumstances, may be considered a natural response from the market.
(Exploitation of other persons' reputation)
Improper exploitation of the entrepreneurial reputation of another person, to
one's own benefit, or to a third party's, is considered unfair.
(Breach of secrets)
1. The spreading or exploitation, without permission from the holder, of
industrial secrets or any other entrepreneurial secrets that were either
accessed legitimately, but with a duty of confidentiality, or not legitimately,
namely as a consequence of any of the conducts mentioned in the following
article, is considered unfair.
2. For the purpose of this article, all and any technical or commercial
information that has a practical use and provides economic benefits to the
holder, which is not public knowledge, and in relation to which the holder took
appropriate security measures to guarantee its respective confidentiality, is
considered an entrepreneurial secret.
(Promotion and exploitation of contractual breaches)
1. The instigation of employees, suppliers, clients and other obliged parties
to the breach of contractual obligations that they have undertaken towards
competitors, is considered unfair.
2. The promotion of the regular termination of a contract or the exploitation
of another person's contractual breach, if known, to own or to a third party's
benefit, are considered unfair if they have as object the diffusion or
exploitation of an enterprise secret, or take place with circumstances such as
deceit, the intention to eliminate a competitor from the market, or analogous
ones.
(Exploitation of dependence)
The undue exploitation by an entrepreneur of a situation of dependence, with
economic repercussions, in which entrepreneurs who are his clients or suppliers
may find themselves, and who do not have an equivalent alternative for the
exercise of their activity, is considered unfair.
(Sales at a loss)
Sales effected below the cost or acquisition price are considered unfair, if
they are part of a strategy directed at the elimination of a competitor or group
of competitors from the market.
(Judicial action for unfair competition)
Judicial action for unfair competition shall be initiated within one year
from the date when the injured party had or could have had knowledge of the
person who practiced the facts that provide its basis, but not more than three
years after their occurrence.
(Sanctions)
A judicial decision declaring the existence of acts of unfair competition
shall determine the prohibition of the continuation of the said practice, and
shall indicate the appropriate means to eliminate the respective effects.
(Compensation for damage)
1. If acts of unfair competition are practiced intentionally or with fault,
the tortfeasor is obliged to compensate the damage caused.
2. In the case mentioned in the previous paragraph, publication of the
judicial decision can be ordered.
3. If the existence of acts of unfair competition is proven, fault is
presumed.
(Legitimacy of entities representing of interested parties)
If acts of unfair competition harm the interests of a category of interested
parties, the judicial action for unfair competition can also be initiated by
entities representing the said category.
EXERCISE OF A COLLECTIVE ENTERPRISE AND CO-OPERATION IN THE EXERCISE OF AN
ENTERPRISE
COMMERCIAL COMPANIES
GENERAL PART
GENERAL PROVISIONS
(Types of commercial companies)
1. General partnerships [sociedades em nome colectivo], limited
partnerships [sociedades em comandita], private companies [sociedades por
quotas] and public companies [sociedades anónimas] are deemed to be commercial
companies, irrespective of their object.
2. Companies having as object the exercise of a commercial enterprise can
only be created in accordance with one of the types mentioned in the previous
paragraph.
(Territorial scope)
1. Companies having their main administration in the Territory are subject to
the provisions of this Code.
2. Companies having their registered office in the Territory cannot invoke
against third parties the fact that they do not have their main administration
here in order to avoid the application of the provisions of this Code.
(Personality)
Commercial companies gain legal personality with the registration of their
act of incorporation.
(Capacity)
1. The capacity of commercial companies comprises the rights and
obligations necessary, useful or convenient to the achievement of their aims,
with the exceptions mentioned in the law and those arising from the nature of
collective persons.
2. Gratuitous acts that may be considered usual, in accordance with the
circumstances of the season and the conditions of the commercial company itself,
are not regarded as being contrary to the aim of the company.
3. Companies cannot provide personal or real guarantees for obligations of
other persons, except if there is an own interest of the company, declared and
reasoned in writing by the organ of administration.
(Companies with permanent activity in the Territory)
1. Companies which exercise permanent activity in the Territory, even without
having their registered office or main administration in the Territory, are
subject to the legal provisions on registration.
2. The companies mentioned in the previous paragraph must appoint a
representative with permanent residence in Macao, set aside capital for its
activity in the Territory, and register the respective resolutions.
3. The representative in Macao shall always have the power to receive any
communications, citations and notifications that may be addressed to the
company.
4. A company that does not comply with paragraphs 1 and 2 is nevertheless
bound by the acts practiced in its name in Macao, and the persons who have acted,
as well as the administrators of the company, are also liable for such acts.
5. The court, upon request of the Public Ministry or of any interested party,
shall order the termination of the activity and the liquidation of the assets in
Macao of companies that do not comply with paragraphs 1 and 2; the court can
grant them a time limit of no more than 30 days to regularize their situation.
ACT OF INCORPORATION
FORM AND CONTENT OF ACT OF INCORPORATION
(Form and minimum content of the act of incorporation)
1. The creation of a company shall be done by means of a written document,
with certification of the signatures of the shareholders, unless another form is
required by the nature of the goods with which the shareholders contribute to
the company.
2. A copy of the act of incorporation shall be filed with a notary.
3. The act of incorporation must mention:
a) the date of its conclusion;
b) the identity of the shareholders and that of their representatives in such
act;
c) the declaration of the shareholders' intention to create a company of one
of the types mentioned by the law;
d) the capital subscribed by each shareholder;
e) the articles of association that shall regulate the functioning of the
company;
f) the appointment of the administrators and, if they exist, the single
supervisor or the members of the supervisory board, and the company secretary;
g) if made by means of a private document, a declaration issued by a lawyer,
stating that, having followed all the process of incorporation, he verified the
absence of any irregularities in it.
4. The articles of association must mention:
a) the type and the firm of the company;
b) the object of the company;
c) the registered office of the company;
d) the company capital, with indication of the method and the time limit of
its payment;
e) the composition of the administration and, in cases in which it should
exist, that of the supervision of the company.
5. The act of incorporation shall be signed by a number of shareholders equal
at least to the minimum legally required for each type of company.
6. The act of incorporation shall be drafted in one of the official
languages.
[As amended by Law no. 6/2000, of April 27]
(Object)
1. The object of a company shall be indicated in a manner that conveys the
activities that the company intends to carry out and which constitute it.
2. In mentioning the object of the company, it is forbidden to use
expressions that may induce third parties to believe that the company operates
activities that it cannot conduct, namely because such activities can only be
exercised by companies regulated under special rules or is dependent upon
administrative authorization.
(Registered office)
1. The registered office of a company shall be established in a determined
place.
2. The administration of the company can freely move the registered office
within the Territory.
3. The registered office does not prevent the stipulation of a special
domicile for certain transactions.
(Expression of capital)
The amount of the company capital shall always be expressed in patacas.
(Duration)
1. If no duration was stated in the articles of association, the duration of
a company is for an undetermined period of time.
2. After the expiry of the duration stated in the articles of association,
its extension can only be agreed by unanimity, except if there is a legal
provision to the contrary.
(Special rights)
1. Special rights of any shareholder can only be created by means of a
stipulation in the articles of association.
2. Except if there is an express provision to the contrary in the articles of
association, special rights cannot be suppressed or modified without the
agreement of the respective holder.
(Agreements outside the company)
1. Agreements outside a company, concluded between all or some shareholders,
by which, in such capacity, they undertake to perform a conduct not forbidden by
the law, are effective between the intervening parties; however, the validity of
the acts of the company or of acts of the shareholders towards the company
cannot be contested on the basis of such agreements.
2. The agreements mentioned in the previous paragraph can touch upon the
exercise of voting rights, but not upon the conduct of persons intervening, or
of other persons, in the exercise of functions of administration or supervision.
3. Agreements according to which a shareholder undertakes to:
a) always vote in accordance with the instructions of the company or of one
of its organs;
b) always vote for the approval of the proposals made by these;
c) exercise or abstain from exercising the right to vote in return for
special advantages,
shall be void.
REGISTRATION OF ACT OF INCORPORATION
(Certification of payment of company capital)
[Revoked by Law no. 6/2000, of April 27]
(Time limit and legitimacy to apply for registration)
1. The registration of a company shall be applied for within 15 days from the
date of the act of incorporation.
2. The members of the organ of administration and the company secretary, if
there is one, have the duty to apply for registration.
3. Any shareholder has legitimacy to apply for registration.
4. The Public Ministry shall promote the liquidation of any non-registered
companies that have been in activity for more than three months.
(Effect of acts prior to registration)
1. With registration, a company undertakes the obligation to refund the
registration expenses, taxes and fees inherent to the process of incorporation,
to the person who has paid these.
2. By an act of the administration, which shall be communicated to the
counterpart within 30 days from the date of registration, the company can decide
to take up all other expenses arising from the process of incorporation prior to
registration, including payment of fees for services rendered.
3. As a result of registration, a company assumes the rights and obligations
arising from acts earlier practiced in its name, provided that the time limit
mentioned in paragraph 1 of the previous article is not exceeded and that such
acts were practiced by the persons empowered to bind the company subsequent to
its registration.
4. The assumption by the company of the rights and obligations mentioned in
the previous paragraphs releases from all responsibility the persons who would
be personally liable for the acts from which such rights and obligations arise.
(Relations between the shareholders prior to registration)
1. Relations between the shareholders prior to registration are regulated by
the provisions of the articles of association and by the rules applicable to the
type of company at issue, with the necessary adaptations, and with the exception
of those that presuppose registration.
2. Before registration, the inter vivos transfer of company parts and the
amendment of the articles of association always require unanimous agreement of
the shareholders.
(Relations with third parties prior to registration)
1. Without prejudice to article 188, if the activity of the company is
started before its registration, those who act in representation of the company,
as well as the shareholders who authorized them to act, shall be personally
liable for the acts practiced.
2. The liability mentioned in the previous paragraph is joint and several and
unlimited; it does not depend upon the previous exhaustion of assets pertaining
to the activity of the company.
INVALIDITY, RESPONSIBILITY, SUSPENSION AND SUPERVISION
(Invalidity of act of incorporation)
1. The general rules on legal transactions [negócio jurídico] apply to the
act of incorporation of a company, with the modifications mentioned in the
following paragraphs.
2. If a company is already registered or has already started its activity, it
enters liquidation as an effect of a declaration of nullity or an annulment of
the act of incorporation; acts agreed with good faith third parties are not
affected.
3. After the registration of a company, the declaration of nullity or the
annulment of only a part of the act of incorporation, or only in relation to
some of the parties, does not cause the start of its liquidation, except if the
act of incorporation could not have been concluded without the part declared
void or voided.
4. Nullity resulting from breach of provisions on the minimum content of the
articles of association must be corrected by a resolution of the shareholders,
within 30 days from knowledge of the defect.
5. The nullity mentioned in the previous paragraph can be corrected by the
court, upon request of any interested party, if the shareholders do not execute
it.
(Liability for incorporation of company)
1. The administrators and the company secretary, as well as the lawyer who
issue the statement according to which, having examined the whole process of
incorporation, they verify the absence of any irregularity in it, are jointly
and severally liable towards the company for its falsehood, inaccuracy or
deficiency, without prejudice to any criminal liability that may arise.
2. Between liable persons, rights of return exist to the extent of their
respective fault and the resulting consequences; the fault of the responsible
persons is presumed to be equal.
3. However, persons mentioned in paragraph 1 who did not know of the
falsehood, inaccuracy or deficiency of the declaration and, acting with the
diligence of a systematic and organized manager, did not have to know it, are
not liable.
(Suspension of activity)
1. After the registration of a company, the shareholders can decide, by
unanimity, to suspend its activity for an exactly determined period.
2. The shareholders and all others who might act in the name of the company
are personally, jointly and severally, and without limit, liable for the acts
practiced after the registration of the suspension and while it lasts,
irrespective of the previous exhaustion of assets pertaining to the activity of
the company.
3. The suspension of activity shall have a maximum duration of three years,
renewable only once for an equal period; the resolution on restarting of the
activity, or on the renewal of the suspension, shall be passed by the
shareholders before the expiry of the period then underway, under penalty of
dissolution of the company.
4. The suspension does not affect the need to fill the organs of the company,
nor the need to submit a balance sheet for the approval of the shareholders at
the end of each accounting period, neither the possibility for the shareholders to decide
at any time to restart the activity.
RELATIONS BETWEEN SHAREHOLDERS AND THE COMPANY
RIGHTS AND OBLIGATIONS OF SHAREHOLDERS IN GENERAL
(Right to equality of treatment)
The relevant situations being identical, all shareholders shall be treated
equally by the company.
(Rights of shareholders)
1. In accordance with the terms, and with the limitations, mentioned in the
law, and without prejudice to other rights specially recognized, every
shareholder has the right to:
a) receive a share of the profits;
b) elect the organs of administration and supervision, receive accounts from
them and initiate liability proceedings;
c) obtain information on the activity of the company;
d) participate in company resolutions.
2. Any stipulation according to which a shareholder shall receive a fixed
remuneration from his capital or industry is forbidden.
3. Any stipulation granting to any shareholder a special right to obtain
information on the activity of the company is also forbidden.
(Obligations of shareholders)
1. Every shareholder is obliged:
a) to contribute to the company with capital or, in the types of companies in
which it is expressly allowed, with industry;
b) to share in losses, with the exception of the provisions on industry
shareholders.
2. The capital must consist of any goods susceptible to judicial seizure
[penhora] and the industry shall consist in any services.
RIGHT TO PROFITS
(Participation in profits and losses)
1. Except if there is a provision of the law or of the articles of
association to the contrary, the shareholders share the profits and the losses
of the company in accordance with the proportion of the nominal value of their
respective capital participations.
2. Any provision depriving a shareholder from sharing in the profits of the
company, or exempting him from responsibility in its losses, shall be void,
except for the provisions on industry shareholders; the nullity of the clause
determines the application of paragraph 1.
(Profit and limits to its distribution)
1. Except if there is a legal provision allowing it, it is not possible to
distribute any goods of the company to the shareholders, except as profits.
2. A profit of the company is the value arising from the accounts of the
accounting period, calculated in accordance with the legal rules on the preparation and
approval of such accounts, which exceeds the sum of the capital of the company
plus the amounts already set aside or to be set aside as reserves in that
accounting period and that the law or the articles of association do not allow to
distribute to the shareholders.
3. If there are losses from the previous year, the profit of the accounting
period
cannot be distributed without first covering these, and then forming or
replenishing the reserves that are compulsory in accordance with the law or with
the articles of association.
(Resolution on distribution of profits)
1. No distribution of profits can be made without a prior resolution of the
shareholders to that effect.
2. The resolution shall discriminate, among the amounts to be distributed,
between the profits of the accounting period and the free reserves.
3. The organ of administration has the duty of not executing any resolution
of distribution of profits whenever such resolution or its execution, given the
timing of the latter, is in breach of the previous article.
4. In case of non-execution of the resolution in accordance with the previous
paragraph, the organ of administration shall communicate to the supervisory
board or to the single supervisor, if they exist, the reasons that justify it,
and shall call a general meeting to discuss and decide on the situation.
(Return of goods unduly received)
1. The shareholders shall return to the company whatever they have received from it
as profits in breach of the law, except if they did not know the irregularity
and, taking into account the circumstances, did not have an obligation to know
of it.
2. The creditors of the company can initiate proceedings for the
reimbursement to the company of the amounts mentioned in the previous paragraph,
provided that the non-reimbursement significantly affects the guarantee of their
credits.
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