COMMERCIAL CODE
EXERCISE OF COMMERCIAL ENTERPRISE IN GENERAL
COMMERCIAL ENTREPRENEURS, COMMERCIAL ENTERPRISES AND ACTS OF COMMERCE
GENERAL PROVISIONS
(Commercial entrepreneurs)
Commercial entrepreneurs are:
a) individuals and collective persons which, in their own name, themselves or
through third parties, exercise a commercial enterprise;
b) commercial companies.
(Commercial enterprise)
1. A commercial enterprise is any organization of productive factors for the
exercise of an economic activity aimed at production for systematic and
lucrative exchange, namely:
a) industrial activity for the production of goods or services;
b) activity of intermediation in the circulation of goods;
c) transport activity;
d) banking and insurance activity;
e) activities auxiliary to the above mentioned ones.
2. The organization of factors of production for the exercise of an economic
activity which is not separable from the person exercising it is not considered
a commercial enterprise.
(Acts of commerce)
1. The following are considered acts of commerce:
a) acts especially regulated in the law as a result of the special needs of
commercial enterprises, namely those mentioned in this Code, and analogous acts;
b) acts practiced in the exercise of a commercial enterprise.
2. The acts practiced by a commercial entrepreneur are considered as being in
the exercise of the respective enterprise, if from such acts or from the
circumstances surrounding their practice the opposite does not emerge.
(Subsidiary law)
Cases not foreseen in this Code are regulated by the norms of this law
applicable to analogous cases and, in their absence, by those norms of the Civil
Code which do not contradict the principles of commercial law.
COMMERCIAL CAPACITY
(Who can be commercial entrepreneur)
A commercial entrepreneur can be any individual, resident or non-resident, or
collective person, with or without registered office in the Territory, endowed
with civil capacity, without prejudice to special provisions.
(Prohibition of exercise of commercial enterprise)
A person lacking capacity cannot exercise a commercial enterprise by
himself, even if only with goods which he is free to dispose of.
(Commercial entrepreneur lacking legal capacity)
If, in accordance with civil law, a legal representative obtains judicial permission to acquire
a commercial enterprise for a person lacking legal capacity, or to continue running
an enterprise that he has acquired by succession or
donation, the person lacking legal capacity is considered a commercial
entrepreneur.
(Exercise of commercial enterprise of a person lacking legal capacity)
1. In the case mentioned in the previous article, if the person lacking
legal capacity is a minor or interdicted, the exercise of his commercial
enterprise, in the absence of an especially qualified person appointed by the
court, shall be conducted by the legal representative.
2. If it is a person lacking legal ability [inabilitado], the exercise of
his commercial enterprise, in the absence of specific regulation by the court,
shall be conducted by himself; regarding the acts which may affect the existence
or consistency of the enterprise, he shall be assisted by a curator.
IMPEDIMENTS AND INCOMPATIBILITIES FOR EXERCISING OF A COMMERCIAL ENTERPRISE
(Who cannot be a commercial entrepreneur)
Commercial entrepreneurs cannot be:
a) collective persons which do not have material interests as their object;
b) those who are legally forbidden from exercising a profession connected
to the exercise of a commercial enterprise.
(Capacity of the Territory and the municipality)
1. The Territory, when exercising a commercial enterprise, does not acquire
the status of commercial entrepreneur; however, regarding such exercise, it is
subject to the provisions of this Code.
2. The previous paragraph applies to the entities mentioned in subparagraph
a) of the previous article.
LEGITIMACY OF MARRIED COMMERCIAL ENTREPRENEUR
(Powers of commercial entrepreneur)
A commercial entrepreneur who is married in a regime of conjunction of assets
does not require the assent of the spouse to:
a) in the normal course of his activity, transfer or create charges over
goods that compose the commercial enterprise;
b) transfer or create charges over goods which, irrespective of their nature,
are the result of the activity of the commercial enterprise.
OBLIGATIONS OF COMMERCIAL ENTREPRENEURS
(Special obligations of commercial entrepreneurs)
A commercial entrepreneur is especially obliged to:
a) adopt a firm;
b) have commercial bookkeeping;
c) provide for the entry in the commercial register of acts subject to
registration;
d) render accounts.
(Small entrepreneurs)
1. Small entrepreneurs are not subject to the obligations mentioned in
subparagraphs a) to c) of the previous article, without prejudice to the
following paragraph.
2. By portaria of the Governor, small entrepreneurs may become subject,
wholly or partly, to the observance of any of the obligations mentioned in the
previous paragraph.
3. The attribution of the status of small entrepreneur shall be decided on
the basis of criteria set by portaria of the Governor.
FIRM
GENERAL PROVISIONS
(Obligation to have firm)
1. The commercial entrepreneur is named, in the exercise of his enterprise,
under a commercial name, which is his firm, and he must sign the documents
related to the enterprise with it.
2. The commercial entrepreneur can sue and be sued under his firm.
(Principle of truth)
1. The elements used in the composition of the firm must be truthful and not
induce error regarding the identity, nature, dimension or activities of its
holder.
2. It is not permitted to use in the composition of the firm:
a) characteristic elements, even if made of fantasy designations, acronyms or
compositions, which suggest activities different from those that the holder
exercises or proposes to exercise;
b) expressions that may induce error regarding the legal nature of the
entrepreneur, namely the use, by individuals, of designations that suggest the
existence of a collective person, or, by collective persons for profit, of
expressions normally used to designate public entities or non-profit
associations.
(Principle of novelty)
1. The firm must be distinct and not susceptible to be confused or mistaken
with any other already registered.
2. In assessing the distinction and the possibility of confusion or mistake,
the type of entrepreneur, his domicile or registered office and, additionally,
the affinity or proximity of the activities exercised or to be exercised shall
be considered.
3. Expressions in normal use and place names, as well as any indication of
geographical origin, are not considered of exclusive use.
4. The incorporation of registered distinctive signs in the firm is subject
to evidence of their legitimate use.
5. In the assessment mentioned in paragraph 2, the existence of names of
business premises, signs or trademarks so similar that they may induce error
regarding the holder of such distinctive signs shall also be considered.
(Obligation to use Portuguese and Chinese languages)
1. The firm shall compulsorily be written in one or both of the official
languages; in the latter case, it can also have an English version.
2. If the firm is written in both official languages, and is composed of
expressions that allude to the commercial activity exercised or to be exercised,
there must be a minimum of correspondence between the two versions.
3. The use of words which are not part of the official languages is excepted
from paragraph 1 if such words:
a) are part of the composition of firms already registered;
b) are common expressions without an adequate translation in the official
languages or are of general use;
c) correspond, wholly or partly, to names or firms of shareholders;
d) are trademarks of legitimate use, in accordance with the respective legal
provisions;
e) result from the merging of words or parts of words which belong to
languages allowed in accordance with this article, directly related with the
activities exercised or to be exercised or, further, taken from the other
elements of the firm or from the names of the shareholders;
f) aim at facilitating larger penetration of the market to which the
activities exercised or to be exercised are directed.
(Other requirements)
1. Firms cannot offend public morals and good mores [bons costumes].
2. Firms must not disrespect symbols of the Territory, persons, epochs or
institutions whose name or meaning should be safeguarded on account of
historical, scientific, institutional, cultural or other worthwhile reasons.
3. Firms must not include expressions which correspond to qualities or
excellencies to the detriment of other persons.
(Firms registered outside the Territory)
The admissibility of firms registered outside the Territory is subject to
evidence of such registration in the place of origin and to the absence of
susceptibility to confusion with firms already registered in Macao.
(Exclusive use of firm)
1. The right to the exclusive use of the firm only is created after its
registration by the respective holder in the competent office.
2. The previous paragraph does not prejudice the possibility to void or to
declare void a firm, or its lapse, in accordance with this Code.
(Illegal use of the firm)
The illegal use of a firm grants to the interested parties the right to
demand its prohibition, as well as compensation for resulting damages, without
prejudice to criminal proceedings, if appropriate.
SPECIAL PROVISIONS
(Composition of firm of commercial entrepreneurs)
1. A firm of commercial entrepreneurs can be composed:
a) of their civil name, complete or abbreviated, as necessary for the perfect
identification of their person; it is permitted to add a nickname;
b) of the name or firm of one, some or all of the shareholders or partners;
c) of fantasy designations;
d) of expressions alluding to the commercial activity undertaken or to be
undertaken;
e) by joining elements mentioned in the previous subparagraphs.
2. If the firm of an individual commercial entrepreneur is exclusively
composed in accordance with subparagraph a) of the previous paragraph, and the
firm to be registered and another one already registered are identical, the
entrepreneur who wants to register the new firm, shall, alternatively or jointly:
a) if the firm corresponds to his complete name, use his abbreviated name;
b) if the firm corresponds to his abbreviated name, add or remove one of his
names or surnames;
c) add fantasy designations or an expression alluding to the commercial
activity undertaken or to be undertaken.
(Firm of individual commercial entrepreneur)
The firm of an individual commercial entrepreneur may have the addition
'Empresário Individual' or, if written in Portuguese language, the initials
'E.I.'.
[As amended by Law no. 6/2000, of April 27]
(Firm of general partnerships)
1. The firm of general partnerships shall have the addition 'Sociedade em
Nome Colectivo' or, if written in Portuguese language, the initials 'S.N.C.'.
2. Anyone who, not being a shareholder, allows his name or firm to appear in
the firm of a general partnership shall be jointly liable with the shareholders
for the obligations of the company.
(Firm of limited partnerships)
1. The firm of simple limited partnerships shall have the addition 'Sociedade
em Comandita' or, if written in Portuguese language, the initials 'S.C.'; the
firm of limited partnerships by shares shall have the addition 'Sociedade em
Comandita por Acções' or, if written in Portuguese language, the initials
'S.C.A.'.
2. Anyone who, not being a shareholder with unlimited liability, allows his
name or firm to appear in the firm of a limited partnership shall be jointly
liable with the unlimited liability shareholders for the obligations of the
company.
(Firm of private companies)
The firm of private companies shall have the addition 'Limitada' or, if
written in Portuguese language, the abbreviation 'Lda.'.
(Firm of single shareholder private companies)
The firm of single shareholder private companies shall have the addition
'Sociedade Unipessoal Limitada' or, if written in Portuguese language,
'Sociedade Unipessoal Lda.'.
(Firm of public companies)
The firm of public companies shall have the addition 'Sociedade Anónima' or,
if written in Portuguese language, the initials 'S.A.'.
(Firm of economic interest groupings)
The firm of economic interest groupings shall contain the addition
'Agrupamento de Interesse Económico' or, if written in Portuguese language, the
initials 'A.I.E.'.
(Firm of other collective persons commercial entrepreneurs)
The firm of collective person commercial entrepreneurs other than companies
or economic interest groupings shall have an addition identifying the type of
collective person.
(Transfer of firm)
1. The acquirer of a commercial enterprise, either inter vivos or mortis causa, may continue to run it under the same firm, if allowed to do so, adding
or not a statement indicating that he succeeded in its use.
2. The granting of the permission mentioned in the previous paragraph is a
power of the transferor; in the case of a transfer as a result of death, and if
the deceased has not made determinations, in writing, on the matter, the
permission shall be granted by the majority of the heirs, regardless of whether
it is a transfer to a third party or to an heir.
3. If the firm of a collective person commercial entrepreneur includes the
name or firm of a shareholder or associate, it is not necessary to have his
assent for the transfer of the firm, unless the act of incorporation provides
otherwise.
4. In the case mentioned in the previous paragraph, the shareholder or
associate shall cease to be liable for the obligations contracted in running the
transferred enterprise, from the moment of registration and publication of the
act of transfer.
5. Whoever acquires the right to temporarily run a commercial enterprise that
belongs to another person can use the firm of the owner, regardless of
permission.
6. The transfer of the firm is only possible in conjunction with the
commercial enterprise to which it is connected and is subject to registration.
(Withdrawal or decease of shareholder or associate)
1. The withdrawal or decease of a shareholder or an associate whose name or
firm appears in the firm of a collective person commercial entrepreneur, does
not cause a need to amend it, unless the act of incorporation provides
otherwise.
2. Paragraph 4 of the previous article shall apply to the case regulated in
the previous paragraph.
EXTINCTION OF FIRM
(Void firm)
1. A firm shall be void if its composition breaches articles 15, 17 or 18.
2. A firm can only be declared void by judicial decision.
3. The declaration that a firm is void shall be registered and published.
(Voidable firm)
1. A firm shall be voidable if its composition breaches the rights of third
parties.
2. A firm may be voided by means of judicial proceedings initiated by an
interested party within three years from the date of the granting of its
registration.
3. The right to claim the annulment of a firm registered in bad faith is not
subject to limitation of actions.
4. Paragraph 3 of the previous article shall apply to the annulment of the
firm.
(Lapse of firm)
The right to a firm lapses:
a) by reason of closure and liquidation of the enterprise;
b) by dissolution and liquidation of the collective person;
c) by non-use during three years.
(Declaration of lapse of firm)
1. The lapse of a firm is declared by the competent register upon request of
interested parties.
2. The holder of the registration shall be notified to reply, within one
month, to the request for lapse.
3. After such time limit has expired, the register shall decide, within 15
days.
4. The declaration of lapse can be appealed in court.
5. The declaration of lapse shall be registered ex officio and shall be
published.
(Renunciation of firm)
1. A holder can renounce the firm, provided that he expressly declares this
to the competent register.
2. The declaration of renunciation is made in writing, with the signature of
the holder certified by his presence.
COMMERCIAL BOOKKEEPING
GENERAL PROVISIONS
(Obligation of commercial bookkeeping)
A commercial entrepreneur is obliged to have organized bookkeeping, adequate
to his enterprise, in order to enable chronological knowledge of all his
operations, as well as the periodic preparation of balance sheets and
inventories.
(Compulsory books)
1. A commercial entrepreneur is obliged to keep a book of inventories and
balance sheets, as well as other books, as determined by means of an executive
order.
2. Besides the books mentioned in the previous paragraph, collective person
commercial entrepreneurs shall keep other books for minutes.
3. The books can be made of loose sheets.
4. The loose sheets shall be sequentially numbered and initialed by any duly
authorized member of the management or the administration, or by the secretary,
who shall also prepare the opening and closing statements.
5. Without prejudice to the provisions of the previous paragraphs and to
special provisions, the number and types of books of any commercial
entrepreneur, and the method of their keeping, are entirely a matter for his
discretion.
[As amended by Law no. 6/2000, of April 27]
(Compulsory legalization)
1. Legalization of commercial entrepreneurs' compulsory books is mandatory.
2. Legalization of filled books is allowed by means of mention of this fact
in the opening statement.
3. The legalization of books already filled, as well as of loose sheets,
shall be done within three months from the end of the accounting period.
(Legalization of compulsory books)
1. Legalization of commercial entrepreneurs' books shall be done by any duly
authorized member of the management or the administration, or by the secretary,
or also by a notary or the competent register.
2. Legalization consists in the signature of the opening and closing
statements, as well as in the indication, on the last sheet of each one, of the
number of sheets of the book and, on all sheets of each book, the respective
number and initials.
3. The initialing of the sheets can be done using a signature stamp.
4. In the case of legalization by a notary or competent register, the
signatures and initials mentioned in the previous paragraphs can be done by the
officers competent to sign certificates.
5. Notaries and the competent register shall keep a book of legalizations.
6. By order of the Chief Executive, the legalization of commercial
entrepreneurs' books which are kept in electronic form, in accordance with
paragraphs 3 and 4 of article 46, can be replaced by the adoption of other
procedures that guarantee that it is impossible to modify the information
contained in them.
[As amended by Law no. 6/2000, of April 27]
FORM OF BOOKKEEPING
(Keeping of book of inventories and balance sheets)
The book of inventories and balance sheets shall open with the initial
detailed balance sheet of the enterprise; the balance sheets which by law the
entrepreneur is obliged to keep shall be entered in it.
(Keeping of daily book)
1. The daily book records day to day all operations related to the activity
of the enterprise.
2. Joint notation of the totals of the operations for periods no longer than
one month is valid, provided that their description appears in other books or
auxiliary records, in accordance with the nature of the enterprise concerned.
(Books of minutes of collective person commercial entrepreneurs)
The minutes books or sheets of collective person commercial entrepreneurs
serve to record the minutes of the meetings of shareholders or associates,
administrators and the supervisory organ; each minute shall state, without
prejudice to special provisions:
a) the date on which it took place;
b) the participants' names or a reference to a list of attendance certified
by the chairing committee;
c) the votes issued;
d) the resolutions passed and everything else than can serve to know them and
their justification;
e) the signature by the chairing committee, if there is one or, if there
isn't, by the participants.
(Who can perform bookkeeping)
1. Commercial bookkeeping shall be performed directly by the entrepreneur or
by any other person duly authorized by him.
2. If the commercial entrepreneur does not directly carry out his
bookkeeping, it is presumed that he has granted the authorization mentioned in
the previous paragraph to the third party who prepares it.
(External requirements of bookkeeping)
1. All bookkeeping books shall be written, whatever the procedure used, with
clarity, in chronological order, without blank spaces, interpolations,
amendments or erasures; any errors or omissions in accounting records shall be
corrected as soon as they are detected; if any cancellation is necessary, it
shall be done in a manner so that the cancelled words are legible; it is not
permitted to use abbreviations or symbols whose meaning is not clear with
reference to the law, to regulation or to commercial practice of general
application.
2. Commercial bookkeeping can be prepared in a language other than the
official languages of the Territory, if there is a serious interest in doing so;
value amounts can be denominated in any currency, provided that they are also
denominated in patacas.
3. The books, correspondence and other documentation mentioned in paragraph 1
of article 49 can be kept in electronic form, if this form of commercial
bookkeeping, including the procedures used, complies with the principles of an
ordered accounting.
4. For books and other documentation kept in electronic form to be admissible
it is necessary to ensure that the information stored is accessible during the
period of compulsory conservation mentioned in paragraph 1 of article 49, and
that it can at all times be read or reproduced by means made available by the
entrepreneur.
(Microfilming of commercial bookkeeping)
1. Commercial entrepreneurs can microfilm documents which record their
commercial bookkeeping.
2. Such microfilms replace the originals for all purposes.
3. Microfilming operations shall be executed with the technical care
necessary to guarantee the faithful reproduction of the documents processed.
4. The regulation of the operations mentioned in the previous paragraph shall
be approved by a portaria of the Governor.
(Evidentiary value of microfilm)
Photocopies and enlargements obtained from microfilm have the same
evidentiary value as the originals, either in court or not, provided that they
contain the duly certified signature of the person responsible for microfilming.
(Obligation to keep books, correspondence and documents)
1. Without prejudice to special provisions, a commercial entrepreneur shall
keep the books, correspondence, documentation and other items recording the
exercise of his enterprise, duly ordered, for 10 years from the last entry made
in the books.
2. The termination of the exercise of the enterprise by the entrepreneur does
not relieve him of the duty mentioned in the previous paragraph and, if he has
died, such duty shall fall upon his heirs; in the case of dissolution of a
company, or of another collective person commercial entrepreneur, it is for the
liquidators to fulfill the provisions of the previous paragraph.
(Destruction of documents)
1. Once the time limit mentioned in paragraph 1 of the previous article has
expired, the documents can be destroyed.
2. The destruction of the documents shall be effected in such manner that it
is not possible to later read or reconstitute them.
(Bookkeeping as evidence)
1. Entries made in books for commercial bookkeeping are evidence between
commercial entrepreneurs of facts related to their enterprises, in the following
terms:
a) entries made in books for commercial bookkeeping, even if not properly
arranged, are evidence against the commercial entrepreneur to whom they belong;
however, a person who intends to take advantage of these is obliged to accept
those entries that are not favorable to him;
b) entries made in books for commercial bookkeeping, properly arranged, are
evidence in favor of the entrepreneur to whom they belong, if the counterpart
does not present opposing entries in books arranged in the same manner or
evidence to the contrary;
c) if there is a discrepancy between the entries of the books of both
entrepreneurs, and if the books of one of them are properly arranged but not the
books of the other, the books which are properly arranged shall serve as
evidence, without prejudice to evidence to the contrary.
2. If a commercial entrepreneur has no bookkeeping, despite the obligation to
have it, or refuses to present it, the properly arranged books of the other
entrepreneur shall be accepted as evidence against the former, except if the
absence of books is due to force majeure, and always without prejudice to the
possibility of evidence to the contrary in any entries presented by means of
evidence admissible at law.
(Confidentiality of commercial bookkeeping)
1. Entrepreneurs' commercial bookkeeping is confidential, without prejudice to
the following paragraphs and to special provisions.
2. The showing or general examination of books, correspondence and other
documents of entrepreneurs can only be ordered, ex officio or upon request of a
party, in cases of universal succession, suspension of payments, bankruptcy,
liquidation of a company or other collective person commercial entrepreneurs,
and if the shareholders have a right of direct examination.
3. Besides the cases mentioned in the previous paragraph, it is possible to
order the consultation of commercial bookkeeping, upon request of a party
or ex officio, if the entrepreneur to whom it belongs has an interest or
responsibility in the matter that justifies this showing; the examination shall
be exclusively restricted to those aspects that directly relate to the matter at
issue.
(Execution of examination of bookkeeping)
1. The examination mentioned in the previous article, either general or
specific, shall be done in the enterprise of the entrepreneur, in his presence
or in the presence of a person nominated by him; adequate measures shall be
adopted for the due conservation and safekeeping of the books and documents.
2. In any case, the person upon whose request the examination was ordered can
make use of technical staff in such manner and number as the court may consider
necessary.
ANNUAL ACCOUNTS OR OF ACCOUNTING PERIOD
(Elaboration of annual or accounting period accounts)
1. A commercial entrepreneur is obliged to prepare annual or accounting
period
accounts of his enterprise, within three months from the end of each accounting
period,
which shall comprise the balance sheet, the profit and loss account and the
annex.
2. Annual accounts shall be written with clarity and shall be a faithful
representation of the patrimony, financial situation and results of the
enterprise, in accordance with legal provisions.
3. If the application of legal provisions is not enough to show a faithful
representation of the patrimony, financial situation and results of the
enterprise, additional information necessary to achieve that goal shall be
provided.
4. In exceptional cases, if the application of a legal provision in
accounting matters is incompatible with the faithful representation that the
annual accounts should provide, such provision shall not apply; in such cases,
this lack of application shall be referred to in the annex, with proper
justification, and with an explanation of its impact on the patrimony, financial
situation and results of the enterprise.
(Preparation of balance sheet, profit and loss account and annex)
1. The balance sheet comprises, with the necessary separation, the goods and
rights that constitute the assets of the enterprise and the obligations that
constitute its liabilities, with specification of own funds; the opening balance
sheet of an accounting period shall correspond to the closing balance sheet of the
previous accounting period.
2. The profit and loss account comprises, also with the necessary separation,
the earnings and the costs of the accounting period and, by differentials, the results of
it; it shall distinguish the ordinary results arising from the operation from
those which are not, or from those which arise from circumstances of an
extraordinary nature.
3. The annex completes, expands and explains the information contained in the
balance sheet and profit and loss account; if a legal provision so requires, the
annex shall include a heading on financing, in which the resources obtained in
the accounting period and their different sources shall be specified, as well as the
application or the use of these in fixed assets or current assets.
4. In each of the sections of the balance sheet and profit and loss account
and in the heading on financing shall appear, besides the figures of the
accounting period being closed, those corresponding to the immediately previous
accounting period;
if these figures are not comparable, the amounts carried from the previous
accounting period shall be adapted; in any case, the impossibility to compare, and the
eventual adaptation of the amounts carried, shall be referred to in the annex
and duly commented.
5. The balance sheet and profit and loss account cannot have accounts to
which no entries correspond, except if it was done in the previous accounting
period.
6. Compensation between accounts of assets and liabilities, or between
accounts of profits and losses, is forbidden.
(Structure of balance sheet and profit and loss account)
The structure of the balance sheet and profit and loss account cannot be
modified from one accounting period to another; however, in exceptional cases, this
article may not apply; such fact must be mentioned in the annex, with due
justification.
(Signature of annual or accounting period accounts)
1. The annual or accounting period accounts shall be signed:
a) by the entrepreneur himself, in the case of an individual;
b) by all administrators, in the case of collective person commercial
entrepreneurs.
2. In the case mentioned in paragraph b) of the previous paragraph, if the
signature of any of the administrators is missing, such fact shall be mentioned
in the documents from which it is missing, with an express statement of the
respective cause.
3. The balance sheet and the profit and loss account shall be dated before
the signature of the responsible persons.
(Appraisal of elements of annual accounts)
1. Appraisal of the elements which are part of the various headings of the
annual accounts shall be made in accordance with generally accepted accounting
principles; in particular, the following rules shall be observed:
a) it shall be presumed that the enterprise continues in operation;
b) the criteria of appraisal shall not be modified from one accounting period to
another;
c) a principle of prudence in appraisal shall be followed;
d) the costs and the income affecting a certain accounting period shall be included in
it, irrespective of the date of payment or collection;
e) the elements which are part of the various headings of the assets and
liabilities shall be appraised separately;
f) the elements of the fixed assets and of the current assets shall be
accounted, without prejudice to the following article, by the acquisition price
or the cost of production.
2. The principle mentioned in subparagraph c) of the previous paragraph,
which in case of conflict shall prevail over any other, obliges the indication
in the balance sheet only of profits already gained by the date of its closing,
as well as to take into account the foreseeable risks and the eventual losses
originating in the accounting period or in a previous accounting period, distinguishing
irreversible from reversible or potential ones, even if they only come to be
known between the date of closing of the balance sheet and the date on which it
is formulated, in which case proper information shall be provided in the annex,
and also to account for any devaluations, whether the accounting period finishes with
positive or negative results.
3. In exceptional cases it may be admissible that the principles mentioned in
paragraph 1 shall not be applied; in such cases, the annex shall refer to this
lack of application, explaining it properly, and its impact on the patrimony,
financial situation and results of the enterprise.
(Amortization of fixed assets and current assets)
1. Elements of fixed assets and of current assets, whose use has a limit in
time, shall be regularly amortized during the time of their use; nevertheless,
and even if their use is not limited in time, if the depreciation foreseen for
such goods is long term, corrections in value shall be made to the extent
necessary to attribute to them the lower value that they have by the date of
the closing of the balance sheet.
2. The corrections of value necessary in order to attribute to elements of
the current assets the lower market value or any other lower value that
correspond to them, as a result of special circumstances, at the time of
closing the balance sheet, shall be made.
3. The corrections of value of fixed assets and current assets mentioned in
the previous paragraphs shall appear separately in the balance sheet by means of
the corresponding provisions, except if, the said corrections having an
irreversible nature, they constitute definitive losses.
4. An appraisal at a lower value, in application of the previous paragraphs,
cannot be maintained if the reasons that motivated the corrections of value have
ceased to exist.
5. Exceptionally, tangible immobilizations, as well as raw materials and
consumable goods which are renewed constantly, whose global value is of
secondary importance for the enterprise, can be included in the assets as a
fixed amount and value, provided that their quantity, value and composition do
not vary significantly; in the latter case, the reason for such inclusion shall
be indicated in the annex, as well as the amount that it involves.
6. A commercial enterprise can only appear in the assets of the balance sheet
if it has been acquired against payment.
(Auditing of annual accounts)
1. Without prejudice to other laws that might make it compulsory to have the
annual accounts audited by a person who has the legal capacity of accounting
auditor, and to articles 52 and 53, a commercial entrepreneur is obliged,
whenever ordered to do so by the court, to submit for audit the annual accounts
of his enterprise, upon request of whoever demonstrates a serious interest in
it.
2. In such case, the court shall demand that the petitioner post an adequate
bond to pay for the court fees and for the audit expenses, which shall be
payable by him if no essential defects or irregularities are found in the
revised annual accounts; for this purpose, the auditor shall present to the
court a copy of the information prepared.
REGISTRATION
(Purpose of registration)
The commercial register is intended to make public the legal situation of
entrepreneurs and commercial enterprises, its purpose being the security of
legal commerce.
(Acts subject to registration and publication)
1. Acts related to entrepreneurs and commercial enterprises are subject to
registration and publication in accordance with the law.
2. Acts that must be published in accordance with this Code can be so in any
of the official languages, but if there are interested parties that only express
themselves in the other language they shall have a translation attached.
3. The publication mentioned in the previous paragraph shall be effected in a
Macao newspaper, among those in the Territory with the largest readership, in
Portuguese or Chinese language, depending upon the language used; this paragraph
shall apply to the translation.
4. If the act to publish must be followed by a translation, the publication
of the latter shall take place in a newspaper published in the same week.
RENDERING OF ACCOUNTS
(Obligation to render accounts)
A commercial entrepreneur is obliged to render accounts:
a) in isolated operations, at the end of each one;
b) in operations of continuous execution, at the end of each year.
REPRESENTATION IN THE EXERCISE OF AN ENTERPRISE
MANAGERS
(Engagement of managers)
1. A manager is a person who, under any designation, depending on commercial
usage, is engaged by a commercial entrepreneur for the exercise of the
enterprise.
2. The engagement can be limited to the exercise of a branch or a particular
line of business of the enterprise.
3. If various managers are engaged, they can act separately, except if
otherwise stipulated in the legal transaction of engagement for management.
(Powers of manager)
1. A manager can practice all acts related to the exercise of the enterprise
for which he is engaged, with the exception of the limitations contained in the
management engagement; however, the manager cannot charge or transfer immovable
goods used in the exercise of the enterprise if he is not expressly authorized
to do so.
2. A manager can sue and be sued in representation of the principal in
everything that is related to the acts practiced in the exercise of the
enterprise for which he is engaged.
(Obligations of manager)
In relation to the enterprise or the part of it for which he is engaged, the
manager is obliged, jointly with the entrepreneur, to comply with the provisions
relating to entry in the commercial register of the acts subject to it and to
have commercial bookkeeping.
(Registration of engagement of management)
[Revoked by Law no. 6/2000, of April 27]
(Registration of acts of modification and revocation of the engagement of
management)
[Revoked by Law no. 6/2000, of April 27]
(Signature)
In documents relating to acts practiced in the exercise of the enterprise for
which he is engaged, a manager is obliged to use the firm of the principal and
to write his signature with express mention of the capacity in which he
intervenes.
(Personal liability of manager)
1. A manager is personally liable for acts that he practices representing the
principal if he omits to communicate to the counterpart the capacity in which he
intervenes in the act.
2. Without prejudice to the previous paragraph, third parties can take action
also against the principal for acts practiced by the manager in relation to the
exercise of the enterprise for which the latter is engaged.
(Prohibition of competition by manager)
1. A manager cannot, without express assent from the principal, exercise a
commercial enterprise of the type for which he is engaged, either by himself or
through, or for the account of, a third party.
2. The assent of the principal is presumed if the situations indicated in the
previous paragraph already existed at the time of the engagement and the
principal had knowledge of them.
3. Breach of the prohibition of competition mentioned in the previous
paragraphs renders the manager liable to compensate the principal for the
damages caused.
4. Without prejudice to the previous paragraph, the principal has a right to
take for himself the transactions effected in breach of paragraph 1.
(Application to representatives of entrepreneurs from outside Macao)
The previous provisions apply to those who are engaged to exercise in Macao
the representation of the enterprise of an entrepreneur from outside Macao.
(Revocation of engagement of management)
Both the principal and the manager can at any time terminate the engagement
of management; however, in the absence of just cause or of adequate advance
notice, the counterpart has a right to be compensated for the damage suffered.
(Non-transferability of the position of manager)
A manager cannot have himself replaced by a third party in the exercise of an
enterprise, except with the express agreement of the principal.
(Death or legal incapacity of principal)
Except if there is an agreement to the contrary, the engagement of management
is not extinguished by the death or supervening legal incapacity of the
principal.
(Procurators)
The provisions of articles 67, 68, 71 and 73 to 75 also apply to those who,
not being engaged to exercise an enterprise, have, on the basis of a stable
relation, powers to conclude transactions related to the exercise of such
enterprise on behalf of the principal.
ENTREPRENEUR'S ASSISTANTS
(Powers of assistants)
1. Assistants of an entrepreneur can practice all acts normally comprised in
the type of operations of which they are in charge, with the exception of the
limitations arising from usage.
2. However, they cannot demand the price of merchandise that they have not
sold, nor grant delays of payment or discounts which are not in accordance with
usage, except if they are expressly authorized to do so.
(Powers of derogation of general contractual clauses)
Assistants, even if they are authorized to conclude contracts on behalf of an
entrepreneur, do not have the power to derogate general contractual clauses of
the enterprise without a special written authorization to do so.
(Powers of assistants in relation to transactions concluded)
1. In the case of transactions concluded by them, assistants are authorized
to receive, on behalf of the entrepreneur, declarations related to the execution
of the contract and claims related to non-performance of contracts.
2. They also have competence to request provisional judicial measures in the
interest of the entrepreneur.
(Other powers of assistants)
1. Assistants who are engaged to effect sales at the place of exercise of the
enterprise can demand the price of merchandise sold by them, except if there is
a special cashier for collection.
2. Outside of the premises of the enterprise, they cannot demand the price if
they are not authorized to do so, or if they do not deliver a receipt signed by
the entrepreneur.
LIABILITY FOR THE EXERCISE OF AN ENTERPRISE
(Presumption)
The commercial debts of a commercial entrepreneur are presumed to be
contracted in the exercise of his enterprise.
(Liability for debts contracted in the exercise of an enterprise)
1. The assets that compose the enterprise of an individual commercial
entrepreneur and, in their lack or insufficiency, his private assets, are liable
for such entrepreneur's debts, contracted in the exercise of his enterprise.
2. Before the liquidation of a commercial enterprise, a private creditor can
only execute the assets used in the commercial enterprise in case of lack or
insufficiency of other assets of the entrepreneur.
(Liability for obligations contracted outside Macao)
1. Goods used in the representation of his enterprise in Macao by a
commercial entrepreneur from abroad are only liable for the obligations
contracted abroad after the payment of all obligations contracted in the
exercise of the said enterprise in Macao.
2. A decision of an outside authority that decrees the bankruptcy of a
commercial entrepreneur from abroad shall only apply to the goods mentioned in
the previous paragraph after the fulfillment of the provision therein.
(Liability of spouses' assets for the exercise of a commercial enterprise)
If a commercial entrepreneur is married in a regime of conjunction of assets,
the common assets in the first place, and subsidiarily the own assets of each of
the spouses, shall be liable for any obligations resulting from the exercise of
his enterprise that surpass the goods allocated to its use.
CIVIL LIABILITY OF COMMERCIAL ENTREPRENEUR
(Objective liability of producer commercial entrepreneur)
1. A producer commercial entrepreneur is liable, regardless of fault, for
damage caused to third parties by the defects of products that he puts in
circulation.
2. A producer is the manufacturer of a finished product, of a component part
or of a raw material, and also whoever presents himself as such through the
apposition of his name, trademark or other distinctive sign to the product.
3. The following are also considered as producers:
a) anyone who, in the exercise of his enterprise, imports products for sale,
lease, financial lease or another form of distribution;
b) the distributor of products whose Macao producer or importer is not
identified, except if, after being notified in writing, he communicates to the
injured party the identity of one or the other, or of some preceding
distributor, also in writing.
(Product)
1. Any movable good is considered to be a product, even if incorporated in
another movable or immovable good.
2. Products from the land, from raising livestock, fishing and hunting are
excluded if they have not undergone any transformation.
(Defect)
1. A product is defective if, at the moment of its entry into circulation, it
does not offer the safety that legitimately is to be expected, having in account
all circumstances, namely its presentation, characteristics and the use that
reasonably can be made of it.
2. A product is not considered defective by the simple fact that a more
advanced one has subsequently been put into circulation.
(Exclusion of liability)
A commercial entrepreneur is not liable if he proves:
a) that he did not put the product into circulation;
b) that, having account of the circumstances, it can be reasonably assumed
that the defect did not exist at the moment of entry into circulation;
c) that he did not produce it for sale or any other form of distribution with
an economic objective, nor produced nor distributed it in the exercise of his
enterprise;
d) that the defect is due to the conformity of the product with imperative
norms enacted by public authorities;
e) that the state of scientific and technical knowledge, on the moment in
which he has put the product into circulation, did not allow the detection of
the existence of the defect;
f) that, in the case of a component part, the defect is imputable to the
conception of the product in which it was incorporated, or to the instructions
given by its producer.
(Joint and several liability)
1. If various entrepreneurs are responsible for the damage, their liability
is joint and several.
2. In internal relations, the circumstances shall be taken into account, in
particular the risk created by each liable party, the seriousness of the fault
with which they have eventually acted and their contribution to the damage.
3. In case of doubt, the distribution of responsibility shall be in equal
parts.
(Contribution of injured party and of third party)
1. If negligence on the part of an injured party has contributed to the
damage, the court can, taking into account all circumstances, reduce or exclude
the compensation.
2. Without prejudice to paragraphs 2 and 3 of the previous article, the
liability of the entrepreneur is not reduced if the intervention of a third
party has contributed to the damage.
(Compensatable damage)
Damage resulting from death or personal injury can be compensated, as well as
damage to goods other than the defective product, provided that these are
normally destined to private use or consumption and that the injured party has
mainly given them such destination.
(No derogation)
Liability towards an injured party cannot be excluded or limited; any
stipulations to the contrary are considered not written.
(Limitation of actions)
The right to compensation is barred three years after the date when the
injured party gained or should have gained knowledge of the damage, of the
defect, and of the identity of the entrepreneur.
(Lapse)
The right to compensation lapses 10 years from the date at which the
entrepreneur put into circulation the product that caused the damage, except if
judicial proceedings initiated by the injured party are pending.
COMMERCIAL ENTERPRISE
GENERAL PROVISIONS
(Nature of the right over commercial enterprise)
Besides the rights that grant the possibility to dispose of each of the goods
that compose it, the entrepreneur has an ownership right over the enterprise
itself.
(Means to protect his rights)
Besides the specific protection granted by the law to each of the goods that
compose his enterprise, an entrepreneur also enjoys, regarding the enterprise,
the protection granted by the law to the ownership right in general.
(Protection of possession)
An entrepreneur can protect his possession of an enterprise by common legal
means.
(Claim for return [acção de reivindicação] of commercial enterprise)
1. An entrepreneur can judicially demand from any possessor or detainer of
the enterprise the recognition of his ownership right and its consequent
restitution.
2. The relevant provisions of the Civil Code shall apply to the claim for
return of an enterprise, with the necessary adaptations.
(Direct action)
An entrepreneur can defend his ownership right over an enterprise by means of
direct action, in accordance with the Civil Code.
(Acquisition of ownership of enterprise)
The ownership right over an enterprise is acquired by any of the means
admitted by law that are compatible with its nature.
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