(Insurance for a value higher than insurable value)
1. An insurance contract concluded for an amount that exceeds the real value
of the insured interest shall be voidable, if there is bad faith by the insurer
or by the insured.
2. However, if the insurer is in good faith, it has the right to the premium
of the period underway at the moment at which it becomes aware of the insured's
intention.
3. If there is no bad faith on the part of the insured, the contract produces
effect up to the real value of the insured good, and the insurance holder shall
have a right to reduction of the premium.
(Insurance with more than one insurer)
1. Whoever insures the same interest with various insurers, in relation to
the same risk, and for the same period of time, must give notice of the
existence of all other contracts to each of them.
2. If the insured, in bad faith, fails to give such notice, none of the
insurers shall be obliged to pay compensation.
3. In case of accident, the insured can claim the totality of the
compensation due from any of the insurers, within the limits of the amount
insured.
4. An insurer that has made payment has a right of return against the others,
in proportion to the amounts insured; in case of bankruptcy of one of them, or
of nullity, or lack of legal effect of one of the contracts, its share shall be
distributed among the others.
5. In case of civil liability insurance in which one of the insurers is
liable without limit, the right of return mentioned in the previous paragraph
shall exist in accordance with the proportion of the premiums corresponding to
each of the contracts.
(Elimination of double coverage)
1. If the insurance holder agrees an insurance contract not knowing of double
coverage arising from it, he can request its annulment, or a reduction of the
amount insured, with a reduction of the premium proportional to the part of the
insurable value that is not covered.
2. In case of reduction of the insurable value after the conclusion of the
various contracts, the holder can rescind the most recent, or ask for a
reduction of the insured amount, in accordance with the previous paragraph.
3. However, if the insurers divide the risk, by quota or by specific amounts,
with or without agreement between them, the holder can only claim a proportional
reduction of the insured amounts and of the premiums.
4. Annulment, rescission, or reduction, only takes effect after the period of
insurance underway.
5. The right of annulment, rescission or reduction is extinguished if the
insurance holder does not exercise it immediately after having knowledge of the
double coverage.
(Co-insurance)
1. If, by means of a previous agreement between all parties intervening in a
contract, various insurers jointly assume a certain risk, except if there is an
agreement to the contrary each insurer shall be liable only for a share of the
risk guaranteed or for a percentile part of the insured capital subscribed.
2. Without prejudice to the previous paragraph, in a co-insurance contract
one of the insurers shall be appointed as leader; within the limits of the law
and of the contract, it shall represent the others towards the insurance holder
and the insured.
(Exclusion of certain risks)
Except if there is an agreement to the contrary, the insurer is not liable for
damage caused by earthquakes, war, terrorism, insurrection, or riots.
(Obligation to salvage)
1. If an accident occurs, the insured must take all measures that, in
accordance with circumstances, are adequate to avoid aggravation of the damage.
2. Salvage expenses are the responsibility of the insurer, according to the
proportion of the insured amount to the insurable value, even if, added to the
amount of the damage, they exceed the insured value, or if their objective has
not been achieved, unless the insurer proves that such expenses have been
incurred without reasonable thought.
3. An insurer is liable for physical damage directly caused to the insured goods
by the means used by the insured to avoid or to diminish the damage of an
accident, unless it is proven that such means have been used without reasonable
thought.
4. The intervention of the insurer in the salvage of insured goods and in the
respective conservation does not prejudice its rights.
5. An insurer that intervenes in salvage shall advance funds for expenses or
contribute to them in proportion to the insured value, if requested by the
insured.
(Lack of salvage)
1. An insured who intentionally does not fulfill the provisions of paragraph
1 of the previous article shall lose the right to compensation.
2. If such omission is negligent, the insurer shall deduct the value
corresponding to the damage suffered from the compensation.
(Arbitration)
1. If the insured and the insurer do not reach an agreement as to the
ascertainment of damage, they can opt for arbitration in accordance with general
rules, without prejudice to the following paragraph.
2. A decision by arbitrators can be judicially appealed within 30 days, by
the insurer, or 60 days, by the insured, counted from the date of its
notification.
(Subrogation of insurer)
1. An insurer who has paid compensation is subrogated in the rights of the
insured against liable third parties, up to the amount of such compensation; the
insurer is obliged to refrain from any acts or omissions that may harm
subrogation, under penalty of liability for damage caused.
2. Except in case of intentional conduct, subrogation does not take place in
relation to damage caused by descendants, ascendants, adoptees, persons with
affinity in the direct line and domestic servants of the insured, or by any
other persons living with him in domestic economy.
3. Subrogation cannot, in any in case, prejudice an insured who has been
partly compensated.
4. If, in accordance with paragraph 2, or pursuant to a contract, the right
of return of the insurer is excluded in relation to certain persons, the insured
cannot initiate legal proceedings against them, within the limits of the
compensation received.
(Right of return against insurance holder)
In case of civil liability insurance, the insurer has a right of return
against an insurance holder who has intentionally caused an accident.
(Bankruptcy or insolvency of insurance holder or of insured)
1. In case of bankruptcy or insolvency of an insurance holder or of an
insured, the rights and obligations arising from the contract are transferred to
the bankrupt estate.
2. The insurer and the administrator of the bankrupt estate can rescind the
contract within three months from the date on which the judicial decision
declaring bankruptcy was pronounced, whether it has been appealed or not, or
from the date at which the insurer had knowledge of it.
3. If the contract is rescinded by the insurer, the administrator of the
bankrupt estate has the right to claim return of the part of the premium
corresponding to the time during which the risk ceased to be covered.
(Transfer of contract by transfer of insured good)
1. Except in case of civil liability insurance, if the insured good is
transferred the rights and obligations arising from the contract shall be
transferred to the transferee.
2. The matured premium corresponding to the period underway is due from the
transferor, who is jointly and severally liable with the transferee for payment
of any premiums that may mature before the transfer and the name of the
transferee have been communicated by the transferor to the insurer.
(Rescission of contract in case of transfer)
1. An insurer can rescind the contract within one month from gaining
knowledge of the transfer, by means of an advance notice of 15 days, sent by
registered letter.
2. If the insurer exercises its right of rescission, it shall return the part
of the premium corresponding to the period during which, as a result, it ceased
to cover the risk.
3. The transferee has a right to rescind the contract up to the end of the
period underway.
4. If the policy is to order or to bearer, the transfer does not have to be
communicated to the insurer, and neither the insurer nor the transferee can
rescind the contract.
5. If there are several transferees, all are jointly and severally liable for
payment of premiums.
(Valid payment)
If the contract of transfer is void, or in case of lack of communication to the
insurer, a payment made by the insurer to the transferee or to the transferor
shall release the insurer, if the latter did not have knowledge of the
contract's defect or of the transfer.
(Representation of insured)
Up to the moment at which the transfer is communicated to the insurer, the
transferor is considered to be a representative of the insured for all purposes.
(Transfer by reason of death)
1. The rights and obligations arising from an insurance contract, with the
exception of those directly connected to the person of the insured, shall be
transferred to the respective heirs as a result of his death.
2. Article 1013 applies, with the necessary adaptations, to a transfer as a
result of death, but the time limit for rescission by the insurer shall run from
the moment at which it knew to which heir the insured good was allocated.
(Extinction of insurance and certain categories of creditors)
1. The extinction of an insurance contract cannot be invoked against
creditors with real guarantees mentioned in the policy, or known to the insurer
by any other appropriate means, before one month has elapsed from the
communication of such extinction, by the insurer, to them.
2. The creditors mentioned in the previous paragraph can pay any premium due
from the insurance holder or the insured, even if these oppose it.
3. For the purpose of the previous paragraph, the insurer must communicate to
creditors the lack of payment of the premium by the insured.
FIRE INSURANCE
(Scope of insurance)
Fire insurance comprises:
a) damage caused by fire, even if it was started by fortuitous events,
intentional action by a third party, or negligence by the insured or by a person
for whom he is liable under civil law;
b) damage arising immediately from a fire, such as that caused by heat,
smoke, or vapor, by the means used to extinguish or to fight the fire, by the
removal of furniture and by demolition executed in accordance with an order from
a competent authority;
c) damage caused by lightning, explosions or other similar accidents, whether
or not accompanied by fire.
(Object insured)
1. Insurance covers the objects described in the policy.
2. In case of furniture insurance, coverage includes damage provoked by fire
to goods of common use of the insured, his family or other persons living with
him in domestic economy.
3. Except if there is an express agreement to the contrary, insurance
coverage does not include damage caused by fire to money, negotiable
instruments, documents, precious metals, jewels, works of art, or other objects
of value, placed in the insured object.
CREDIT INSURANCE
(Credit insurance)
In credit insurance the insurer undertakes, within the limits set in the law
and in the contract, to compensate the insured for damage arising from lack of
payment, including bankruptcy or insolvency of his debtors.
(Facts generating accident)
Facts generating an accident are:
a) insolvency certified by a judicial decision declaring bankruptcy of a
debtor, or another judicial act with the same effect, and also by judicial or
extrajudicial agreement [concordata], provided that it is agreed with all
creditors and enforceable against each of them;
b) insufficiency of means, revealed in executive proceedings or through
conclusive evidence, presented by the insured, in relation to the financial and
patrimonial situation of the debtor;
c) delay by the debtor;
d) act or decision of the Government or a public entity of the country or
region of the debtor, or of a third country or region, that obstructs
the performance of a contract;
e) legal provisions of the Territory aiming specifically at international
trade, that render impossible the execution of a contract, the delivery of
goods, or the rendering of services agreed;
f) general suspension of payments declared by the country or region of the
debtor, or by a country or region intervening in the payment;
g) legal provisions of the country or region of the debtor declaring that
payments made by the debtor are a valid discharge of obligations, if, as a
result of exchange rate fluctuations, such payments, when converted into the
currency of the contract, do not match the amount of the unpaid credit at the
moment of the transfer;
h) suspension or difficulties of transfer arising from facts not imputable to
the debtor that generate delays in collecting amounts due to the creditor;
i) occurrence of wars outside Macao, even if not declared, and also
revolutions, riots, annexations, or analogous acts and facts;
j) catastrophic events occurring outside Macao, such as earthquakes, tidal
waves, volcanic eruptions, typhoons, cyclones, or floods;
l) non-performance not imputable to the creditor if the debtor is a State or
another public law collective person or, in case of a private law person, if the
respective payment has been guaranteed by the former;
m) an agreement by which the insured and the insurer consider the credit
non-collectible.
(Limits of coverage)
1. Coverage shall be limited to a percentage of the credit insured, set in
the contract.
2. The value of compensation shall be calculated on the basis of the damage
ascertained, within the limits of the insured credit and of the percentage of
coverage set.
3. The policy can provide for limits to the amounts that can be compensated.
(Assessment of risk)
The insured and the insurance holder are obliged to supply to the insurer all
elements of information relating to the operation to be insured, and to
authorize access by the insurer to bookkeeping and other accounting elements
connected with the operation.
CIVIL LIABILITY INSURANCE
(Civil liability insurance)
1. In civil liability insurance an insurer undertakes, within the limits of
the law and the contract, to cover the risk of the emergence for the insured of
an obligation to compensate a third party for damage caused by an event foreseen
in the contract.
2. Damage arising from intentional conduct by the insured is excluded.
3. If there are several injured third persons with right to compensations
that, as a whole, exceed the value of the insurance, the rights of such injured
third persons against the insurer shall be proportionally reduced until the
concurrence of such amount.
4. An insurer who, in good faith and unaware of the existence of other
claims, pays to an injured third person a compensation of a value higher than
that payable in accordance with the previous paragraph, is only obliged towards
other injured third persons up to the remaining part of the insured capital.
5. The obligation of the insurer subsists even after termination of the
contract, provided that the damage occurred during its period of application.
(Judicial proceedings)
1. Except if there is an agreement to the contrary, the insurer can take
direction of legal proceedings regarding claims by injured third persons; the
respective costs, including judicial ones, shall be borne by the insurer.
2. The insured shall provide any collaboration that the insurer may
reasonably request from him.
3. Notwithstanding the provisions of the previous paragraphs, if an injured
third person has contracted insurance with the same insurer, or if there is any
another possible conflict of interest, the insurer must communicate such
circumstances to the insured, without prejudice to taking measures of an urgent
nature.
4. In the case mentioned in the previous paragraph, the insured is free to
entrust his defense to a person of his choice, and the insurer shall be obliged
to pay the respective costs, up to the limit set in the contract.
(Legitimacy of injured third person or respective heirs)
1. Both an injured third person and the respective heirs can initiate legal
proceedings directly against the insurer, in order to demand the performance of
the obligation to compensate.
2. The insurer can invoke against an injured third person and the respective
heirs any defenses invokable against the insurance holder, or against the
insured, at the moment of the occurrence of the accident.
(Excess)
By means of the introduction of a corresponding clause in an insurance
contract, an insurance holder can undertake to pay a part of the compensation
due to a third party for economic damage; however, such limitation of coverage
cannot in any case be invoked against an injured third person and the respective
heirs.
INSURANCE OF PERSONS
GENERAL PROVISIONS
(Risks)
1. Insurance of persons comprises all risks likely to affect the life,
physical integrity, or health of the insured.
2. The contract can be agreed with reference to risks relating to either one
person or to a group of persons.
(Insured capital)
1. In life or personal accident insurance, the insured capital is that stated
in the contract.
2. The performance due by the insurer in the cases mentioned in the previous
paragraph is autonomous regarding any other arising from other insurance
contracts.
(Subrogation)
1. In insurance of persons, the insurer, after executing the performance due,
cannot subrogate itself in the rights of the insured arising from the accident
against third parties.
2. Medical and hospital expenses paid by the insurer in case of accident
caused by a third party are excepted from the provision of the previous
paragraph.
LIFE INSURANCE
(Types)
1. Insurance can be contracted for the case of death, for the case of life,
or in combined form.
2. It is also possible to contract complementary insurance, ancillary to life
insurance.
(Who can contract insurance)
1. The life of a person can be insured by the person himself, or by a third
party.
2. If the insurance holder is not the insured, the latter must give his
consent in writing.
3. If the insured is a minor, the consent mentioned in the previous paragraph
is given by his legal representatives, in accordance with general rules; such
consent shall be ratified by the minor.
4. It is not permitted to conclude an insurance contract for the case of
death if the insured is younger than 14 years old, or if he has been declared
lacking in legal capacity by a judicial decision that can no longer be appealed.
(Reciprocal insurance)
Various persons can stipulate in the same contract a reciprocal insurance for
the case of death of any of them.
(Insurance in favor of a third party)
1. In insurance in favor of a third party, the designation of beneficiary can
be done in the contract, or later, either by means of a written declaration
communicated to the insurer, or in a testament.
2. The designation of beneficiary shall be valid even if made in a generic or
indirect manner, provided that it is sufficiently intelligible and objective.
3. The attribution of the insured capital in a testament shall be considered
for all purposes as a designation.
4. The holder can designate a beneficiary, or modify a designation made,
without authorization from the insurer.
5. If no beneficiary has been designated, it shall be deemed that the holder
reserved the possibility to designate the beneficiary at any time; if, at the
date of death, he still has not done so, and in the lack of objective criteria
for such determination, the insured capital shall become part of the estate of
the insurance holder.
(Revocation of designation of beneficiary)
1. A designation of beneficiary can be revoked, regardless of acceptance, by
any of the means mentioned in paragraph 1 of the previous article.
2. Revocation cannot be effected by the heirs of the insurance holder, before
or after his death, or after the maturity of the performance, if acceptance by
the beneficiary has already taken place.
(Renunciation of revocation)
1. Even if an insurance holder has renounced in writing the right to revoke
the designation of the beneficiary, such right can always be exercised up to the
moment of acceptance by such beneficiary.
2. Renunciation of revocation, and acceptance, must be communicated to the
insurer, under penalty of not being invokable against other beneficiaries later
designated.
(Interpretation of clause designating beneficiary)
1. If a designation is made to the benefit of the heirs of the insured, it is
understood that these are the legitimate or testamentary heirs, in accordance
with general rules.
2. If the designation is made to the benefit of the spouse, it is understood
that he or she is the one with whom the insured is married at the moment of
death.
3. If the designation is made in favor of various beneficiaries, the
performance of the insurer shall be distributed in equal parts, except if there
is a declaration to the contrary by the insurance holder.
(Non-disposability of benefit)
1. Any disposal of the benefit shall be void, except with the express or
implied agreement of the insurance holder.
2. The previous paragraph applies even in the case of an irrevocable
designation of beneficiary, if it is motivated by a savings purpose on the part
of the insurance holder.
(Lapse of designation of beneficiary)
1. The effect of a designation of beneficiary, even if irrevocable, shall
cease if the beneficiary makes an attempt against the life of the insured.
2. In case of insurance of the life of a third party, it is not possible for
the same beneficiary to be designated again without consent by the insured.
(Extinction of right of beneficiary)
A beneficiary shall lose the right to the insurer's performance if, after
being notified to accept it after its maturity, he does not do so within six
months.
(Declarations by insurance holder)
1. Omissions or inaccurate statements by an insurance holder that influence
the assessment of risk have the consequences mentioned in articles 974 and 975.
2. However, the insurer can only exercise its rights arising from such
omissions or inaccurate statements either within one year from the conclusion of
the contract, or within a period stipulated in the contract, if the latter is
shorter.
3. The previous paragraph does not apply if the insurance holder acted
intentionally.
(Inaccurate statement of age of insured)
1. An inaccurate statement of the insured's age can only be invoked by the
insurer if his real age exceeds the limits stated in the policy.
2. However, if the consequence of the inaccurate statement of age is the
payment of a premium lower than that corresponding to the real age, the
performance of the insurer shall be reduced proportionally in accordance with
the effectively unpaid part of the premium.
3. If the consequence of the inaccurate statement of the age of the insured
is the payment of a premium higher than that corresponding to the real age, and
if the holder did not act intentionally, the insurer is obliged to return the
part of the premium paid in excess.
(Medical examination of insured)
1. Besides the declaration of risks by the insurance holder or insured, and
the answers to the questionnaire contained in the insurance proposal, the
insured may have to subject himself to a medical examination, for the account of
the insurer.
2. The report and conclusions of such medical examination are subject to a
duty of confidentiality by all parties involved.
(Increase of risk)
1. In life insurance, the insurer covers all supervening increases of the
risk, namely regarding health, travel, or change of activity of the insured.
2. The previous paragraph does not prevent the exclusion of coverage of
certain risks in the policy.
(Payment of premium)
1. An insurance contract only takes effect with the payment of the first
annual premium or, the case being, the first fraction of it.
2. Lack of payment of fractions subsequent to the first annual premium
determines the suspension of the effects of insurance 30 days after a
notification made by the insurer to the insurance holder, by means of a
registered letter with acknowledgement of receipt.
3. Lack of payment of premiums relating to subsequent annual periods
determines the rescission of the contract 30 days after a notification made by
the insurer to the insurance holder, by means of a registered letter with
acknowledgement of receipt.
4. In the case mentioned in the previous paragraph, the rescission of the
contract shall be replaced by a reduction of the insured capital, to the extent
that such possibility is foreseen in the contract.
5. Any person with a legitimate interest can substitute himself for the
insurance holder in the payment of premiums.
(Forfeiture of right to performance by insurer)
1. A beneficiary who intentionally, as perpetrator or participant, provokes
the death of the insured, shall forfeit the right to the performance of the
insurer.
2. In the case mentioned in the previous paragraph, the performance due
reverts to the estate of the insured if no other subsidiarily or jointly
designated beneficiaries exist.
3. In insurance of the life of a third party, the death of the insured,
intentionally caused by the insurance holder, shall release the insurer towards
the insured, as well as towards the beneficiary, and even the redemption value
shall not be payable.
(Suicide)
1. An insurer shall be released from its performance in case of suicide of
the insured within the first year of validity of the contract.
2. Any contract clauses according to which the insurer undertakes to pay its
performance in the case mentioned in the previous paragraph shall be void.
(Insured absent and not heard of)
Unless there is an agreement to the contrary, the absence of the insured from
his domicile or residence, without news of his whereabouts, only creates for the
insurer the obligation to pay the due performance after a declaration of
presumed death.
(Reimbursement of amounts)
Without prejudice to paragraph 3 of article 1046, in case of rescission of
the contract, or of suicide of the insured, and in any other cases of exclusion
of the obligation of the insurer mentioned in the law or, in a valid manner, in
the policy, the insurer must reimburse an amount corresponding to the redemption
value to the insurance holder or, if the death of the insured has already
occurred, to the beneficiary.
(Reduction and redemption)
1. The policy shall clearly mention the rights of reduction and redemption,
so that the insurance holder can know its value and exercise his rights.
2. The insurer shall pay the redemption value, upon demand, to the insurance
holder, within two months.
3. If there is an irrevocable designation of beneficiary, the holder needs
his consent in writing in order to exercise the redemption right.
4. The previous paragraph applies to the insured, if he is not the insurance
holder.
(Exclusion of rights of reduction and redemption)
1. In temporary insurance for the case of death, or in insurance for
immediate life annuities [renda vitalícia imediata] or for non-delayed periodic
annuities [renda periódica não diferida], there is no right of reduction or
redemption.
2. In insurance for survival capital [capital de sobrevivência] or for
survival annuities [renda de sobrevivência], there is no right of redemption.
3. The right of redemption does not exist in insurance for the case of life
without counter-insurance, or in insurance for delayed life annuities [renda
vitalícia diferida] without counter-insurance.
(Advances of performance of insurer)
Under conditions mentioned in the policy, an insurer can grant to the
insurance holder advances of the performance for which it is obliged, within the
limits of the redemption value, provided that this right can be exercised.
(Pledge of the policy)
1. A policy can be pledged, either by means of a rider to the contract, or by
endorsement in guarantee, if it is to order, or also in accordance with common
rules.
2. The pledge of a policy requires the beneficiary's assent in writing, if he
has been irrevocably designated.
3. If the policy has been pledged, the pledge creditor can exercise the
redemption right if the obligation secured is not performed.
4. The right of redemption cannot be exercised before 10 days have elapsed
from a notice given to the debtor on the consequences of lack of payment.
(Amounts due from insurer)
1. The amounts due from an insurer to the insurance holder or to the
beneficiary cannot be judicially seized, and cannot be subject to provisional
judicial measures, or apprehended for a bankrupt estate.
2. The creditors or administrators of a bankrupt estate can, however,
exercise the right of redemption if there is no designated beneficiary.
INSURANCE AGAINST PERSONAL ACCIDENT AND HEALTH INSURANCE
(Reference)
1. Articles 1006, 1007, 1032 to 1040 and 1046 apply to insurance against
personal accident and to health insurance, with the necessary adaptations.
2. In the absence of consent, it is presumed that insurance covering a third
person is insurance for the account of such person.
(Accident)
A personal accident is any physical injury provoked by a sudden, external and
violent cause, independent of the will of either the insured or the beneficiary,
which produces temporary or permanent disability, or death.
(Exclusion of coverage of insurance)
1. The insurance coverage does not include the consequences of the
aggravation of hidden injuries arising from pathological situations existing
prior to an accident.
2. It is for the insurer to prove the existing prior pathological situation
and its incidence in the aggravation of the consequences of the accident.
3. By agreement of the contracting parties, it is possible to exclude any
other abnormal situations, or the practice of certain dangerous activities.
4. Accidents caused by the insured under the influence of alcohol, narcotics,
or other drugs, or toxic products administered without medical prescription,
shall be excluded from the coverage, provided that there is a causal link
between the condition of the insured and the accident.
(Obligations of insured)
Even if insurance is for the account of another person, it is the insured who
must declare the risk.
(Health insurance)
1. A disease is any clinically proven involuntary change in the state of
health.
2. The provisions of articles 1057 and 1058 apply to health insurance, with
the necessary adaptations.
3. The extension and the scope of the guarantees, and the excluded risks,
shall be the object of agreement by the contracting parties.
GROUP INSURANCE
(Definition)
1. Group insurance is a contract concluded by a collective person or an
individual entrepreneur with a view to the adhesion of a group of persons who
meet the conditions stated in the contract, namely for coverage of risks in
connection with the duration of human life, risks affecting the physical
integrity of a person, or connected to maternity, and risks of work incapacity,
disability, and unemployment.
2. Adherents must have a legal relationship of the same nature with the
holder.
(Collection of payment from adherents)
Insurance contributions due from an adherent to the holder must be paid
separately from any others that the adherent may have to pay to him for other
reasons or based on a different contract.
(Exclusion of adherent)
1. The holder cannot exclude an adherent from the group insurance contract
unless the legal relationship mentioned in paragraph 2 of article 1060 ceases,
or the adherent stops paying the group insurance contribution.
2. Exclusion only takes effect 30 days after reception by the adherent of a
notification, which the holder must make to him by means of a registered letter
with acknowledgment of receipt.
(Information to adherent)
1. The holder must deliver to each adherent a document in which the insurer
lists, in a clear manner, the guarantees of the contract, its entry into force,
and the formalities that the adherent must carry out in case of accident.
2. The holder must also inform the adherents of any amendments to the
contract or to the rights and obligations resulting for the adherents.
3. After being informed of contractual amendments that have taken place, an
adherent can denounce his adhesion, provided that such adhesion is not
compulsory by reason of his legal relationship with the holder.
NEGOTIABLE INSTRUMENTS
NEGOTIABLE INSTRUMENTS IN GENERAL
GENERAL PROVISIONS
(Freedom of issue)
Negotiable instruments not especially regulated by the law can be issued,
provided that the intention to issue instruments of such nature is clearly
mentioned in them, and that the law does not forbid them.
(Bearer, order, and nominative instruments)
1. Bearer instruments are those declared as such by the law or those of which
cannot be doubted, given the text or the form of the instrument, that the
performance is due to their bearer.
2. Order instruments are those in which the person who is the creditor is
mentioned in the instrument, and which contain a clause to order, as well as
those declared as such by the law.
3. Nominative instruments are those in which the person who is the creditor
is mentioned in both the instrument and in the register of the issuer, and which
are neither issued to order nor declared as such by the law.
(Subscription of instrument by issuer)
1. Negotiable instruments shall be subscribed by the issuer, unless the law
dispenses with it; a mechanical reproduction of the signature shall suffice in
case of instruments issued in large numbers, and if it is considered adequate in
accordance with usage.
2. The validity of the subscription can be subject to the observance of
formalities mentioned in the instrument.
3. Subscription is any material sign that serves, in accordance with the
usage of Macao, to identify, on a paper or instrument, the person making it.
(Signature by representative or upon request [a rogo])
Negotiable instruments, including bills of exchange, can be signed by persons
acting as representatives or upon the request of another person.
(Mention of object of performance. Discrepancy in indication of amount)
1. Negotiable instruments must mention the object of the performance.
2. If the amount payable is mentioned in the instrument in words and figures,
and if there is a discrepancy between them, that indicated by the words shall
prevail.
3. If the amount payable is mentioned more than once in the instrument,
whether in words or in figures, and there is a discrepancy between the various
amounts, the smaller amount mentioned in writing shall prevail.
4. If the mistake in the indication is evidently visible from the instrument,
the correct indication shall prevail.
(Amount mentioned in installments)
1. The amount payable under a negotiable instrument can be mentioned in
installments, if the law does not exclude it.
2. In the case mentioned in the previous paragraph, and in the case in which
as many instruments as installments are issued, article 770 of the Civil Code
shall apply, provided that the instrument clearly mentions that it is an amount
payable in installments, or an instrument representing one of the installments.
3. The previous paragraph applies only in the domain of mediate relations;
general rules shall apply to immediate relations.
(Stipulation of interest)
1. It is possible to stipulate interest on negotiable instruments, if the law
does not prohibit it.
2. The interest rate shall be indicated in the instrument; in the absence of
indication, it shall be calculated in accordance with the default rate.
3. Interest is due from the date indicated in the instrument for such
purpose; in the absence of such indication, it shall be due from the date of the
instrument itself.
(Acquisition of credit by payee or by subsequent holders)
1. The payee of an instrument shall only acquire the credit in accordance
with an act of negotiation with the issuer.
2. Subsequent holders become entitled to the credit by means of acquisition
in good faith and without gross negligence, even if the instrument has been put
in circulation against the will of the subscriber.
(Defenses invokable against holder)
1. A debtor can only invoke against the holder of an instrument the defenses
of lack of capacity or lack of representation at the date of issue, of forgery
of his signature, of duress, of lack of form, those defenses arising from the
literal content of the instrument, those that are personal to the bearer, or
those of lack of conditions necessary for taking judicial action.
2. The debtor can only invoke against the holder of the instrument the
defenses based on his personal relations with the previous holders if the
holders, when acquiring the instrument, knew of the defenses and acted willfully
to his detriment; the good faith of a holder renders such defenses not invokable
against subsequent acquirers of the instrument.
3. The debtor can invoke against the holder of the instrument the defense
that the latter does not have the power to dispose of the instrument because he
acquired it in bad faith or because, when acquiring it, he acted with gross
negligence, or on the basis of any other lawful cause.
(Causal instruments)
1. Obligations arising from negotiable instruments are not necessarily
independent from the respective cause.
2. If a cause is mentioned in the instrument, it is not permitted to invoke
against a good faith third party that such cause is not truthful, but it is
possible to invoke against such third party defenses based on the cause
mentioned, provided that its mention signifies that the issuer wanted to retain
such right.
3. If a cause is not mentioned in the instrument, or is mentioned only
incidentally or for added clarity, it is not possible to invoke against a good
faith third party any defenses based on such cause.
4. Cases in which the law provides for the opposite to that mentioned in the
previous paragraphs are not affected.
(Acquisition in good faith)
1. A person who has acquired a negotiable instrument in accordance with its
rules of circulation is not obliged to return it to a person who has been, by
any reason, dispossessed of it, unless he has acquired the instrument in bad
faith or, when acquiring it, has acted with gross negligence.
2. Bad faith consists in knowing that the transferor is not the owner of the
instrument, or that he does not have the power to dispose of it, or that he
lacks legal capacity or powers of representation, or that the act of acquisition
of the instrument suffers from any other defect.
3. If a holder has acquired an instrument without bad faith or gross
negligence, the defense of dispossession cannot be invoked against a subsequent
holder, even if the latter knows of the defects of the previous transfer.
4. If there is a right to restitution of the instrument, judicial action can
be initiated even by whoever, not being the holder of the right arising from
such instrument, has acquired the credit in accordance with common rules, or
held the instrument for a cause that authorizes him to claim its delivery.
(Rescission of transfer)
1. If the transfer of a negotiable instrument, made under the terms of the
previous article, is rescinded, the ownership of the instrument belongs to the
previous true owner, and not to the one who had transferred it without right.
2. The same happens if the transferor transferred the instrument, without
right, to a good faith third party, so as to later reacquire it.
(Performance by good faith debtor)
1. A debtor who pays, at a time when he is obliged to pay, to whoever the
instrument formally confers the capacity of creditor, without fraud or gross
negligence, is validly discharged, even if the person to whom he paid is not the
real holder of the right or does not have legal capacity or power of disposal.
2. Fraud only exists if the debtor has clear and precise evidence of the
non-entitlement, or of the incapacity, or of the lack of power of disposal.
3. If the instrument is to order, the debtor is obliged to verify the
regularity of the succession of endorsements, but not the authenticity of the
signatures of the endorsers or the other circumstances that arise from the
provision of paragraph 1.
(Performance against delivery or mention and receipt)
1. The debtor of a negotiable instrument is only obliged to perform against
delivery of the instrument, with a receipt written either on it or in an
attached slip, if there is one.
2. The right to demand delivery of the instrument with a receipt written on
it or in the attached slip, or to demand only the delivery or only the receipt,
can be exercised after payment.
3. If the performance is partial, the debtor can demand that mention of such
installment be made in the instrument, and that a receipt for it be given to
him.
4. The mention and the receipts must be subscribed and dated by the person
receiving the performance and, in the case of partial payment, shall indicate
its amount.
5. The previous paragraphs apply to executive procedures, with the necessary
adaptations arising from procedural law.
6. After an instrument is delivered to the debtor, who can exonerate himself
by paying it, he acquires the ownership of the instrument, even if the bearer
does not want to transfer it to him, or does not have a right to dispose of the
instrument.
(Instrument with obligation to pay sum of money)
1. A negotiable instrument containing an obligation to pay a certain sum of
money can neither be issued to bearer nor, if it is part of an issue in series,
to order, except in the cases authorized by the law.
2. An instrument put into circulation without legal authorization or without
observance of the conditions on which such authorization depends, shall be void
and the drawer who has put it into circulation is obliged to compensate good
faith third party bearers for the damage that they would not have suffered if
the issue had not been made.
(Transfer of accessory rights)
The transfer of a negotiable instrument includes accessory rights inherent to
it.
(Instruments representing merchandise)
Instruments representing a title to merchandise grant to the holder a right
to take delivery of the merchandise specified in it, the possession of such
merchandise, and the power to dispose of it by transferring the instrument.
(Liens or charges over right)
Pledge, judicial apprehension [arresto], judicial seizure [penhora], and any other liens or
charges over a right mentioned in a negotiable instrument, or over the
merchandise that it represents, shall have no effect unless enforced against the
instrument.
(Limits of usufruct and pledge over instruments with rights to aleatory
utilities)
1. The usufructuary of a negotiable instrument is only entitled to the
fruition of premiums or other aleatory utilities generated by the instrument;
such utilities must be applied in accordance with general rules on the
application of capital burdened with a usufruct or collected during a usufruct.
2. The pledge of a negotiable instrument does not extend to such premiums or
utilities, and only includes interest coupons, rents, or dividends belonging to
such instrument if they are delivered to the pledge creditor.
(Guarantees of underlying relation)
Guarantees of the underlying relation secure the obligation arising from a
negotiable instrument, even if to the benefit of third parties, unless there is
novation, in which case the respective provisions shall apply.
(Conversion)
1. A negotiable instrument to bearer can be converted into a nominative or
order instrument, upon request and at the expense of the holder.
2. If conversion was not expressly excluded by the issuer, a nominative
instrument can be converted into a bearer instrument, upon the request and at
the expense of the registered holder, provided that he proves his identification
and capacity in accordance with article 1127.
3. An order instrument can be converted into a bearer instrument, upon
request and at the expense of the interested party, provided there is consent
from all those on whom it confers rights and from all obliged parties.
4. The consent of the drawer of a bearer or order instrument can be given by
means of declaration, in the instrument, that he assents to the conversion by
any bearer.
5. The consents regulated in this article shall be mentioned in the
instrument.
(Renewal)
The bearer of a negotiable instrument that, due to wear, is no longer fit for
circulation, but is still unmistakably identifiable in its essential content and
distinctive signals, has the right to demand from the issuer an equivalent
instrument against the surrender of the worn one, by paying any expenses in
advance.
(Consolidation and division)
1. Negotiable instruments issued in series can be consolidated into a single
instrument, and those that comprise various instruments can be divided into
instruments of a smaller value.
2. The consolidation and division mentioned in the previous paragraph are
made upon request and at the expense of the holder.
(Duplicates)
Duplicates of negotiable instruments can be issued if the law does not
prohibit it; the provisions on the issue of parts of a set of bills of exchange
shall extend to it, in the applicable part.
(Suspension of limitation of actions)
1. The limitation of actions under a negotiable instrument is suspended by a
prohibition of payment, in favor of the petitioner of such prohibition and in
favor of the petitioner for annulment, after the decision of annulment is
notified to the debtor.
2. Suspension starts with the petition for prohibition, or with notification
of the annulment decision, and ends with the termination of the annulment
procedure or, if it is the case, with any of the facts mentioned in paragraphs 2
and 3 of article 1097.
(Destruction of instrument)
If the document incorporating a negotiable instrument is materially destroyed
or no longer permits the individualization of the right mentioned in it, such
right is not extinguished, but it cannot be exercised or be the object of
disposal; voluntary performance to a holder not legitimized by the instrument
shall be valid.
(Extinction of right)
1. If the right mentioned in an instrument has been extinguished by the
performance and it is mentioned in the instrument that such performance took
place, the performance shall produce effect in relation to the parties and to
third parties.
2. If it is not mentioned in the instrument, the performance can only be
invoked in immediate relations or against a third party who has knowingly
acquired the instrument to the detriment of the debtor.
(Documents of legitimation and improper instruments)
The provisions of this Title do not apply to documents whose sole purpose is
to identify the party entitled to a performance, or to make possible the
transfer of a right without observing the formalities required for assignment of
credits.
(Special rules)
1. The rules of this Title apply in all matters not otherwise regulated by
other provisions of this Code or by special laws.
2. Instruments of public debt, banknotes, and other similar instruments are
regulated by special legislation.
BEARER INSTRUMENTS
(Transfer)
1. The transfer of a bearer instrument shall be made by means of an agreement
in this respect between the transferor and the acquirer, together with delivery
of the instrument to the transferee; delivery can be made by the transferor, or
by another person in execution of instructions from the transferor; delivery
made to a third party chosen by the transferee is deemed to be delivery to the
transferee.
2. Delivery is not necessary if the transferee already detains the
instrument, and also in case of autonomous creation of possession [constituto
possessório].
3. Ownership of a bearer instrument can also be acquired, after the credit
right has been created, by any other means by which it is possible to acquire
the ownership of movable goods, in the applicable part, and can be extinguished
by abandonment, as can such goods.
4. The credit arising from a bearer instrument can be assigned, but it is not
transferred without delivery of the instrument to the assignee.
(Bearer interest coupons or analogous ones)
1. If interest coupons to bearer are issued for an instrument, the debtor
cannot invoke against a claim based on such coupons the extinction of the main
obligation, or the cancellation, or amendment of the obligation to pay interest,
unless the contrary is declared in the instrument.
2. If, at the moment of payment of the capital, the coupons that mature after
the reimbursement of the capital are not delivered, the debtor has the right to
retain their amount, up to the lapse of such coupons, except if a bail is posted
or if the coupons have been annulled.
3. Article 1078 does not apply to interest coupons or analogous ones issued
for instruments different from those there mentioned; if they are issued for
instruments mentioned in such article, a determination authorizing the issue of
these instruments implicitly also authorizes the issue of coupons.
(Annulment)
1. Bearer instruments that are totally or partly destroyed, lost, or stolen
can be annulled upon request of whoever has a right to them.
2. A deterioration so serious that it hinders renewal under article 1085
shall be deemed a destruction.
3. An issuer must provide to the holder the information, documents, and other
evidence necessary for an annulment procedure; expenses for these documents and
other evidence must be paid in advance by the holder.
4. Annulment is inadmissible in case of isolated coupons or other bearer
instruments that do not pay interest and are issued in large numbers, payable on
sight and intended to replace money.
(Prohibition of payment)
1. In the case of destroyed, lost, or stolen instruments, after judicial
proceedings for annulment of the instrument have been started, the court can,
upon request of the bearer, prohibit the issuer, and the persons indicated in
the instrument or named by the petitioner for payment, from making payment to
the detainer of the instrument, under penalty of possibly having to pay again;
the court can authorize them to deposit the amount of the instrument, upon
maturity, indicating the place for deposit.
2. The prohibition includes the issue of new interest coupons, rents, or
dividends, or the renewal.
3. Prohibition of payment must be notified to the issuer and to the other
parties mentioned in paragraph 1 and, additionally, must be published.
4. The prohibition made to the issuer also produces effect in relation to
paying parties not mentioned in the instrument.
(Revocation of prohibition of payment)
1. If, for any reason, an annulment procedure terminates without the
instrument being annulled, the court must, of its own initiative, revoke the
prohibition of payment.
2. The prohibition is also lifted if the requirements upon which the
extinction of preventive proceedings depend are met, as a result of negligence
by the petitioner, according to the law of procedure.
3. If the detainer of the instrument is known, the bearer must initiate
proceedings for restitution against him within a time limit stated by the court;
the prohibition of payment shall be lifted if proceedings are not initiated
within such time limit, or if the applicant is negligent in advancing the
proceedings, in accordance with the previous paragraph.
4. Revocation must be notified and published in the same way as prohibition.
(Payment in good faith)
Even if the bearer of an instrument has informed the debtor of the
destruction, loss, or theft of the instrument, a payment made afterwards by the
debtor to the detainer of the instrument shall release the debtor, provided that
he did not act willfully or with gross negligence.
(Rights of bearer before or after limitation of actions)
1. The legitimate bearer of a destroyed, lost, or stolen bearer instrument
who communicates and proves these facts to the issuer can demand payment from
the issuer after the time limit for limitation of actions has expired.
2. A debtor who pays to the detainer of the instrument before the expiry of
the period of limitation of actions releases himself, unless it is proven that
he acted willfully or with gross negligence.
3. If no annulment proceedings have been initiated, the legitimate bearer of
destroyed, lost, or stolen bearer shares can be authorized by the court, posting
a bail if necessary, to exercise the rights arising from such shares, even
before the expiry of the time limit for limitation of actions, provided that the
instruments are not presented by another person.
4. The rights of the author of the communication against the detainer of the
instrument are not affected.
(Isolated coupons)
1. In case of destruction, loss, or theft of isolated coupons, the judge
shall order, upon request of whoever has a right to them, that its amount be
deposited, within a period set by the same judge, after maturity or, if it is
already matured, after such judicial decision.
2. The judicial decision shall order the delivery of the amount to the
applicant, after the expiry of the time limit for limitation of actions, if in
the meantime no person has emerged as having a right to the same amount.
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