YEAR 2013 N.º 1

ISSN 2182-9845

2013 N.º 1

Maria Raquel Guimarães

Lança-se agora uma nova revista de Direito. Numa época de recursos escassos (não só materiais mas também imateriais, dos quais o tempo é um dos mais preciosos) dir-se-ia que é um gesto ousado, destemido. É, sem dúvida. Mas também corresponde a uma necessidade. A existência de um “espaço” de publicação especializado na área das ciências jurídico-empresariais e jurídico-económicas — integrando a Faculdade de Direito da Universidade do Porto um Centro de Investigação Interdisciplinar em Justiça já com longa e profícua experiência e tendo acabado de criar dois novos cursos de mestrado nas áreas jurídico-empresarial e fiscal.

Functionality and limitations of the ordinary request for refund and its applicability to the contracts in debtor's bankruptcy

Alexandre Ferreira de Assumpção Alves

Ordinary Refund; Bankruptcy; Property (Right of)

Through classified as applied, qualitative, explanatory and bibliographical research, relevant issues involving ordinary request for refund of Brazilian Law number 11.101/2005 are analyzed. The right to property is recognized as a fundamental right under art. 5, XXII of the Constitution, allows the owner to use, usufruct and dispose of the thing, and especially the right to reclaim it from those who have acquired unjustifiably, according to art. 1228 of the Civil Code, as did the art. 524 of the Brazilian Civil Code of 1916.

Relations between Portuguese and E. U. law of the fixed-term employment contract

Francisco Liberal Fernandes

Directive 1999/70; framework agreement on fixed-term work concluded ETUC/UNICE/CEEP; scope of application; social policy; approximation of the national legislations; measures to prevent abuse of successive fixed-term employment contracts; prohibition of a reduction of the general level of protection

Comments of the Directive 1999/70 of the fixed-term employment contracts. Analysis of the effects on labour law code and on the regime of public employment contract.

Some reflections on the forthcoming European Diplomas on consumer sales of goods

Maria Raquel Guimarães

Sales contracts; cross-border contracts; consumer rights; Directive 2011/83/UE; CESL; e-commerce

This text looks into the goal of the European directive on consumer rights (Directive 2011/83/UE) and the proposed Common European Sales Law (CESL) as an “optional instrument” that contractors can choose in cross-border contracts. It specifically questions the European Commission’s purpose to turn consumer law into an area of full harmonization and to create a new common European sales law and the main goals that are intended to be archived with this plan: the increase of cross-border contracts and the creation of a single European market.

Contract formation in electronic commerce

Mariana Carvalho Homem

Portuguese Decreto-Lei 7/2004. EU Directive 2000/31/CE, electronic commerce, contract formation, acknowledgement of receipt, confirmation of the order

The Portuguese Decreto-Lei 7/2004, dated January 7, which implements the EU Directive 2000/31/CE, dated June 8, stipulates a contract formation scheme for electronic commerce which differs from the general rules of Contract Law, as it establishes four stages for its formation: online offer, order, acknowledgement of receipt and confirmation. Therefore, this study aims at clarifying the moment at which electronic contracts are concluded. We begin by referring to the legal regimes applicable to these matters. We proceed with an analysis of the legal nature of the stages to the contracting process, where we support the existence of an obligation to issue contractually binding offers and classify the acknowledgement of receipt and the confirmation of the order as contractual duties.

Notes on the law applicable to agency. A Portuguese and Spanish law comparative view

Helena Mota

Agency; applicable law; international contract

Portuguese and Spanish PIL solve conflict of laws in matters of agency in different ways. Portugal’s accession to the Hague Convention of 1978 on the law applicable to agency, brought some coherence as conventional solutions are applicable to both internal and external relations on agency; on the contrary, in Spanish PIL there are different sources of conflict rules for these relations. Despite the differences there are issues and problems common to both jurisdictions caused by the complex nature of the agency and the dèpeçage adopted.

A vol d’oiseau: recent developments in the right to strike in the European Union

Maria Regina Redinha

Right to strike; collective action; minimum services; Laval case; Viking-Line case; proposal of regulation on the exercise of the right to take collective action

The right to strike in the European Union, despite its recognition in the Charter of Fundamental Rights and the judgments in "Laval" and "Viking-Line" cases, amongst others, it has always been equated to the freedom of establishment and the freedom to provide services showing the unresolved tension between social and economic, as underlined in the proposal for a Council Regulation on the exercise of the right to take collective action and its subsequent withdrawal. A comparison of the limitation of the right to strike between the Court of Justice and national courts judgements shows the prevalence of the social aspect in the latter.