YEAR 2015 N.º 3

ISSN 2182-9845

2015 N.º 3

Maria Regina Redinha

Nem tudo o que parece é, nem tudo o que é aparece
Respondendo ao lisonjeiro convite para a escrita do editorial de mais um número da RED, uma lustrosa revista on-line da FDUP que cumpriu já o seu segundo ano de ininterrupta edição quadrimestral, não posso deixar de a tomar como pretexto para uma breve reflexão sobre os passos corridos e a correr no novo trilho das publicações jurídicas electrónicas e sobre a uniformidade dos modelos de consideração qualitativa e quantitativa da produção bibliográfica académica.

About the power of unilateral modification of contract by public contractor: "Ius variandi"

Isa António

Exorbitant powers of the public contractor; administrative contract; power of unilateral modification or ius variandi; replacement of contract balance; related legal figures

One of the powers of public administration in the implementation of a public contract, which raises larger issues and doctrinal controversy about its meaning and scope is undoubtedly the so-called “ius variandi”. It translates into the power of reshaping the content of the contract originally concluded with the counterparty, as a rule, private player. Raises problems particularly in terms of the possible violation of the principle of equality between the parties and the principle of contractual stability. We analyze this power because it is an exorbitant power of the public contractor in his, considered sometimes abusive and its economic and financial implications in the agreement by the subsequent conclusion of financial rebalancing agreements.

Home banking: the allocation of losses due to computer fraud

Carolina França Barreira

Home banking; bank; computer fraud; phishing; access codes; payment services

The object of this investigation is focused on the study of the home banking service and how the allocation of losses due to computer fraud is processed in the scope of this service. When considering the questions raised by the allocation of losses associated with fraudulent operations, it is important to consider, mainly, the behaviour of the user of the home banking service. In our opinion, courts have been too demanding towards the user when judging his action in the use of this service.

Substance over form: anti avoidance clauses and the legality of tax planning

Eva Dias Costa

Freedom; neutrality; avoidance; anti-abuse clauses

The principle of private autonomy is a result of the will theory in contracts, and emanates directly from the most basic principle of Human freedom. It is true that the obligations are born ex lege; however there is always some intervention of the human will. The tax payer can in fact choose the way he wants to conduct his business – or if he wants to conduct it at all -, and such choice may take into account tax considerations. Therefore, the law recognizes that the individual is free to elect between two or more possible legal configurations despite of tax considerations, that is, even if the one he prefers means paying less tax.

The lawyer’s role in family mediation – critical analysis to the Portuguese reality

Rossana Martingo Cruz

Family mediation; lawyers; alternative dispute resolution; judiciary operators; justice administration; family mediator  

The Portuguese judiciary reality has shown some resistance towards family mediation, as a method of resolving conflicts. This reaction, although common through all justice operators, has been carried out also by lawyers. Quite often, distrust comes from lack of knowledge from these new forms of justice. The apprehension may come from the idea that the lawyer becomes expendable in mediation. This fallacious shadow should fade away. Therefore, we should think about the lawyer’s role in family mediation, when representing one of the parties in the dispute.

Bank of Hours – More Work and Less Euros

David Falcão / Sérgio Tenreiro Tomás

Bank of hours; individual bank of hours; group bank of hours; Memorandum of Understanding; Troika

The introduction of the bank of hours in the Portuguese legal system was never consensual, reality that was worsened by the introduction of two new types: individual and group. It was, in our opinion, to build another building block in symbolically nicknamed the "more work and less euros". A subtle way for legitimize more work (beyond the normal working hours) at lower cost, intentionally away the overtime regime (providing job with a higher hourly rates).

Effect of abstention on quorum and voting requirements in private companies: The Macanese legal regime

Augusto Teixeira Garcia

Quorum; majority; resolution; abstention; Commercial Code

In private companies resolutions are passed with a majority based upon the total number of votes conferred by the legal capital (section 382). In such a system, the effect of abstention equals a negative vote. However the law states that abstention should be counted neither in favor nor against the proposal (section 380/2). Hence it is necessary to ensure that the application of both legal rules is compatible. Three answers are possible: a) abstention always equals a negative vote; b) abstention equals a negative vote for resolutions referred in section 382/a), but not for those referred in section 382/b); c) abstentions are not counted, conforming to the literal meaning of section 380/2. Answer a) cannot be considered because that would amount to the abrogation of section 380/2. Of the other two possible answers, the one that prevails, considering rational and systematic arguments, is c).

Protection of popular culture and collective management organisations: appropriation of the commons and unjust enrichment?

Dámaso Javier Vicente Blanco

Privatización de la cultura; protección de la cultura popular; propiedad intelectual; bienes comunes; Convención de la UNESCO de 2003; proyecto de Disposiciones/Artículos de la OMPI, 2004-2014; apropiación indebida de la cultura popular; entidades de gestión colectiva (EGC); Directiva 2014/26/UE

Since the idea of privatisation of culture, protection systems of intellectual property deal with the treatment of expressions of popular culture. Existing instruments in this area are referenced (2003 UNESCO Convention), as well as the projected instruments (the WIPO Draft Provisions/Articles, 2004–2014). This review also examines the nature of expressions of popular culture constituting the commons and examples of cases of misappropriation. Community rules of collective management organisations, through the Directive 2014/26/EU, do not address the problem, but might consider the possibility of attributing some control functions to the collective management organisations.

A review of GROTEN, corpus und universitas, Tübingen, Mohr Siebeck, 2015

Tiago Azevedo Ramalho

Corporate law; Roman law; Law and Philosophy

A review of GROTEN, corpus und universitas, Tübingen, Mohr Siebeck, 2015