YEAR 2018 N.º 2 Volume 16

ISSN 2182-9845

2018 N.º 2

Fátima Reis Silva

The Proposal for a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures (2016/0359)

The new labor law in Brazil and the respect to the principles as a priori presumptions for law: the intermittent contract and the out of the line employees

Isabele Bandeira de Moraes D’Angelo / Lília Carvalho Finelli

Brazilian Labor Law; Labor principles; Intermittent Contract; Labor Reform; MP 808/17; Critical Theory.

Under the pretext of an economic crisis in 2017, Brazil promoted a drastic reform in its labor legislation, from Law 13467/17, as amended by Provisional Measure No. 808/17. One of the changes introduced was the intermittent work contract, from which the employer can request the presence of the employee at any time, according to his convenience and the employee can accept the offer or not. The intermittent worker was called by the authors of off-line employees, because they were workers outside the sphere of legal protection and, even after the reform, they worked in precarious conditions. In principle, such a contractual modality would bring new jobs, using the services provided only if necessary.

Transmission of a good in exchange for a price and its conformity with the contract: a comment of Judgement of the CEU of 7 september 2017 (C-247/16, Schottelius)

Lídia Arnau Raventós

Sale of goods; supply of services; consumer.

The comment testifies to an interpretation of the expression “sales contract” for the purposes of Directive 99/44 in light of the definition that incorporates Directive 2011/83. The result is the subject to the conformity regime with the contract of any good delivered onerously under a mixed contract and irrespective of the greater or lesser economic importance in the contract.

Building unit sale contract - main questions about the (in)transferability of condominium debts to the buyer

Filipa Isabel Ribeiro Moreira Azevedo

Building unit sale contract; horizontal property; condominium; condominium members; condominium fees; obligation propter rem.

The purpose of the elaboration of this research work entitled “Building unit sale contract - main questions about the (in)transferability of condominium debts to the buyer”, is the analysis of the main issues related to transmission or non-transmission of the condominium debts to the buyer under a building unit sale contract. This matter remains very controversial in Portugal and has already been subject to review in Spain, where it is necessary to have a declaration of non-debt issued by the condominium administration, to be exhibited at the time of formalization of the building unit sale contract.

Consumer protection in variable interest rate housing credit

Mariana Fontes da Costa

Housing credit; variable interest rate; negative interest rate; information duties; creditworthiness assessment; Decree-Law 74-A/2017.

This article focuses on some of the most important mechanisms foreseen in Portuguese Law for the protection of consumers in the framework of variable interest rate housing credit. For that purpose, it begins by analysing the dangers generated by the potential variation of the interest rate during the life of the contract and by assessing if the general legal limit regarding the maximum amount of interest rates chargeable within loan contracts applies to credit institutions in housing credit. It then evaluates the opposite scenario, questioning if there is a minimum limit from which the reference rate’s decrease will cease to be reflected on the interest rate applied.

Reflection on the Constitutionality of Pre-litigation Compulsory Mediation

Maria Jerónimo

Pre-litigation compulsory mediation; constitutionality; right of access to the courts; effective judicial protection; procedural assumption; guarantees; due process; courts; procedural diminishing; voluntariness.

Pre-litigation compulsory mediation raises several legal issues, especially when confronted with the fundamental right of access to the courts. In fact, some legal systems have elevated it to the rank of a procedural premise, requiring the parties to solve their problems through this alternative dispute resolution mechanism before initiating a court proceeding. However, the main problem arises if we consider that it can rule out the possibility of citizens to appeal to the courts as a way of solving their problems, which would contravene the Portuguese Constitution. Thus, it is necessary to consider whether such a system fits the Portuguese constitutional requirements of access to justice.

Collaborative housing: some notes on the legal situation in Spain and Portugal

Beatriz Sáenz de Jubera Higuero

Lease; tourist accommodation; cohousing; civil law; collaborative economy; housing.

The collaborative economy is a phenomenon that has been acquiring a growing role throughout Europe, and particularly in Spain and Portugal, in many different areas and sectors. Starting from an attempt of generic conceptualization of this phenomenon and concretion of its main characteristic notes, this paper intends to analyze its impact especially in the real estate field, focusing on two clearly differentiated businesses: the collaborative tourist accommodations and the cohousing; two figures that are said to be collaborative but that have been developed in different ways in this respect and that pose different challenges to answer from the law in general, and civil law in particular.

International Economic Sanctions: Concepts, Applicability and Global Extension

Juliana Visentin Ferreira Marreco

Sanctions; International Commerce; International Private Law; Cryptocurrencies.

The economic sanctions imposed by foreign governments were created as a system of measures capable of barring commercial and financial transactions that would otherwise benefit governments or individuals accused of acts against the international community. Eloping to its original purpose, time imposed a political character on what was initially essentially economic issue, creating a network of executive orders that surrounded the international capital market, extending its reach far beyond their borders.

Soft Law and good governance in the cryptocurrencies market

João Vieira dos Santos

Soft Law; Good Governance; Cryptocurrencies; Blockchain; Auto-regulation; Regulation.

The greater demands of competitiveness between companies, in the global context has overly affected the economical organization of our society, where an unprecedented number of innovation projects have emerged, trying to gain its market share. In the same vein, the technical revolution has shown a real transforming force of existing realities and a discoverer of unknown places and new paradigms, makings us question and reconsider our principles, rules and our conception of social living, from the perspective of contribution, collaboration and communication to improve the world that has become so small.

Book review of VV. AA.: Ordenación económica del matrimonio y de la crisis de pareja, dirigido por Carlos Lasarte Álvarez y María Dolores Cervilla Garzón, Tirant lo Blanch, Valencia, 2018, 894 pp. (ISBN 978-849143-941-7)

Adrián Arrébola Blanco

Directive 2014/17; mortgage credit; responsible lending; consumer protection.

Book review of VV. AA.: Ordenación económica del matrimonio y de la crisis de pareja, dirigido por Carlos Lasarte Álvarez y María Dolores Cervilla Garzón, Tirant lo Blanch, Valencia, 2018, 894 pp. (ISBN 978-849143-941-7)