Part 1 of Chapter 1

Question 1

What is the Law

Answer 1

1. System of rules
2. Regulates conduct within society
3. Assisted by mechanisms to ensure enforceability (coercive means)

Question 2

Why does the law exist

Answer 2

1. “Man is by nature a social animal” - Aristotle
2. Where there is man, there is a society. Where there is a society, there is the Law.

Question 3

What is the State?

Answer 3

1. A politically organized community.
2. Established on territory, exclusive to it
3. Independent and sovereign

Question 4

Elements of the definition of “State”

Answer 4

1. The people
2. The territory
3. The political power

Question 5

Tasks of the State

Answer 5

1. Security
2. Justice
3. Economic, social and cultural welfare
   Article 9 of the Constitution.

Question 6

Other systems that regulate conduct. (Part 1/3)

Answer 6

Religion:
1. Set of rules followed by believers either in relation to other people or regarding relationship with God.
2. However, sanctions in relation to an infringement only applies in the afterlife (therefore not enforced in the present life.

Question 7

Other systems that regulate conduct (2/3)

Answer 7

Morals:
Orients individual’s conduct, to practice good, thus allowing virtue. No enforcement.

Question 8

Other systems that regulate conduct (3/3)

Answer 8

Social rules:
1. Social conduct within society
2. Makes life within community easier
3. Non-compliance makes life more difficult
4. No enforcement.

Question 9

What is Natural Law

Answer 9

1. Permanent fundamental basis of all Law.
2. Group of universal, eternal principles, arising from justice, which, some authors above and beyond the Law in force in a community at any given moment.

Question 10

What is positive law

Answer 10

Body of statutes approved, published and in force in a certain place and in a certain period in time.

Question 11

Key Elements of the law

Answer 11

1. A system
2. Legal Provision
3. Enforceability

Question 12

The two main legal systems

Answer 12

1. Common Law
2. Civil Law

Question 13

Explain Common Law

Answer 13

1. Generally uncodified
2. No comprehensive compilation of legal rules and statutes.
3. Based on precedent and jurisprudence.

Question 14

Explain Civil law

Answer 14

1. Codified
2. Comprehensive, continuously updated legal codes that specify all matters that could be brought to court.

Question 15

What are Legal Provisions

Answer 15

(Normas juridicas)
Statutes, are legislative acts that contain rules of conduct, they are composed of legal provisions

Question 16

How do legal provisions work?

Answer 16

Connects a consequence to an abstract description of a certain event.

Question 17

In what ways do legal provision function

Answer 17

1. Describe the event that determines their application (Abstract description)
2. Conduct that must be adopted should the situation occur. (Determination) 2/2

Question 18

Legal provisions sometimes have what?

Answer 18

Sanctions,
However, they are not necessarily a part of a legal provision but are part of the legal system.

Question 19

Main characteristics of legal provision

Answer 19

1. Generic
2. Abstract
3. Breakable.
4. Enforceable
5. Mandatory

Question 20

Explain generic

Answer 20

Legal provisions, do not consider individuals in particular, they are created for undetermined people.

Question 21

Explain Abstract

Answer 21

Legal provisions do not address particular cases. Situations where provisions are applied are described in broad and non-particular manners. Do not contemplate particular cases.

Question 22

Explain Breakable

Answer 22

Legal provisions apply to free people therefore, there is the possibility of people breaking the law, knowing that there are consequences.

Question 23

Explain enforceable

Answer 23

Legal provisions are supported by a system with the means to enforce them, to use force to prevent or repress.

Question 24

Explain Mandatory

Answer 24

Legal provisions issue a command that should be complied with.
However, there are provisions that grant permission, an option or the possibility of an action or a result (Like voting).

Question 25

Types of legal provisions

Answer 25

1. Of substantive content 2. Of legal content

Question 26

Legal provisions of substantive content

Answer 26

Provisions that directly regulate an act regarding life in the community

Question 27

Legal provisions of a legal content

Answer 27

Provisions that regulate the matter of law. (Whosoever reaches the age of 18, acquires full legal capacity to govern himself and property.)

Question 28

Types of legal provisions

Answer 28

1. National, regional and local 2. More than perfect, perfect, less than perfect, imperfect 3. Direct and indirect (Normas directas e indirectas)

Question 29

National, regional and local legal provisions

Answer 29

National: Apply to the entire territory Regional: Apply to the autonomous regions Local: Apply within local municipalities

Question 30

Perfect legal provisions

Answer 30

Provisions that sanction illegal acts by rendering them invalid or null and void.

Question 31

Example of Perfect legal provisions

Answer 31

Purchase and sale of real estae must be executed in writing by public deed, or by private executed agreement, by a notary, lawyer or commercial or registry officers.

Question 32

What are more than perfect legal provisions

Answer 32

In addition to the invalidity of the acts, there are penalties.

Question 33

Less than perfect legal provisions

Answer 33

Establish a penalty, fine or imprisonment but do not invalidate the illegal fact. (Minor gets married without parental consent, marriage is valid, but does not have legal capacity to manage estate).

Question 34

What are imperfect legal provisions

Answer 34

Provisions with no sanction (Assembly confirms vote with absolute majority, president must enact legislative act within a time limit of eight days counting from its receipt)

Question 35

Enforceability (Sanctions)

Answer 35

Unfavorable consequences imposed by Law upon the offender as a result of an infringement of a law/Statute.

Question 36

Types of Sanctions

Answer 36

1. Compulsory 2. Reconstructive 3. Compensatory 4. Preventive 5. Punitive

Question 37

What are Compulsory penalties (1st type of Sanction)

Answer 37

Penalties intended to guarantee that after the infringement, the law is complied with. The goal is to prevent more infringements.

Question 38

Periodic penalty payment (Compulsory Penalty)

Answer 38

At creditor's request, the court may order the debtor to pay a monetary amount for each day of delay in complying with his obligations or for each offense.

Question 39

Right of retention (Compulsory Penalty)

Answer 39

The right to retain possession of certain things owned by another person until the possessor's claim against the owner has been satisfied. Provided that his claim results from expenses incurred because of the thing or damages caused by it

Question 40

Reconstructive Sanction (2nd type of sanction)

Answer 40

Sanctions that seek to reconstitute the situation exactly as it was prior to the infringement/to the damage, as if the infringement never occurred.

Question 41

Specific execution (Reconstructive penalty)

Answer 41

Execution of the activity imposed by the legal provision that was breached. If the debtor is obligated to adopted a certain conduct, but fails to do so, and the creditor maintains his/her interest in the conclusion of the business, the debtor is still obligated to comply.

Question 42

Specific execution in regard to work/service

Answer 42

Only possible if it is considered fungible, if it can be done/carried out b a third person

Question 43

Specific excecution if the obligation is to not do something

Answer 43

If it was not to construct something but the debtor does it anyway it is possible to undo it, order the debtor to demolish it at his expense.

Question 44

Specific execution in regard to the execution of an agreement.

Answer 44

If someone is bound to conclude a certain agreement and does not fulfill the promise, the other party can. If it wasn't otherwise agreed, obtain a sentence that produces the effects of the business declaration of the defaulting party, provided that the nature of the obligation is compatible with such course of action.

Question 45

What are Specific damages

Answer 45

When the debtor is under obligation to replace damaged goods, we are still within the scope of reconstructive penalty

Question 46

Compensatory penalty

Answer 46

Penalties aimed to create a situation that, although different, is equivalent to the situation that would exist if the breach did not occur. When natural reconstitution does not apply, compensatory sanctions must apply.

Question 47

Punitive penalty

Answer 47

Aims to impose suffering upon the offender and to reprove his conduct. Penalties can be criminal, civil or disciplinary.

Question 48

Punitive penalties (Criminal Penalties) Example

Answer 48

Crime of verbal offenses results in the application of an imprisonment term up to 3 months or fine.

Question 49

Punitive penalties (Civil penalties) Example

Answer 49

Maria, with intent of misleading Manuel tricks him into changing his will to benefit her. After Manuel's death, Maria is considered unworthy and therefore she cannot access Manuel's inheritance.

Question 50

Punitive penalties (Disciplinary sanctions)

Answer 50

Carlos attacks his supervisor, after a disciplinary proceeding he will be dismissed.

Question 51

Punitive penalty (Sanctions related to administrative offenses)

Answer 51

Non submission of tax returns/statements within the legal deadlines

Question 52

Preventive penalties

Answer 52

Aim at preventing future violations. Thus, in addition to an imprisonment term, supplementary penalties may apply, like restrictions to exercise of a professional activity.

Question 53

Sources of the Law

Answer 53

Means through which the law is created and revealed.

Question 54

Internal sources of the Law

Answer 54

1. Law/Statutes 2. Customs 3. Jurisprudence 4. Doctrine (First two create the law, second two ways of revealing the law.

Question 55

External sources of the law

Answer 55

EU Law: 1. Primary law (inter alia, treaties establishing the EU and the amending treaties) 2. Secondary Law (Unilateral acts, regulations, directives, decisions, recommendations, conventions and agreements. 3. Supplementary sources of the law

Question 56

Difference between EU regulations and EU Directives

Answer 56

Regulations are normative acts, they have general application, and are binding in their entirety and directly applicable in all Member states. Directives: Binding acts of general application, addressed to the Member states which have to be transposed.

Question 57

Conditions for EU directives to still have an effect under certain conditions even when they are not transposed

Answer 57

1. The transposition into national law has not taken place or has been done incorrectly 2. The provisions of the directive are unconditional and sufficiently clear and precise 3. The provisions of the directive give rights to individuals

Question 58

International sources of the Law

Answer 58

1. International conventions 2. International customs, evidence of a general practice accepted as law 3. General principles of law recognized by civilized nations

Question 59

Section of the Portuguese Constitution

Answer 59

1. The norms and principles of general or common international law form an integral part of Portuguese Law. 2. The norms contained in duly at ratified or approved international conventions come into force in Portuguese internal law once they have been officially published, and remain so for as long as they are internationally binding on the Portuguese State. 3. The norms issued by the competent organs of international organizations to which Portugal belongs come directly into force in Portuguese internal law, on condition that this is laid down in the respective constituent treaties. 4. The provisions of the treaties that govern the European Union and the norms issued by its institutions in the exercise of their respective competences are applicable in Portuguese internal law in accordance with Union law and with respect for the fundamental principles of democratic state based on the rule of law.

Question 60

Example of a treaty

Answer 60

1969 Vienna Convention defines a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation". The 1986 Vienna Convention extends the definition of treaties to include international agreements involving international organizations as parties.

Question 61

Agreements, example

Answer 61

Usually less formal and deal with a narrower range of subject-matter than 'treaties'. There is a general tendency to apply the term 'agreement' to bilateral or restricted multilateral treaties. It is employed especially for instruments of a technical or administrative character, which are signed by the representatives of government departments, but are not subject to ratification. Typical agreements deal with matters of economic, cultural, scientific and technical cooperation.

Question 62

Convention, example

Answer 62

Generally used for formal multilateral treaties with a broad number of parties. Conventions are normally open for participation by the international community as a whole, or by a large number of states. Usually the instruments negotiated under the auspices of an international organization are entitled conventions.