Section 2

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Those who are not entitled to purchase as laid down in articles 1562, 1564, 1565 and 1566. SUB - SECTION IV RIGHTS AND DUTIES OF OWNERS AND HOLDERS OF EMPHYTEUSIS Article 1670 – Requirement of registration – The absolute owner is duly bound to register the emphyteutic liability so that it produce the effects on third persons and he is entitled to the right to the payment of the fees due to him in terms of articles 880 and 881. Article 1671 – Failure to pay fee – On default of payment of fee (“foro”) the absolute owner even if he stipulates otherwise has no other right except that of recovery of fees in arrears and interest for default. Article 1672 – Right of recovery of the property – If the holder damages the property to the extent that its value is no longer equivalent to the principal amount corresponding to the fee 351 (“foro”) plus 1/5th (one fifth), the absolute owner may recover the property without any compensation to the holder. Article 1673 – Rights of the holder – Holder of emphyteusis shall have the right to enjoy the property and dispose of the same as his own subject to the restrictions imposed by law. Article 1674 – Violation of the rights of the holder – If the holder is disturbed in his rights by third person who disputes its ownership and the validity of the emphyteusis, he shall sue the owner of the property if he wants to recover from him the losses and damages that he may suffer in the case of eviction. Article 1675 – Encumbrances and taxes over the emphyteusis – The holder shall be liable for all the encumbrances, taxes, dues and duties which may be imposed on the property or on the person on account of the property. § Sole paragraph - The owner should however be liable to the holder for the dues corresponding to the emphyteutic property. Article 1676 – Right to mortgage and encumber the emphyteutic property – The holder may mortgage and encumber the property with any encumbrances or easements without the consent of the absolute owner provided the mortgage or the encumbrance does not amount to the value of the property corresponding to the foro plus 1/5th (one fifth). § Sole paragraph - The owner of the property shall have the right of preference in the case of leases for a period exceeding 10 years. Article 1677 – Right to gift or exchange the emphyteutic property – The holder may freely gift or exchange the property; but in this case shall inform the absolute owner within 60 days from the date of the transfer. If not, he shall be liable alongwith his assignee for the payment of installments due. Article 1678 – Right of preference in the alienation of the property – If the holder desires to sell or give on payment, the property granted to him on emphyteusis, he shall notify the owner, 352 informing to him the price offered to him or the price for which he proposes to alienate the property and if, within 30 days, the said owner does not exercise his right of preference and does not pay, the holder may proceed with the alienation. § 1 - The holder shall also have the right of preference in case the owner desires to sell the emphyteutic property or give it on payment. For this purpose the said owner shall be subject to the same duties which are imposed on the holder in this article in analogous circumstances. § 2 - The emphyteusis shall stand extinguished in case the right of preference is exercised and payment is made whether by the owner or holder. § 3 - This right of preference is not admissible in expropriation voluntarily done for public utility. Article 1679 - Denial of right of preference to legal person – The provisions of the preceding article shall not be applicable to legal persons who shall not be entitled to the rights of preference; but the transferor shall notify the owner about the transfer so as not to incur the liability mentioned in article 1677. Article 1680 – Indivisibility of preference – In case the emphyteusis covers several properties the owner may not exercise preference in respect of some and reject the others. Article 1681 – Consequences of non notification of preference – If the holder does not comply with the article 1678 the owner may exercise within the time limit stipulated in article 1566, the right of preference taking the property of the transferee for the price for which it was acquired. § Sole paragraph - Identical right shall be available to the holder in circumstances mentioned in § 1 of article 1678. Article 1682 – Attachment of emphyteutic property – If the emphyteutic property is attached for debts of the holder, it may not be put in public auction unless the owner is notified the date of the auction in which he shall have right of preference in case he desires to take the property for the highest bid. Article 1683 – Failure of auction – If the property is put in auction and there is no bidder, the absolute owner if he so desires shall have the right of preference in the adjudication for the value for which the same is to be carried out, for which, within 3 days, from the last date of the auction 353 he will have to declare, that he desires to exercise his right of preference, and also, pay the price of the adjudication within another 3 days from the date from which it is adjudicated to him. § Sole paragraph - This provision is not applicable to those who are not allowed to exercise the right of preference. Article 1684 – Installment in arrears – The absolute owner may not demand the installment in arrears for more than 5 years except upon an acknowledgement debt signed by the holder with two witnesses or fully written in his own hand or attested in a public deed. Article 1685 – Suit for recovery of emphyteutic fees – The suit for recovery of emphyteutic dues shall be by summary procedure. The execution when it falls on assets under emphyteusis may be carried out either on the income or the base property as the owner may desire. Article 1686 – Prescription in relation to emphyteutic leases – Prescription is applicable to emphyteutic leases in the same manner as other immobile assets. Article 1687 – Total destruction of the property – If the property under emphyteutic is totally destroyed or rendered unusable by force majeure or fortuitous circumstances, the contract shall stand extinguished without prejudice of the right of the owner to recover from the holder the value of the “dominium directum” (literally direct dominion i.e. legal, not equitable ownership or nominal ownership of the original owner i.e. absolute ownership) when this falls on insured properties and the loss is as a result of fire. Article 1688 – Right of Reduction – If by force majeure or fortuitous circumstances, the emphyteutic property is destroyed or rendered useless only in part in such a way that its value becomes less than what was at the time of emphyteusis, the holders may apply that the owner reduces the emphyteutic fee or rescind the lease if he opposes the reduction. § Sole paragraph - This provision is not applicable when the destruction is due to fire in insured properties. SECTION II EMPHYTEUSIS OF THE PAST 354 SUB-SECTION I GENERAL PROVISIONS Article 1689 – Emphyteusis of the past - The emphyteuses of the private assets, prior to the promulgation of the present Code, subsisting either by contract or by any other title, are maintained in accordance with respective title deeds, with the modifications established in the present article. Article 1690 – Proof of emphyteusis of the past - The emphyteusis, mentioned in the preceding article, may be proved by all the ordinary means. Article 1691 – Choice of species in which pension is to be paid - Where it is stipulated, that the emphyteutic pension may be paid, in one or other species, it is left to the choice of the emphyteuta, unless there is a declaration to the contrary. Article 1692 – Scaling down of uncertain pension - All the emphyteutic pensions, which consist of unascertained installments, may be made certain, on the application of the emphyteuta. Article 1693 – Laudemium - The laudemium stipulated in the emphyteuses of the past shall be maintained as agreed. Such laudemium is of forty installments, if not otherwise specified in. § Sole paragraph - The obligation to pay the laudemium is on the acquirer. Article 1694 – Provisions applicable to post emphyteuses - The provisions of articles 1661, 1662 and 1663 and of sub-section IV of the preceding section are applicable to the emphyteuses of the past. Article 1695 – Fees in arrears - The installments of emphyteutic pension already accrued at the time of promulgation of the Code, may be demanded despite the provision of article 1684, provided that the demand is made within one year from the date of the promulgation. SUB-SECTION II 355 GRANT IN THE NATURE OF EMPHYTEUSIS Article 1696 – Grants for life before the enactment of the Code - All the grants for life in the nature of emphyteusis existing at the time of promulgation of this Code are declared simple or hereditary and their transmission is governed by the provisions of article 1662 and 1663. SUB-SECTION III GRANTS FOR LIFE TIME AND BY WAY OF APPOINTMENT Article 1697 – Grants for life time - All the grants for lifetime, or by way of appointment for some generations, whether such appointment is free, or restricted or conventional, shall take the nature of grants in the nature of emphyteusis, simple and hereditary in possession of emphyteuta, at the time of the promulgation of the Code, except the provision of subsequent articles. Article 1698 – Grants to appointee with reservation of usufruct - The emphyteusis that at the time of the promulgation of this Code, are in the enjoyment of the appointees or transferred irrevocably, and by authentic instruments, but with reservation of usufruct, shall take the nature of hereditary emphyteusis, when they reach in the hands of the appointees, or in the hands of whom they had been transferred. Article 1699 – Revocable grants - Where the appointment, or transfer made by authentic instrument is revocable, it shall produce effect where the appointer, or transferor has not revoked it. Article 1700 – Regulation of grant in article 1698 - The aforamentos, referred to in article 1698 shall continue to be governed by the legislation prior to the enforcement of this code, until in accordance with the same article they do not take the nature of aforamento. SECTION III SUB EMPHYTEUSIS 356 Article 1701 – Abolition of sub emphyteusis – Contracts of sub emphyteusis or transfer of emphyteusis are prohibited for the future. Article 1702 – Regulation of past sub-emphyteuses - The contracts of sub-emphyteusis of the past shall continue to subsist, and they are governed by what is provided in articles 1689 to 1695, in relation to the emphyteusis of the past, with the following modifications. Article 1703 – Right of preference in sub-emphyteuses - Where any property under sub- emphyteusis is sold or transferred for payment of debt, the right of pre-emption is fully available to the holder of the “dominium directum” (owner of the property) and only when he does not want to avail of it, to the emphyteuta. § 1 - Where the sale or transfer for payment is of the “dominium directum”, the right of pre- emption is available to the sub-emphyteuta and only where he does not want to avail of it, it will pass to the emphyteuta. § 2 - In case of sale or transfer for payment of the emphyteutic domain, the right of pre-emption firstly is available to the holder of the “dominium directum”, and only when he does not want to avail of it, it shall pass to the sub-emphyteuta. Article 1704 – Notice of pre-emption - In order to give effect to the provision of the preceding article, the sub-emphyteuta who wishes to sell or transfer for payment of debt the sub- emphyteutic property, besides being bound to give the notice to the holder of the “dominium directum”, of the soil in terms of article 1678, shall, when the latter does not avail of the right of pre-emption, give similar notice to the emphyteuta in the same manner. § Sole paragraph - Identical procedure will be followed by the holder of the “dominium directum”, of the soil, in case of sale of the “dominium directum” or its transfer for payment of debt, and by the emphyteuta, in case of alienation of the emphyteutic dominium by any of the aforesaid forms. 357 Article 1705 – Laudemium 47 in sub-emphyteusis - In case of alienation of the sub-emphyteusis, there shall be observed in respect of the “laudemium”, whatever, with the concurrence of the holder of the “dominium directum”, is stipulated in the contract of emphyteusis. CHAPTER XIV CENSUS WITH RESERVATION48 Article 1706 – Census with reservation49 - An assignment with reservation arises when any person transfers a property, with a simple reservation to pay annually certain pension or installment, which is to be paid by the fruits and income from the property. Article 1707 – Abolition of census with reservation - In future, the contracts of census with reservation are prohibited; the contracts where such a stipulation is found shall be deemed to be emphyteuses. Article 1708 – Rights of preference in past assignments – To the past contracts of assignment with reservation, the provisions of articles 1678, 1679 and 1681 are applicable. Article 1709 – Doubts whether contract is of assignment or emphyteuses - Where there is doubt as to the nature of the contract, whether it is assignment or it is emphyteusis, it shall be presumed to be of census (assignment), until otherwise proved. CHAPTER XV COMPROMISE50 47 Laudemium is a kind of premium paid to the land owner by a successor lessee when he takes over from the earlier lessee. 48 Articles 1706 to 1709 - These are peculiar to the Portuguese Law. 49 See footnote under Article 1644. 50 Articles 1710 to 1721 - regarding Compromise / Settlement of disputes in or out of Court, would now be governed by Civil Procedure Code, 1908 and other legislation regarding settlement of disputes, Alternative dispute resolution, Conciliation, Mediation etc. 358 Article 1710 – Compromise - A compromise is a contract by which the parties prevent or put an end to a dispute, one of them or both giving up part of their claims or promising one to the other something in return for admitting the contested claim. Article 1711 – Types of compromise - The compromise may be before the court or out of the court; depending upon whether a suit is pending or not. Article 1712 – External form of compromise out of court - The compromise out of the Court may be made by a document in writing, private or public, or by record of conciliation; but when the subject matter is immovable rights, it may be done only by a public deed or by proceedings of conciliation. Article 1713 – External form of compromise in court - The compromise before the court shall be done by way of public deed annexed to the file or recorded in court proceedings. Article 1714 – Judgement on compromise in court - The compromise before the court shall have effect only after the judgement confirming it has become final. Article 1715 – Extension of the effects of compromise - Whoever makes a compromise in respect of his own right and acquires thereafter, by any form, other similar right, is not bound, in respect of the latter, by the previous compromise. Article 1716 – Compromise made by only one of the interested parties - The compromise made by one of the co-interested party does not bind others, nor can it be relied upon by them. Article 1717 – Exception in State cases - The compromise over a civil dispute, arising from criminal act, does come in the way of action instituted by the Public Ministry. Article 1718 – Effects of compromise - The compromise between the parties has the same effect as the decision of the court. 359 Article 1719 – Cancellation of compromise - The compromise may not be rescinded on account of any mistake of law; but it may be rescinded on account of mistake of fact, or account of fraud or coercion, as per the general provisions of law. Article 1720 – Discovery of new documents - The discovery of new title deeds does not invalidate a compromise made in good faith; except in case it is found that one of the parties to the compromise did not have any right over the object of the compromise. Article 1721 – Compromise of general nature over diverse objects - The provision of the last part of the preceding article does not have application to the general compromises that embraces diverse objects, whenever in respect of part of them the compromise may subsist. CHAPTER XVI REGISTRATION OF TRANSFERS OF IMMOVABLE ASSETS AND IMMOVABLE RIGHTS Article 1722 – Registration of transfer of immobile assets and rights - All the transfers of immobile assets or rights are subject to registration, which is regulated by the provisions of article 949 onwards. 360 BOOK III RIGHTS ACQUIRED BY MERE ACT OF ANOTHER OR ACQUIRED BY OPERATION OF LAW 361 362 BOOK III RIGHTS ACQUIRED BY MERE ACT OF ANOTHER OR ACQUIRED BY OPERATION OF LAW TITLE I MANAGEMENT OF BUSINESS51 Article 1723 – Management of business - Whoever without authority and voluntarily intermeddles in the management of the businesses of another, becomes liable to the owner of the said businesses and those with whom he has contracted in his name. Article 1724 – Taking advantage of the benefits of the management - Where the owner or one to whom the business belongs, ratifies the management and wants to make use of the conveniences and benefits arising therefrom, shall be bound to compensate the manager for the necessary expenses he has incurred and also loss suffered on account of the said management. Article 1725 – Non-ratification of management - Where the owner does not ratify the management and such management had no purpose of making any profit but to prevent manifest losses, nevertheless, he shall compensate the manager of all the expenses incurred by him with these intentions. Article 1726 – Effects of ratification of the management - Ratification of management shall have same effect as express agency. Article 1727 – Disapproval of the management - Where the owner disapproves the de facto management, the de facto manager shall restore back the things at his cost, in the same state they were before and shall pay compensation to the owner for the loss caused to the extent of the difference. 51 Articles 1723 to 1734 - This would today be regulated by specialized legislation on the subject. 363 Article 1728 – Impossibility to return things in their original form - In the event it is not possible to restore the things fully to the previous state and benefits accrued exceeds the damage caused, the owner shall take on his account both the benefit and losses. Article 1729 – Non ratified management, the benefits of which do not exceed the losses - Where the benefits do not exceed losses, the owner may compel the de facto agent to take the business for himself and demand from him due compensation. Article 1730 – Acquiescence by the owner of business - Where the owner has knowledge, of the de facto management and does not object to the same till the end, he is deemed to have given consent, but incurs no liability to de facto manager, if there is no actual benefit. Article 1731 – Management against the will of the owner - Whoever interferes in the business of another against latter’s wishes, shall be liable for all the losses caused including accidental losses, if he does not establish that the damages would have occurred even if there was no intervention of the de facto manager, but when the owner wants to make use of the de facto management, article 1724 will be attracted. Article 1732 – Accounts of the management - The de facto manager shall render exact and faithful accounts of all his acts and income and expenditure of the de facto management. Article 1733 – Duty to conclude the management started - Whoever intermeddles in the business of another shall be bound to conclude the same, if the owner does not direct the contrary. Article 1734 – Management of business connected with that of the manager - Whoever intermeddles with the business of others, because the latter are interlinked with his own and which cannot be separated one from another, shall be deemed to be partner of the other whose business is managed jointly with his own. § Sole paragraph - In such case, the owner is bound to pay in proportion of benefits received. 364 TITLE II SUCCESSIONS52 CHAPTER I PRELIMINARY PROVISIONS Article 1735 – Succession: testamentary and intestate- Any person may, upon the death of another, succeed to all his assets, or to a part of them as much by, disposition of his last will, as by virtue of the operation of law. In the first instance testamentary succession takes place and in the second statutory succession.  Corresponds to Sections 3 & 4 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1736 - Concept of heir and of legatee- Heir is one who succeeds to the totality of the inheritance, or to a part thereof without the valuables or the object being specified. Legatee is a person, in whose favour the testator disposes, specified valuables or objects, or a specific part thereof.  Corresponds to Sections 5, 122 & 126 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1737 - Content of inheritance - Inheritance comprises of all the assets, rights and liabilities of the deceased, which are not merely personal or excluded by disposition of the said deceased, or by the law.  Corresponds to Section 6 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1738 - Simultaneous Death - Where the deceased and his heirs, or the legatees, die in the same accident, or on the same day, and it is not possible to ascertain which of them died first, it shall be taken that all died at the same time, and the transmission of the inheritance or of the legacy shall not take effect between them.  Corresponds to Section 7 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 52 The subject of Succession and Inventory Articles 1735 to 2166 is now dealt with under the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 365 CHAPTER II TESTAMENTARY SUCCESSION SECTION I WILLS IN GENERAL Article 1739 - Concept of Will – A Will is an act by which a person disposes of all or a part of his assets, to take effect after his death.  Corresponds to Section 196 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1740 - Personal nature of Will - A Will is a personal act, which may not be made through an attorney, nor may be left to the discretion of another person with regard to the appointment of heirs and legatees, the object of the inheritance or the execution or non-execution of the said Will. § Sole paragraph – The testator may, however, entrust to a third party the distribution of the inheritance when he institutes a certain class of persons.  Corresponds to Section 197 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1741 - Will as per instructions - A disposition shall have no effect if it is dependent on instructions or recommendations made to another person in secret, if it refers to non-authentic documents or to documents that were not written and signed by the testator, or if it is made in favour of uncertain persons who cannot be ascertained by any means.  Corresponds to Section 198 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1742 - Disposition in favour of relatives of the testator - A disposition made in favour of the relatives of the testator or of another person, without naming them, shall be deemed to have been made in favour of the nearest relatives of the testator or of the person indicated, according to the order of legal succession.  Corresponds to Section 199 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 366 Article 1743 - Impossible conditions - The testator may dispose either purely and simply or subject to certain conditions, as long as these are neither absolutely nor relatively impossible, nor contrary to the law. § Sole paragraph – Conditions which are absolutely or relatively impossible, or contrary to the law, are considered as not having been written, and shall not cause detriment to the heirs or the legatees, even if the testator stipulates otherwise.  Corresponds to Section 200 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1744 - Performance of condition obstructed by third party - If the fulfillment of the condition is prevented by someone with an interest in its non-fulfillment, it shall be considered as having been fulfilled.  Corresponds to Section 201 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1745 - False cause - The mention of a false cause shall be deemed as not written unless it can be gathered from the Will itself that the testator would not have made such disposition, if he had known the falsity of the cause.  Corresponds to Section 202 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1746 - Cause contrary to the law - The mention of a cause, whether false or true, contrary to law, shall always render the disposition null and void.  Corresponds to Section 216 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1747 - Institution subject to term - The fixation of time as to when the effect of the institution of the heir should commence or cease, shall be deemed as not written.  Corresponds to Section 203 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1748 - Violence, deception and fraud - A Will extorted by violence or obtained by deception or fraud, shall be null.  Corresponds to Section 204 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 367 Article 1749 - Disqualification of heir or legatee - Whoever, by deception, fraud or violence, prevents anyone from making his last disposition, shall be punished as per the penal law; and being an intestate heir, he shall further be deprived of his right to the inheritance which shall devolve upon those persons who would be entitled thereto if the said heir did not exist.  Corresponds to Section 204 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1750 - Knowledge of coercion against one who intends to make a Will - The administrative authority, who comes to know that someone is preventing another from making a Will, shall, without delay, present itself along with a Notary Public and the necessary witnesses, at the house of the person prevented; and after verifying the existence of coercion, shall cause to write the necessary report to be forwarded to the Public Ministry, and shall set at liberty the said person, to make his Will.  Corresponds to Section 205 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1751 - Insufficient expression of the Will of the testator - The Will, wherein the testator has expressed his wish not fully and clearly, but only by signs, or monosyllables in answer to questions put to him, shall be null and void.  Corresponds to Section 206 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1752 - Effects of the nullities declared by law - The testator cannot prohibit the Will from being challenged, in cases where there is nullity declared by the law.  Corresponds to Section 207 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1753 - Prohibition of joint Wills - Two or more persons shall not make a Will in the same instrument whether for their common benefit, or for the benefit of a third person. § Sole paragraph - This paragraph does not apply to joint Wills, which were already made bearing authentic date at the time of the promulgation of this Code, and which have not been revoked.  Corresponds to Section 208 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1754 - Revocability of the Will - The Will may be freely revoked, fully or in part, by the testator who shall not renounce such right. 368  Corresponds to Section 209 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1755 - Express and implied revocation - The revocation of a Will, fully or in part, may however be made only, by another Will with the solemn legal formalities, or by public deed or by virtue of the fact that the testator has alienated, before his death, the bequeathed objects. § Sole paragraph - Where the revocatory Will contains also disposition of assets, and this part, is annulled for want of some solemn formality, the revocation shall nevertheless, have its effect, if the Will can be treated as a public deed.  Corresponds to Section 209 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1756 - Tacit revocation- The making of the second Will, without a mention of the first, revokes the first only to the extent the second is contrary to the first. § Sole paragraph – Where there are two Wills bearing the same date, there being no possibility of ascertaining which of them is the later one, and they are mutually contradictory, such contradictory dispositions shall be deemed as not having been written in either of them.  Corresponds to Section 210 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1757 - Subsistence of the effect of revocation of a Will which lapsed - The revocation shall take effect, even though the second Will lapses due to the incapacity of the heir or of the legatees newly appointed, or due to the renunciation by the former or the latter.  Corresponds to Section 211 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1758 - Revival of the Will which is revoked - The earlier Will shall, however, regain its force, if the testator, having revoked the subsequent one, declares that it is his wish that the first should subsist.  Corresponds to Section 212 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1759 - Lapsing of testamentary provisions - The testamentary dispositions lapse, and have no effect, in relation to the heirs or to the legatees: