ACCT7014 BUSINESS LAW

THE LAW OF
PERSONS
Materials:
• Macau Civil Code

• Jorge Godinho, Macau Business Law and

Legal System, LexisNexis, Hong Kong,
2007, pages 42‐48 (§22‐28)
 Key concepts:

• Legal personality: who is a person, for the law?

• Legal capacity: what is the range of a person’s
rights and obligations?
• Business capacity: how can persons exercise their
rights and obligations?
Legal Personality
• legal personality is
the possibility of
being holder of
rights and
obligations
• A person is a centre
of decision and
responsibility
Legal capacity

• Is a measure of the rights and

obligations that a person at law can
have
• Is a quantitative concept: gives the range
of rights and obligations that a person
may have
Business capacity
• Is the possibility of exercising the
rights and obligations
• The person who has full business
capacity does not need to be assisted by
a legal representative nor does need
any permission from other person
Legal personality and capacity:
individuals
• All human persons (individuals)
have legal personality from birth to
death
– gained immediately upon birth
– definition of death provided by
science
 Article 63 CC
(Beginning of personality)
1.Personality is acquired at the moment of complete birth with life.

Article 65 CC
(End of personality)
2. Personality ends with death.
 Legal personality and capacity:
individuals
• but individuals may not have full legal capacity or
business capacity, for a number of reasons:
– Nationality/citizenship
– Residence
– Age
– Interdiction and inability
Article 64 CC
(Legal capacity)
Except if there is a legal provision to the contrary, persons can be subject of any
legal relations: their legal capacity consists in this.
Nationality or citizenship
 Nationality
– Some rights are reserved to nationals, and are
not granted to foreigners
– Restrictions to legal capacity on the grounds of
nationality relate mostly to public law
– Nationality does not generate restrictions in the
field of private law
Residence (MSAR)
 Residence (MSAR)
• Important distinction in Macau between residents and non‐residents; the
concept of resident performs most of the functions that are usually associated
to the concept of citizen
• The Basic Law (art. 24) distinguishes between permanent residents and other
residents
• In the field of private law, the rule is that non‐residents are treated in the same
manner as residents
• In principle, the status of non‐resident does not cause any lack of legal capacity
• The Commercial Code states that ‘A commercial entrepreneur can be any
individual, resident or non‐resident, or collective person, with a registered office
in the Territory or not, endowed with civil capacity, without prejudice to
special provisions’ (art. 5 CCom).
Age: minors

• Minor: a person who has not completed 18

years
• A minor can achieve full business capacity
before the age of 18 through marriage, which
can only take place after completing 16 years of
age
 Article 111
(Minors)
A minor is whoever has not completed 18 years of age.

Article 112 (Incapacity

of minors)
Except if there is a legal provision to the contrary, minors lack
capacity to the exercise of rights.

Article 113 (Overcoming

incapacity of minors)
1. The incapacity of minors is overcome by parental power and,
subsidiarily, by guardianship, as provided in the respective places.
 Minors
• Consequence: general lack of business capacity:
– Minors, as a rule, cannot exercise any rights or
obligations by themselves
•Minors have to be assisted by other person or
persons, the representatives of the minor (as a
rule, the parents)
• Consequence of the lack of business capacity:
– any legal act practiced (by the minor alone) is
voidable.
– However, in certain cases the legal acts of minors
are fully valid.
 Article 114 CC
(Acts of minors
voidable)
1. Without prejudice to subparagraph 2 of article
280, the legal transactions concluded by a minor may
be voided:
[the provision then clarifies by whom and until
when]
 Article 116 CC
(Exceptions to incapacity of
minors)

1. Besides others mentioned in the law, the following are exceptionally valid:
a) Acts of administration or transfer of goods that a person at least 16 years of age has acquired by his
work;
b) Legal transactions normal to the daily life of a minor, which he can grasp by his natural capacity, and only
involve expenses, or transfers of assets, of small amounts;
c) Legal transactions relating to the job, art or profession that a minor has been authorized to exercise by his
legal representatives, or the acts practiced in the exercise of such job, art or profession.
2. Only assets that a minor can freely transfer can be executed in connection with acts relating
to the job, art or profession of the minor, and for acts practiced in the exercise of such job,
art or profession.
Interdiction and inability
• Interdiction
– May apply to persons who, by reason of mental illness,
deaf‐muteness, or blindness, are not able to take care of
themselves
– Applies to persons who have reached majority
– Must be declared in court
– Has the same legal effects has minority
• Inability
– Refers to cases not so serious as to justify
interdiction
Bankruptcy
• Does not generate a lack of legal
capacity
• See arts. 1095(1) and 1097(1) CPC
 Commercial capacity

• general rules apply to the field of

commercial law
• The Commercial Code clarifies that persons
who lack business capacity cannot exercise a
commercial enterprise (art. 6 CCom), and
therefore need to be represented; no
exceptions.
Legal personality of non‐individuals
• Legal or collective persons:
associations; foundations; companies
• is a creation of the law (a technical legal
mechanism)
• results automatically from the law and not
from a case‐by‐case decision
• Generally, an administrative permission is
not required; this is in accordance with the
freedom of association guaranteed by the
Basic Law
 Types of legal persons
• associations: based on a group of persons
who jointly pursue non‐profit activities
(art. 154 CC)
• foundations: based on certain assets that
are to used in non‐profit activities
• companies: based on a group of persons
who jointly conduct a certain economic
activity for profit (art. 184 CC)
Types of companies
• Private companies
• Public companies
• General partnerships
• Limited partnerships
 Agency and representation
• Where a person acts on behalf of another
• Principal / agent
• the legal effects of the acts practiced by the agent on behalf of
the principal, namely contracts agreed with third parties, take
place in the legal sphere of the principal and not of the agent
• Transaction of the agent with himself are voidable (art. 254 CC)