XVIIth International Congress of Comparative Law
16-22 July 2006, Utrecht, The Netheland
- The Boundaries of property rights
Regional Report
Macau Special Administrative Region, People’s Republic of China
Reporter:
Tong Io Cheng
Assistant Professor, University of Macau
Questionaire:
1) In you legal system, can all corporeal things be object of property right? Which
corporeal things cannot be object of personal property (res extra commercium)?
Are animals considered as “things”?
First of all, I would like to point out that the first question is, in fact, a very difficult
question, or even a question impossible to give an answer, because it presupposes an
accurate definition of the concept “property right”, and this concept might not even
exist in our legal language. Nevertheless, if we are allowed to start our discussion with a
less rigid approach (naturally, such an approach shall also be less accurate and less
technical), we may consider the term “property right” as an equivalent to “Real Rights”
(Direitos Reais)1, a nuclear concept of our civil law.
Although the concept “Real Rights” is commonly recognized 2 as the core concept
by which the formal structure of Macau Civil Code was developed, similar to the case
of Portugal, the Code itself never bothered to give it a definition. Moreover, one may
easily notice that, in the book Law of Things in the Macau Civil Code, there is no such a
section called “general part”. This book starts with possession and then ownership.
What usually considered the general rules and principles of real rights are either treated
in the section of ownership or scattered around other parts of the Code. We believe such
1
Macau Civil Law is a codified system which belongs to the Romano-Germanic family (about the
criteria of such a classification, see K. Zweigert & H. Kötz, An Introduction to Comparative Law,
Translated by Tony Weir, 3rd Edition, Oxford, 1998, pg. 63 ss). Its Civil Code formally divides into five
books: “General Part, Law of Obligations, Law of Things, Law of Family, Law of Succession”.
2
See e.g. João de Matos Antunes Varela, Das Obrigações em Geral, Vol. I, 8ª Ed., Almedina, Coimbra,
1994, pgs. 34-35.
a mismatch owes to the cultural nature of legal discussion.
The discussion of “what is the object of real rights3” itself is such an old topic that
we can consider it part of a legal culture originated from the Roman law, and it is not a
question without practical importance. Actually, it is through the concept of object (as
the literal translation of objecto in Latin languages) that the boundaries of property right
are delimited.
In Roman law, ownership and possession were considered powers act upon
corporeal things4. This perception in some way implies that there is a correlation
between the concept “things” and the range of ownership and possession. During the
process of succession of Roman law, the scholars of jus-naturalism amplified the
concept of “things”, so that it could include not only corporeal things but also
incorporeal things5. The consequence of this conceptual development was: there was a
tendency in the 19th century legal literature and legislation that the regulation of
intellectual property being assimilated to the traditional institution of ownership.
However, such a tendency developed by the jus-naturalism was not adopted by the
German Civil Code. The later restricted the concept of things to corporeal things, and as
a consequence, the regulations of real rights in this Code are only applicable corporeal
things.
The German orientation of excluding the incorporeal things from the concept of
things and consequently, from the regulation of “real rights”6 had indeed re-ignited a
debate throughout the twentieth century among legal scholars in various European
countries. Many Italian scholars inclined to the German orientation while French and
Spanish literatures generally remained loyal to the tradition of jus-naturalism7. As to the
case of Portugal is concerned, its Civil Code of 1966 formally adopted the Pandekton
system, but in fact, the tradition of jus-naturalism was never given up. Additionally, the
information brought out by the legal provisions (mainly art. 202, 1302 and 1303 of the
1966 Portuguese Civil Code) helped little to clarify the orientation of the legislator. This
situation brought to a split of opinions among legal writers. Some favored to the
restriction of real rights to corporeal things8, while others insisted the concept of things
should include incorporeal things9.
As far as Macau is concerned, we must say that the current rules about this topic
adopted by the Macau Civil Code are products of a continuation and summary of the
3
or property right as indicated by the questionnaire.
See Max Kaser, Direito Privado Romano (Portuguese translation), Lisboa, Gulbenkian, 1999, pg. 121.
5
See Gerhard Wesenberg & Gunter Wesener, Historia del Derecho Privado Moderno en Alemania y en
Europa (Spanish translation), Valladolid, Editorial Lex Nova, 1988, pgs. 233, 234.
6
Now as a new topic extended from the Roman discussion of ownership.
7
See Rui Pinto Duarte, O Ensino dos Direitos Reais – Propostas e Elementos de Trabalho, Lisboa, 2004,
pg. 28.
8
See Oliveira Ascensão, Direito Civil – Reais, 5ª Ed., Coimbra Editora, 1993, pg. 38.
9
See Orlando de Carvalho, Direito das Coisas, Coimbra, Centelha, 1977, pg. 190.
4
discussions occurred in Portugal throughout the last quarter of the twentieth century.
According to the provisions of the Macau Civil Code (art. 1226), “only things can
be the object of ownership ”; whereas the notion of “things” is defined in art. 193, of the
same Code, which provides: “Thing is said to be any autonomous reality, external to the
human body, with utility and susceptible of being the object of juristic relation under the
title of dominium.”
Literally, the above cited text adopted by the Macau Civil Code is quite different
from that of its predecessor, the Portuguese Civil Code of 1966, which was applicable in
Macau until December 1999.
In the Portuguese Civil Code, by definition of article 1302 (corresponding to the
cited article 1226 of Macau Civil Code), “only corporeal things can be object of
property right…”. Nevertheless, by using the various arguments commonly used in the
interpretation of Law (namely, historical and systematic interpretation), recent legal
literatures generally refused to recognize this rule as the confining rule about the object
of ownership10.
As a reflection of academic contributions11, the Macao Civil Code reformulated
both the rules defining the notion of things and the object of ownership. In Article 193
(1), instead of saying “Things are anything which can be the object of juristic relation”,
added four requirements: namely, being autonomous, external to the human body, with
utility, and susceptible of being the object of juristic relation in the title of property right.
And in article, 1226, at least literally, the Code no longer confines the object of
ownership to “corporeal things”, but “things” in general, regardless of its nature of
being corporeal or incorporeal.
The intentions or objectives of the legislation are clear: on one hand, expand the
concept of “things” to the extent that not only corporeal things are included as the object
of ownership; one the other hand, better define the concept of things by providing some
concrete requirements. Nevertheless, it seems that not all the predetermined objectives
are achieved, at least at the point of defining the conditions or requirements of being a
“thing”, the two rulings are susceptible of making recurring definitions which turn the
issue into a vicious circle: article 1226 says things are the object of ownership, which
points the question of what is the object of ownership to the definition of things,
however, the definition of things in turn points back to the definition of object of
ownership by saying that one of the condition of being a “thing” is its susceptibility of
being an object of “dominio”12. Therefore, we would rather believe that the concept of
See Orlando de Carvalho, Ibid; more recently, see Rui Pinto Duarte, O Ensino dos Direitos Reais –
Propostas e Elementos de Trabalho, Lisboa, 2004, pg. 29.
11
It should be considered an intention to remove the doubts of interpretation already detected during
academic debates.
12
A term hardly seen throughout the whole Code, but has its root from Roman law, which used it almost
as a synonym of ownership. About the meaning of dominium, see Max Kaser (translation by Rolf
10
things as well as the “object” of ownership remained an open concept even in the
Macau Civil Code.
Up to this point, we have shown that the concept of things in the Macau Civil Code
is broad enough to cover both corporeal things and incorporeal things. Nevertheless, in
order to fully answer the first question, we need more analysis, since the question asked
whether “all corporeal things” can be object of property rights.
Although we have conclude that the descriptions set out by the provisions of the
Macau Civil Code are not clear enough to serve as criteria for us to identify accurately
what are things and what are not things, we must admit that, as far as this particular
point of the question is concerned, the above cited provision of the Code gave enough
hints for an answer: article 1226 provides that “only things can be the object of
ownership”, then article 193 (1) declares that things must be “…. susceptible of being
the object of juristic relation under the title of dominium.” In any case, we would insist
that the formula used by this article seems recurring. Nevertheless, if we conjugate
article 193 (2) and (3), it is not impossible to conclude that the real function of this
formula is to delimit the boundary of personal or private property, or more accurately, to
exclude res extra commercium from being the object of private ownership or real rights.
Up to here, we believe we already have enough information to answer the first
question, but the answer shall not be strict forward, because if we put together the first
and the second question, we may discover that these questions imply a presumption
(that res extra commercium are things13) which is quite ambiguous in front of or our
Civil Code.
Therefore, our answer to the first question is: In case res extra commercium is
considered a thing (corporeal), then, not all corporeal things can be object of
property rights; but on the other hand, not only corporeal things can be object of
property rights. In any case, our law does not consider res extra commercium an
object of real rights or private ownership.
Once the first question is clarified, the answer of the second question shall be easier.
We notice that this question was formulated in an alternative way, i.e., “Which corporeal
things cannot be object of personal property (res extra commercium)? In another word,
“res extra commercium” is equivalent to “corporeal things that cannot be object of
personal property”. As a result, if we could explain clearly what is meant by “res extra
commercium” and delimit its coverage, the question is almost automatically answered.
Since this is a regional report, our point of reference shall always be a particular positive
Dannenbring), Roman Private Law, 4th Edition, 1984, University of South Africa, pg. 115; Pietro
Bonfante, Istituzioni di Diritto Romano (Chinese version translated by Huang Feng), CUPLPRESS, 1996,
pg. 196.
13
Max Kaser has indicated three possible meaning of things, among which, res extra commercium is
included. See Ibid, pg. 100.
law, which is the Macao Law.
As to this particular question, the relevant provision in the Macau Civil Code is still
article 193, but clause (2), which rules that “Any things that cannot be the object of
private rights, such as those that are found in public dominium, are considered things
outside private commerce.”
It may be quite surprising to find out that the formulation of this provision in the
Macau Civil Code is highly correspondent with the formulation of our question two. For
example, we can find expressions like: “rex extra commercium” that corresponds to
“things outside private commerce”; “things that cannot be personal property” that
corresponds to “things that cannot be object of private rights” etc.. And we believe the
coincidence traces back to a common legal culture: the Roman law. However, it is just
because of this that turned the question a difficult one: generally, a concept derived from
a rich culture is difficult to define.
The above mentioned expressions either used by the questionnaire or by the Macau
Civil Code are actually expressions common in Roman text or the discussions of Roman
law. The category “res extra commercium”, which modern Romanists describe as
“things could not be object of private right”14, has variable content from time to time
(but normally include running water, the sea, the sea shore, rivers etc 15.). It was derived
from the category “res extra patrimonium”, developed by Gaius. Later, the Instituciones
of Justinian subdivided the category into “res humani iuris” and “res divini iuris”.
While within the former, further divided into “res communes omnium” and “res
publicae”, and the latter, “res sacrae”, “res religiosae” and “res sanctae” 16 . It is
believed that such classifications can trace back to the Roman property system of “ager
publicus”17.
By that, we can easily see that the formulation of article 193 (2) of the Macau Civil
Code is closely link with the discussion of Roman law. Nonetheless, regardless the
origin of this text, we must say that it is again an open concept, because the law just
established a equivalence between “things that cannot be the object of private rights”,
“things outside private commerce”, but failed (or deliberately not) to establish any
criterion for us to distinguish what are “things that cannot be the object of private
rights” and what not. However, by this, we shall not easily come to the conclusion that
the said formula is totally empty, because it has, on the other hand, employed the
concept of “public dominium” (we believe it derived from the Justinian classification of
14
Max Kaser, Ibid, pg. 100.
See R.W.Lee, The Elements of Roman Law, Sweet & Maxwell, 1956, pg.109.
16
In brief, see Max Kaser, Ibid, pg. 100-101. For a more detailed exposition of the above classification,
see Ana Raquel Gonçalves Moniz, O Domínio Público – O Critério e o Regime Jurídico da
Dominialidade, Almedina, 2005, pg. 24. It should be noted that the above classification system is also not
exclusive, there are other similar classifications with slight difference, see for example, R.W.Lee, The
Elements of Roman Law, Sweet & Maxwell, 1956, pg.109.
17
Ibid, 17-23.
15
“res publicae”) to denote, or help us to identify some of those possible cases of “res
extra commercium”.
On the other hand, comparing with the Portuguese Civil Code, the Macau one has
ventured a step further as to list out non-exhaustively the major types of things under
public property, in its article 193 (3), namely:
a) roads and beaches; b)channels, ponds and courses of water suitable for
navigation or floating use, as well as the bed of the those waters; c)the air layers above
the recognized limit of the right of ownership or right of superficies; d)mines, origins of
mineral waters with medical values, subterranean natural caves existing in subsoil, with
exception of the rocks, normal soils and other materials usually used in construction;
e)lands and other things classified as such by the legislation.
Therefore, in conclusion, we would answer the second question as the following: a)
according to our law, there are still spaces for the legislator to further specify what
are things that cannot be object of private rights (or property right); b) in
particular cases, the judiciary (judges) is allowed to determine whether a corporeal
thing is the object of property rights; c) the things under public property listed in
193 (3) are surely things that cannot be object of private rights, but the list is not
numerus clausus, there are other possible types of thing under public property, and
the rules of public property is defined by special legislation, normally of
administrative nature.
Now we come to question three: As to whether animals are considered as “things”,
and our answer shall be no other but Yes!
Although the Macao Civil Code does not declare in an explicit way that animals are
considered as things, it also does not contain any clauses that grant a treatment or
protection to animals more favorite than being things.
On the contrary, there are a number of provisions which to certain extent confirm
the legal status of animals being “things”. For example, when article 1243 of the Macau
Civil Code defines which are the “things” susceptible of occupation 18, animals are
included (the provisions following article 1243, namely, articles 1244, 1245, 1246 and
1247, further strengthen such an idea of animals being things); article 204 consider the
suckling of animals as the fruits of things, etc..
1.1 Which corporeal things are object of personal property, collective property,
public property?
18
Occupation is one of the ways to acquire ownership. In another word, animals are admitted by law as
the object of ownership.
Viewing from an abstract and theoretical aspect, I would say the trinomial
distinction of personal property, collective property, and public property is not familiar
with us. At least, the concept “collective property” in contrast to “personal property”
and “public property” is not usual in the legal discussion of Macau. Our law protects
private ownership from the constitutional level (article 6 of the Macau Basic Law),
regardless of the owner being private entities or public entities.
And in case the category of “collective property” is taken away from this question,
then I believe the description we made in the previous paragraph already gave an
answer: in principle, all things (including corporeal things) meeting the
requirements set forth by article 193 are object of personal property; corporeal
things being object of public property are those listed article 193 (3) or so classified
by law.
Nevertheless, if the intention of the question is more on the empirical aspect or,
simply, going after the possible types of titles over land, then the following information
might be useful.
In Macau, the most important legal rules regulating this problem of land title is the
Land Law (Lei de Terras), or Law no. 6/80/M, dated the 5th of July, 1980 (This Law
has been successively revised during the past two decades by a number of Laws,
Decree-Law, Dispatch and Administrative regulations etc., namely,
Regulamento
Administrativo n.º 16/2004, about the method determining the amount of the premium of grant;
Despacho n.º 69/GM/98 , Portaria n.º 164/98/M , Decreto-Lei n.º 26/96/M, Lei n.º 2/94/M,
Portaria n.º 219/93/M, Lei n.º 13/91/M, Lei n.º 8/91/M, Decreto-Lei n.º 78/84/M, Decreto-Lei
n.º 51/83/M, and Lei n.º 8/83/M).
The legal rules determining the classification of lands
title in Macau are included in the Chapter One of this Law, consisting altogether 9
articles (the texts in force are the result of several revisions).
According to the provision of article 1, the title of lands in Macau are classified as
lands pertaining to the public property of the MSAR, lands pertaining to the
private property of the MSAR, and lands of private ownership. We believe the
concept of private ownership is somewhat common to western lawyers and a thorough
discussion involves detailed historical and dogmatic analysis which we are not in the
condition to do in this paper, therefore, the following exposition shall only concentrate
on the two kind of special titles ruled by the Macau Land Law:
i) Lands pertaining to the public property of the MSAR
We have already shown that how the Civil Code describe public property.
It should be noted that on one hand, even lands pertaining to public property are
available for temporary private use or occupation through special license (see article 3
of Land Law); and on the other hand, lands pertaining to public property could also be
turned into lands pertaining to the private property of the MSAR by force of legislations.
That is to say, the status of lands being public property of the MSAR is not permanent it
may be changed, after certain procedure, into other status when the Government has the
need.
ii) Lands pertaining to the private property of the MSAR
According to our law, the range of “lands pertaining to the private property of
MSAR” is described under a residual method through a medium concept: “lands
without owner” (terrenos vagos). As long as a piece of land is not admitted
definitively into the private ownership and not is specifically classified by law as
pertaining to public property, it is a piece of “land without owner” (see no. 1, article 7 of
Land Law). “Lands without owners” are automatically included to the private property
of the MSAR (see no. 2, article 7 of Land Law). The MSAR Government, according to
its own administrative objectives and subject to certain procedures determined by law,
could either include it into the class of “lands pertaining to public property”, use it for
public construction or development, grant it out for private development etc.(see no. 2,
article 7 and article nine of the Land Law).
The granting procedures of lands under this category for private development are
also provided inside the Land Law. According to article 29 (and other provisions) of the
Land Law, the most significant forms of land grants are the “granting through foros”
(concessão por aforamento) and the “leasing grant” (concessão por arrendamento).
As far as the “granting through foros” (concessão por aforamento) is concerned,
the Land Law19 itself as well as legal literature20 consider the rights granted by this
method a type of real right (the real right of emphyteusis, which is characterized by its
perpetual nature, principle reason why it is considered incompatible with the unitary
Roman Concept of ownership). For this reason, we prefer to call it the Emphyteutical
Grant. Also owing to such a juridical qualification, the legal structure of this institution
is bound to be complicated. On one hand, regardless to the legal nature attributed to the
rights granted, the “granting” itself remains an issue of administrative law, apart from
the few rules (articles 44 to 48 of the Land Law) determining its basic elements, the
whole set of rules regulating the granting procedural in general as well as the rights and
duties of the beneficiary of grant are also applicable (articles included in Chapter 8,
Chapter 9, and Chapter 10 of the Land Law). On the other hand, since the rights granted
to the beneficiary are considered rights of Emphyteusis, the institution of Emphyteusis
once regulated in the Portuguese Civil Code (we must pay attention to the fact that upon
the promulgation of the Macau Civil Code in 1999, the institution of emphyteusis has
disappeared from the Code. Nevertheless, the legislator has provided an exceptional rule
to maintain its applicability for the rights of emphyteusis established before the
revocation of this institution, and as supplementary rules to emphyteutical grant
regulated in the Land Law21) are thus applicable as well.
The “leasing grant” (concessão por arrendamento) is perhaps the most important
means for individuals and private entities to acquire land from the Government. Most of
the lands circulating in the market and used for real estate development in Macau are
19
See article 45 of the Land Law, especially the notes found in the official version
For a detail discussion of this matter, see José Gonçalves Marques, Direitos Reais, Lecture Notes of the
Faculty of Law, University of Macau, pg. 214 ss. This work has a Chinese version translated by Tong Io
Cheng.
21
See no. 2a), article 3, D.L. no. 39/99/M.
20
not lands of private ownership, but lands granted by the government through leasing.
The legal institution of leasing grant is fundamentally regulated in the Land Law
(articles 49-59; articles 98-191, where applicable).
Obviously, either for the case of “granting through foros” or “leasing grant”, we
shall not be able to do a thorough description about the whole institution as well as their
respective administrative procedures. What we can do here is to highlight the legal
nature (of the rights acquired by the beneficiaries through the grants) important for the
determination of the legal base of real estate transaction. And what is it? In our opinion,
the rights acquired by the beneficiaries are a bundle of rights with a complex structure.
The most important element is the power to use and develop the land. Nevertheless, the
use and enjoyment of such rights are subject to the limitations imposed by Land Law
and by the contract of grant. That is to say, the relation established between the
beneficiary and the government is based on a contract (though a special one, the
administrative contract). Therefore, the rights acquired by the beneficiaries are not
rights of private ownership, but a bundle of contractual rights and duties, and most
important of all, rights and duties strongly restricted by law. Such a nature of the
granted rights determines that whenever the beneficiaries pretend to “sell the land” or
negotiate it in the market, they are not free to do so. Instead, they are bound to involve
the Government according to the restrictions and terms of the granting contract.
2) Are the incorporeal things (water, gas, energy) assimilated to corporeal things?
First of all, in Macao Civil Code, the definition of things given by article 193 is
ample enough to cover incorporeal things and corporeal things.
Secondly, however, it should be noted that the concept of “incorporeal things” can
be attributed with different contents22, and our legal literature23 does not consider water,
gas or energy as incorporeal things, but rather, corporeal things, or in concrete terms,
movables. Therefore, for the case of water, gas, energy etc., the rules applicable to
corporeal things are perfectly applicable to them.
In my opinion, the biggest inconvenience in considering water, gas, energy etc. as
corporeal things is the problem of compatibility with the sharp distinction of real rights
and obligational rights.
2.1 If the answer to the above question is no: under which law are they treated?
Irrelevant since my answer to the above question is Yes!
2.2 Can the incorporeal things be object of a contract?
As explained in the above paragraph, our legal discussion does not consider
water, gas or energy as incorporeal things. Therefore, if the focus point of this
question continues to be water, gas and energy, there would be no room for us to
give any answer.
Nevertheless, if we consider this question as a general question, then we may
answer in the following way:
In our legal literature24, “things” are the object of ownership (or better, object
of real rights), while the object of an “obligational relation” is always performance
(prestação), when the performance of an obligation refers to the delivery of a
“thing/s”, such “thing/s” may be referred to as the indirect object. Here, incorporeal
things are also “things”, therefore, it is naturally an object of ownership.
Contract is a source of obligation, and if the problem is seen from the angle of
object, I would say it is the indirect object of the subjective rights created by a
contract.
22
See José Alberto González, Direitos Reais (Parte Geral) e Direito Registral Imobiliário, Quid Juris,
2001, pg. 78.
23
See for example, Pires de Lima/Antunes Varela, Código Civil Anotado, Vol.I, 4ª Edição, Coimbra
Editora, 1987, pg. 198, note 1.
24
See Carlos Alberto da Mota Pinto, Teoria Geral do Direito Civil, 3ª Ed., Coimbra, 1993, pg. 331;
similar construction can also be see in German legal literature, e.g. K. Larenz, Allgemeiner Teil des
Deutschen Bürgerlichen Rechts, I, pg. 377 ss of the Chinese Version translated by Wang & others, Law
Press, 2003.
2.3 If the answer to the above question is yes: Are there a specific or nominate
contract for them?
No, there is no specific contract for them.
2.4 If the answer to the above question is no: which king of legal relationship
can be referred to them?
The legal relationship of a contract having as object the incorporeal things is a
normal contractual relation under the principle of freedom of contract.
In our legal system, the general rule for transfer of ownership can be
characterized as purely consensualism 25 (namely, the transfer of ownership
depends merely on the effect of contract, and the registration in case of immovables
and delivery in case of movables are just conditions for the opposing effect towards
third parties). For example, in case the object refers to gas, energy etc. (which we
qualify as movables), the rule of consensualism applies perfectly: whenever the
contract is signed, the ownership of those object is transferred. Therefore, it is clear
that in our legal system, the same contract which is the source of obligation is also
the means to transfer the ownership; in another world, contract is the only and
common source (the only juristic transaction) both for the constitution of obligation
and for the transfer of property (ownership).
However, in case the object refers to incorporeal things like the object of
industrial property, then the above rule inevitably seem a little bit clumsy or
redundant, since whenever the special law requires registration or other formalities
to produce effect, the contract alone means nothing more than source of claim.
Article 402 of the Macao Civil Code, which provides that: “the constitution or transfer of real rights of
specific things is done by the mere effect of contracts,…”.
25
3) Is the so called universitas rerum assimilated to corporeal things?
In order to answer this question, we need to decode the concept “universitas
rerum”.
The expression “universitas rerum” can be traced back to Roman law, but the
terminology itself is not a Roman creation. In common language, the Romans used the
word “universitas” to denote the collectivities of differing kind, a total, or a “complex
unity” transcending the singular elements26.
In Roman legal text, from time to time, the term “universitas” was used to
designate a big number of legal phenomenons with different nature, for example, the
collection of a library or museum, the heritage, the patrimony of an association etc. 27, or
even a corporation28 itself. In view of the variety and complexity of the phenomenons
involved, it was believed that, in Roman law, the term “universitas” was not used as a
unitary and technical terminology, but in the sense of a daily language: a collectivity or
aggregation 29 . The dogmatic distinction of “universitas”, like “universitas iuris”,
“universitas facti” etc., only began in the late middle age.
As to the category “universitas rerum” is concerned, although not being category
created by the Roman law, its origin was usually attributed to a fragment of Ulpianus30.
According to A. Santo Justo, “universitas rerum” is a group of simple and homogenous
things, united by a conceptual but not material link, that, as a whole, satisfy an
economical- social goal, and that the law considers it one unique “thing”. For example,
a herd of sheep, statutes in a gallery, a stock of goods, a library etc.. The “universitas
rerum” is an independent object of rights and object of juristic transaction (for example,
the herd can be sold, inherited or restituted as a whole, or upon which the right of
usufruct can be constituted). Nevertheless, being considered a unity shall not exclude
the possibility of the individual things thereof to be the object of juristic transaction.
And in case of usucapio, the elements are not acquired as a unity, but one by one31.
With the above description, we believe the physiognomy of “universitas rerum” is
already recognizable. Nevertheless, we must be aware of the fact that the classification
of the various types of “universitas” is not all the way clear. The same reality may be
identified as one type of “universitas” by one writer, but other type by another writer32.
See Elio Palmieri, “Universitas”, in Novissimo Digesto Italiano, XX, Utet, 1975, pg. 122.
See Mario Trimarchi, Universalitá di Cose, in Enciclopedia del Diritto, XLV, Giuffré, 1992, pg. 801.
28
See R.W.Lee, The Elements of Roman Law, Sweet & Maxwell, 1956, pg.103.
29
See Elio Palmieri, Ibid, pg. 122.
30
D.7, 1, 70,3. “Sed quod dicitur debere eum summittere, totiens verum est, quotiens gregis vel armenti
vel equitii, id est universitas usus fructus legatus est.” See A. Santo Justo, Direito Privado Romano – I, 2ª
Ed., Coimbra Editora, 2003, pg. 172.
31
See A. Santo Justo, Direito Privado Romano – I, 2ª Ed., Coimbra Editora, 2003, pg. 172.
32
For example, cases like a herd of sheep, books in a library etc. are identified by A. Santo Justo as
“universitas rerum”, but in other occasion, they are identified as “universitas facti” (see Wang Feng, The
Lexicon of Roman Law, Law Press, 2002, pg. 250).
26
27
And there are also classifications of “universitas” accepted by one, and not accepted by
others33.
In conclusion, we would say that both the category “universitas” and its
sub-classifications(“universitas rerum”, “universitas facti”, “universitas iuris” etc.) are
not clearly defined concepts. Among the various combinations of “universitas” and its
suffix, legal writers or even legislators are casuistically using different terms to
designate the same reality or the same term to designate different realities.
In the case of Macau Civil Code, the terminology used is “universalidade de facto”
(C.C.M. art. 203, which refers to a number of movables with physical autonomy,
belonging to the same person and having the same purpose). We believe the
terminology itself is a succession of the category “universitas facti”. According to the
definition of the itself and the examples given by credible legal literature34, the so called
“universalidade de facto” coincide with the classification of “universitas rerum”
identified by some scholars35.
In case the above understanding of “universitas rerum” corresponds to that of the
question, then our answer shall be: Yes, its regulations are similar to corporeal things.
Otherwise, in our system, there is no general rule that assimilates the so called
universitas rerum to corporeal things.
ON the other hand, however, there are a group of theories that consider the
“commercial enterprises” as “universitas”36 or “universitas rerum37”. In such a case,
article 1227 (1) (2) of the Macau Civil provides that it has a special legal regime
regulated by the commercial law, which recognize them as the object of real rights and
object of possession. Additionally, the regulations of the Macau Civil Code are
applicable to them whenever a rule is in harmony with the nature of the enterprises and
not contradicting the rules specifically made for them.
3.1 Have the universitas rerum a different legal regime from the one of single
thing? If yes can you describe which diversities exists?
For example, the case of “universitas iuris”, see Mario Trimarchi, Ibid.
We are referring to the Pires de Lima e Antunes Varela, Código Civil Anotado, Vol.I, 4ª Ed., Coimbra,
1987, pg. 199. Credible for the reason that they have participated actively in the legislative process of the
Portuguese Civil Code of 1966, which is the predecessor of the Macau Code. And most importantly, for
this issue, the formula used in the Macau Code in fact reproduced the Portuguese one. The examples
given herd, library, a colection of stamps or coins etc..
35
For example, the case of A. Justo Santos, see the above cited work.
36
About the situation of this group of theories, see João Baptista Villela, Revisitando as Universalidades,
in Estudos em Homenagem ao Professor Doutor Inocência Galvão Telles, Vol. IV – Novos Estudos de
Direito Privado, Almedina, 2003, pg. 26.
37
See the introduction given by Ferrer Correia, Lições de Direito Comercial, Lex, 1994 (reprint), pg. 127.
Nevertheless, this classification is not unanimous. There are alternative categorizations, in Portuguese
literature, sometimes commercial enterprises are identified as incorporeal things (see the case of J.
Coutinho de Abreu, A Empresarialidade – as Empresas no Direito, Almedina, 1996, pg. 76) or immaterial
things embedded in a mass of material things (the case of Orlando de Carvalho, Direito das Coisas,
Centelha, 1977, pg. 196).
33
34
In case the “universitas rerum” referred by the question is the “universalidade de
facto” of our Civil Code, the most important difference between this “universitas”
and a single thing is following38:
- for a single thing, the component part of the thing cannot be object of juristic
transaction or object of right (the transaction or the right must be incurring the
whole thing and not a part) unless the part is separated from the thing (deduced
from aritlce 402 of the Macau Civil Code);
- for a “universalidade de factor” or “compound thing”, the elements or
components integrating the complex (a number of single movable things) can be
object of juristic transaction or object of right (article 203, (2) of the Macau Civil
Code).
In case of “commercial enterprises” being considered “universitas rerum”, the
rules the Civil Code are applicable to them whenever there is no contradiction
between those rules and the nature of the enterprises and other special rules foreseen
in the Macau Commercial Code (art. 102-106). The Macau Commercial Code
provides that “commercial enterprises” can be an independent object of ownership,
usufruct, and pledge(penhor); it can also be restituted as a whole and protected
under the law of possession. In our understanding, rules in the Civil Code applicable
to commercial enterprises are rules relating to the protection of ownership, the rules
of possession etc.39.
3.2 Is the combination between universitas rerum and bound of rights
admissible in your legal system?
Since the whole discussion of this section is about “universitas”, I intend to
interpret the expression “bound of rights” related to the discussion of “universitas
iuris”. The so called “universitas iuris” is interpreted as “a bundle of goods or rights
grouped together by law for some special effect, but the bundle itself has no proper
economic function”; and the example for it is heritage40.
If that is the case, then my answer will be: yes! My reason is, there is nothing
in our law that prohibits such a combination. The parties can freely combine
“universitas rerum” and bounds of rights and negotiate them through a contract.
ON the other hand, I must say that there are cases where scholars classify the
commercial enterprises as “universitas iuris” or both “universitas iuris” and
“universitas facti” 41. Nevertheless, since the category of “universitas iuris” is not
38
See Pires de Lima e Antunes Varela, Código Civil Anotado, Vol.I, 4ª Ed., Coimbra, 1987, pg. 200.
For a more detailed description of enterprises considered as the object of juristic relation, see Tong Io
Cheng, The Feasibility of Enterprises being the Subject and Object of Juristic Relations, in Pan Jie Yan
Jiu, 2005, Vol. 4, Court Press, 2005, pg. 49 ss.
40
See Pires de Lima e Antunes Varela, Ibid, pg. 201.
41
The case of Pinto Coelho, Barbosa de Magalhães, Oliveira Ascensão etc.; see the introduction of J.
39
treated in our law, discussion around it will just be theoretical.
3.3 Are the bound of rights equivalent to universitas rerum?
From the exposition given in the previous paragraphs, I believe it all depends
on how the concept of universitas rerum and bounds of rights are defined.
As to the positive law in Macao, since there are no special rules for the
bounds of rights, the assimilation of the two realities are only theoretical. And
even so, since the question does not contain a definition of the two concepts, it
shall be impossible to analyze it even theoretically.
Coutinho de Abreu, A Empresarialidade – as Empresas no Direito, Almedina, 1996, pg. 75.
4) Can the incorporeal things be the object of ownership or other property rights?
Yes! As explained the above paragraphs, in our legal system, incorporeal things are
included in the concept of “things”(see the cited article 193 and article 1226 of Macau
Civil Code), thus, it can be the object of ownership or some other property rights.
4.1 Can copyright be the object of ownership or other property right?
Copyright can be object of ownership42, but it has a special regime (DL. 43/99/M),
and only applies the rules of real rights where its nature does not oppose ( C.C.M.
art. 1227, item 2). On the other hand, it is also regulated in DL. 43/99/M that
copyright can be the object of usufruct (article 32) and the object of pledge (article
33).
4.2 Can you describe the content and essence of copyright?
The content and essence of copyright is clearly described in article 7 of DL.
43/99/M, which provides: 1) The author is the holder of a personal right and a
patrimonial right over the protected work 2). The patrimonial right of the author
includes the exclusive powers to : a)use and economically explore the work and to
authorize third persons to use or explore the work totally or partially; b)to be
reimbursed by the utilization of third persons to his work, when the authorization of
utilization is exempted by law. 3). The personal right of the author includes the
powers to: a) maintain the work unpublished; b)demand the restitution of the
identity of the author, and to be identified as author in the original, the copies of the
work as well as in each publicity of the work; c)withdraw the works in circulation in
terms of article 48; d)assure the genuinity and integrity of the work and oppose any
mutilation or deformation of the work and any acts that may depreciate the work, as
well as any acts that may affect the honor and reputation of the author.
4.3 Can trade mark be an object of any property right?
Trademark can also be an object of ownership right (article 1227, item 2, of the
Macau Civil Code), in the terms similar to copyrights (This idea of trademark
being the object of ownership is clearly shown in the DL 97/99/M, “Regime
Jurídico da Propriedade Industrial”, article 227, which refer the transfer of
trademark as “transfer of ownership of trademark.” On the other hand, the Regime
Jurídico da Propriedade Industrial also regulates that trademark can be the object of
42
See Pires de Lima/Antunes Varela, Código Civil Anotado, Vol.III, 2ª Edição, Coimbra Editora, 1987,
pg. 86,
pledge (article 14).
4.4 Is the “patent” object of any property right?
Patent is also the object of property right, such as ownership (article 1227,
item 2) and pledge (penhor; DL 97/99/M, de 13 de Dezembro, art. 14).
4.5 Which is the extent of patent right? In other words, can you describe which
invention can be “registered”?
The extent of patent rights is regulated under the DL 97/99/M, “Regime
Jurídico da Propriedade Industrial”. This law first set the general requirements of
patentability, by article 61, patents shall be available for any inventions, whether
products or processes, in all fields of technology, even if they involve products
compost of biological matters or contain biological matters or a process that
permits the production, processing or use of biological matter, provided that they
are: a)new; b) involve an inventive step and, c) are capable of industrial
application. Then, some cases of exception (which indicates which cases are not
patentable) are listed in article 62, by which, the non patentable cases includes: a)
Discoveries, as well as scientific theories and mathematical methods; b) Materials or substances
already existing naturally and nuclear matter; c) Aesthetic creations; d) Schemes, rules and methods
for performing mental acts, playing games or doing business as well as computer programs, as such;e)
Presentation of information; f) Inventions whose commercial exploitation would be illegal, contrary
to public order, public health or morality(specifically, i). The human body, in the various stages of its
formation and development, as well as the simple discovery of one of its elements, including the sequence or
partial sequence of a gene; ii). Human cloning processes; iii). Human germinal genetic identity modification
processes; iv). The use of human embryos for industrial or commercial purposes; v). Processes for the
modification of the genetic identity of animals that can cause them suffering without any substantial medical
benefit to mankind or animal kind, as well as the animals obtained by those processes); g) Methods for the
surgical or therapeutic treatment of the human or animal body and methods of diagnosis applied to
the human or animal body, excluding products, substances or compositions used in any of those
methods; h) Plant varieties or breeds of animal, as well as essentially biological processes for the
production of plants or animals. In
order to prevent mis-qualification, the article 63 of the
law further states that the patentability of the following cases should not be excluded:
a) A substance or composition included in the previous article which is used in the working of one of
the methods mentioned in paragraph g) of the same article, provided that its use for any of the
methods mentioned therein is not included in the previous article; b) Any isolated element of the
human body or produced in some other way by a technical process, including the sequence or partial
sequence of a gene, even if the structure of that element is identical to that of a natural element; c) An
invention whose object is plant or animal matter if its technical feasibility is not limited to a certain
plant variety or animal species; d) A biological substance isolated from its natural environment or
produced on the basis of a technical process, even if it pre-exists in the natural state; e) An invention,
the object of which is a microbiological or other technical process or products obtained by such
processes.
4.6 Are the trade secrets considered as the rights deriving from a patent?
Trade secrets are not considered as the rights deriving from a patent. In our legal
system, trade secrets are regulated under the title “Regulation of Competitions
between Entrepreneurs”, in article 166 (unfair competition) of the Macau
Commercial Code, which states: “1. The spreading or exploitation, without permission from
the holder, of industrial secrets or any other entrepreneurial secrets that were either accessed
legitimately, but with a duty of confidentiality, or not legitimately, namely as a consequence of any of
the conducts mentioned in the following article, is considered unfair. 2. For the purpose of this article,
all and any technical or commercial information that has a practical use and provides economic
benefits to the holder, which is not public knowledge, and in relation to which the holder took
appropriate security measures to guarantee its respective confidentiality, is considered an
entrepreneurial secret.”
Moreover, trade secrets are further protected under the Macau
Penal Code, article 190, in the sense that those who apply a trade secret without
consent shall be punished up to one year of imprisonment.
Nonetheless, there is no obstruction for the entrepreneur to apply patent protection
of a trade secret as long as the latter meets the requirements set forth by the
respective legislation.
4.7 Can the credit right be considered as a property?
In our understanding, both credit right and property rights are patrimonial rights;
however, the object of credit right is performance, while the objects of property
rights are things. Although in some cases, credit rights can also be disposed, or even
be the object of some real rights (e.g. the case of pledge over credit rights and
usufruct constituted over credit rights), but they are not considered as a property (in
the sense of real right).
However, comparing the Italian version and the English version of the
questionnaire, I believe the question should be “Can the credit right be considered
as object of property?”
If that is the case, then my answer shall be: In normal situation, credit right is not
considered as object of property, but there are cases where real rights can constitute
over credit rights, like the case of pledge over credit rights and usufruct constituted
over credit rights.
5) Dose your legal system provide a right of publicity?
Yes, our legal system does provide a right of publicity, under the chapter of Rights
of Personality, inside the Macau Civil Code(article 80).
5.1 If the answer to the above question is yes: can you describe which the
protections are?
The Macao Civil Code (in its article 80) rules that the image of a person cannot be
exposed, reproduced or used for commercial purpose without his consent. And
according to the general rules of rights of personality (Macao Civil Code article 67,
item 2), any infringement of such rights are subject to Civil liabilities; moreover, the
right holder can also take necessary measures on his own to avoid those
infringements.
6) Does your legal system recognize a right to disposal of personal data?
Before 2005, there is no special law regulating the disposal or other aspects of
personal data. Therefore, the law applicable at the moment was the general rules of the
Macau Civil Code, especially the article 79 within the chapter of Rights of Personality.
However, this legal norm does not directly deal with the problem of disposal; instead, it
deals with the right of a person to get access of personal data related to him, or the right
to the access of personal data related to third person (article 79 of the Macao Civil
Code). On the other hand, since the issue is dealt with under the concept of Rights of
Personality, the general rule of protection (article 67 of the Macao Civil Code) as well
as the rule of voluntary limitation (article 69 of the Macao Civil Code) of such rights
may also be applicable to the disposal of personal data.
In other words, the disposal of personal data can be seen as a voluntary limitation
of the Rights of Personality, thus, when it is not related to indisposable interests and
not contrary to the public order or good costumes, the disposal shall be recognized.
In August 2005, Law no. 8/2005 (Lei de Protecção de Dados Pessoais) was passed
by the legislative assembly, and came into effect 180 days later.
This law consists of 46 articles. In supplementation to the framework mounted by
the Civil Code, the Law of Protection of Personal Data regulates in full detail the nature,
the process of treatment, as well as the rights of the data holders.
Solution of conflicts:
I)
A is the owner of land C. A has been using the water of red river since 30
years, to irritate the land C. B is authorized by Public Authority to dig the
bed of the red river up to the land C in order to search for gas (or for any
other reasons). B in order to realize the digging closes the access to the red
river depriving A of the water. Which remedy has A against B?
Although A has been using the water of red river for 30 years, he does
acquire not any personal property (or any type of real rights) over the red river,
but merely enjoys the advantage deriving from the location of his land. He is
not even entitled to claim the usucapio of the servitude over the river, since
the red river here shall qualified as a “thing” under public property (Art.193,
(3b) of the Macao Civil Code), which means it cannot be object of private
property. Therefore, in principle, A has no remedy against B.
However, it is not without doubt that whether A has possession over the
use of the river and thus enjoys the possessory protection granted by the Civil
Code shall lead to a difficult and theoretical debate, which we do not want to
draw premature conclusion at this moment.
II)
A receives a regular gas supplying from the company named B. A stows the
gas in apposite container before using it. In the case of non payment of the
supplying can the B company claim the gas stowed which have not been
used yet.
As we have mentioned it the previous discussions, in our legal system,
the principle regarding the transfer of specific things are is the principle of
pure consensualism, which applies both to movables and immovables.
According to this principle, the ownership of specific “things” is considered
to be transferred at the moment the contract is concluded. However, in order
for this principle to function, there are several conditions which are of utmost
importance. First of all, the ownership of “future things” cannot be transferred
at the moment the contract is concluded, since the “things” or not existing yet,
or not under the disposal of the transferor. They shall be considered
transferred when the transferor obtains the ownership. Secondly, component
parts of a thing not yet detached from the thing also shall not transfer when
the contract is concluded, but at the moment the part is detached. Thirdly,
things not specified (or specified by the class and by the number, or specified
with several alternatives) when the contract is concluded shall also not be
transferred at the moment the contract is concluded, but instead, at the
moment when the specification was known to both parties(these rules can be
found at article 402, item 1 and item 2 of the Macao Civil Code).
In our case, since gas is considered as moveable, and the regular supply
contract did not specify (since impossible to specify) which are the gas to be
supplied, we must consider it as non specific “things”. In this case, according
to the cited principle of consensualism, the ownership of the gas involved
shall be transferred whenever the specification is known to both parties. As
given by the question, A stowed the gas in apposite container before using it.
And at the moment the gas is stowed, it is specified; nevertheless, it is
difficult to determine when the other party (the supplier) knows that he
stowed the gas. However, once the supplier claims to the court, it immediately
tells that he has knowledge of the specification. And if we follow strictly the
text of the law, at this particular moment (or any other moment that shows the
knowledge of the supplier), the ownership of the stowed gas is automatically
transferred to A.
Nevertheless, the answer deducted from the above analysis appears quite
astonishing to our daily experience, because normally the supplier will not
check, and thus also will not be able to know whether the gas are stowed or
used. And if they never know, how do we determine at which moment the
ownership of the gas was transferred to the user?
I would rather believe that, when the legislator created the rule of
transfer of ownership in the Macau Civil Code (or better, the legislator that
created the rule that served as the original model of our legislation), what was
in his mind was not water, gas or energy under a contract of continuous supply,
but rather, traditional corporeal things.
However, it should be noted that, in our law, under the principle of
consensualism, the transfer of ownership of a specific thing depends merely
on the conclusion of a contract, but not the performance of the contract. In the
case sub judice, the non payment of A does nothing to obstruct the transfer of
ownership of the stowed gas; on the other hand, whether the gas is used or not
also shall not affect the transfer of ownership.
The non performance of A may give rise to a right of resolving the
contract or to claim compensation in favor of company B, but not the right to
claim back the gas stowed under the title of restitution of an object under its
ownership, since the company is no longer the owner of the gas at the moment
it was stowed.
III)
A is the owner of a picture-gallery. A authorizes that the weekly magazine B
to take pictures of the paintings with the promise that B will pay a certain
amount of money in the year. Afterwards A sells the picture gallery to C.
The conveyance has a wide object since makes general reference to all A’s
rights on the goods sold. To whom goes the money which are still due from
B? to A or to C?
This case is a typical case of purchase and sale of commercial enterprise.
According to our Commercial Code, all the rights and duties related to the
enterprise are transferred to the purchaser, which is C (Macau Commercial
Code, art. 112, 113). Therefore, the money shall go to the purchaser C.
IV)
A download from an illegal internet site a music record. He is discovered by
accident. Can the editor B who has the copyright on the record, sue A in
order to obtain the payment of copyright?
Music is included in the protection of copyright (article 2, DL. 43/99/M).
The act of downloading music record represents an act of reproduction, which is
a right owned exclusively by the holder. However, if the purpose of reproduction
is for the self use of A, this act is not prohibited (article 60, DL. 43/99/M).
Therefore, the editor cannot sue A in order to obtain the payment of
copyright in case the downloading is for self use.
V)
A is the director of the factory of the Company X. He has found in a lot of
years working a sophisticated logistic system which permits to obtain all
block just in time for the assembly. The company X hasn’t patented the
logistic system created by A. Despite this fault X consider the logistic secrets
one of her most valuable trade secrets and has done all possible to protect it.
A after having stopped working for X and after the non concurrence term
has elapsed starts a new job with Company Y which is a direct competitor
of X. X is worried about A will introduce the logistic system in the Y
company. Are there any remedies which X can apply to prevent A from
making use of the logistic system?
The protection of trade secret is not depending on the effect of patent. In
the present case, the logistic can be qualified as a trade secret, since it was not
known to the public, has practical use, provides economic benefits and the
company X has done all possible to protect it (According to Article 166, item 2 of
the Macao Commercial Code, trade secret is any technical or commercial information that has
a practical use and provides economic benefits to the holder, which is not public knowledge,
and in relation to which the holder took appropriate security measures to guarantee its
respective confidentiality).
However, the claim of disloyal competition can only be raised when the
acts of competition has already occurred. In the present case, there is no proof
that A or company Y is making use of the logistic system. Our law does not
provide any preventive measures in the case of possible disloyal competition.
VI)
A is a no-profit organization giving help to families whose member have a
predisposition to genetic disease. During their activity they have store a lot
of medical data regarding a large group of families. Can the no-profit
organization deliver the data to X company in order to develop a medicine
potentially adapt to treat the disease? Is there any difference whether the
transfer is made free or on the contrary after payment?
According to article 79, item 2, of the Macao Civil Code, the collection of
personal data of a third person for informatics treatment must be strictly limited
to its preset purpose, and must inform the owner of these data.
This means that, if the collection of the data as well as the purpose for
collection from the no-profit organization has been revealed to the group of
families, and they give consent, the acts of collection are legal. As to whether the
delivery of data to X company is permitted, it still depends on whether such a
purpose was made known to the data donors. Whether the transfer is made free
or not is also depending on the declared purpose.
In case the data is used beyond the purpose/s declared, the collector shall
fall into the general regulation of protection of rights of personality, thus, shall
bear the corresponding liabilities.
VII)
The magazine X published pictures of A (well known football player) to
celebrate the winning of Championship league by his team. After a while
the X magazine sells posters with the above said pictures. Does A has any
legal remedy to protect his right of publicity? Is there any possibility for A
to claim for damages? Is there any possibility to obtain the restitution of the
money gained by X magazine deriving from the selling of the posters?
In our legal system, this question can simply be solved by invoking article
80 of the Macao Civil Code.
Therefore, in general, the picture of any person cannot be taken without his
consent. However, A is a famous person, and the picture was taken in a public
place (very possibly emerged in a group of people). In this case, our law (article
80, item 2 of the Macau Civil Code) permits that the picture of him be taken
without his consent.
As long as the sale of the poster is concerned, the law only prohibits the
sale when it offends the honor of A.
Therefore, as a famous person, A has no remedy against the taking and
selling of his picture, nor has he the right to claim for damages or to restitute the
money gained by X magazine.