According to Prof. Paula Nunes Correia (Correia, 2012: p. 33) ², the qualification of Macao’s legal system as a member of the great Roman-Germanic or civil law family is therefore beyond doubt, and the aspects that essentially characterize it should remain unchanged for a period of fifty years, in accordance with the Macao SAR’s Basic Law. The affirmation of the Territory’s particular identity must also include the existence and preservation of its own legal system.

³ (Correia, 2012: p. 29) As Macao SAR lived under Portuguese administration for more than four centuries, sovereignty, although “divided” in Gonçalves Pereira’s words, could not fail to be exercised through the legal system that officially governed the Territory until it was returned to the People’s Republic of China (PRC).

In the last period of Portuguese sovereignty, the so-called “transition period”, which ran from 1988—with the culmination of the signing and ratification, in 1987, of the Joint Declaration (JD) by the governments of the Portuguese Republic (PR) and the People’s Republic of China (PRC) on the Question of Macao SAR, which marked the immediately preceding period—until 20 December 1999, This sovereignty was exercised “in order to ensure the success of the transition process”, at which time “the political-legal instruments were drawn up”, in particular the Basic Law⁴ (LB) and the Macau Grand Codes, which are currently in force in the RAEM (Macao SAR) for fifty years, “in accordance with the principle of one country, two systems”: During this period of time, the previously existing capitalist system and way of life will remain unchanged, and the socialist system and policies will not be applied in the Macao SAR (art. 5⁵ LB).

So, through Macao SAR’s developed legal history, we can learn that it adopted the Civil Law (família jurídica Romano-Germânico), in which law plays a central role in the regulation of social life⁶, and the Roman-Germanic legal family history, as Paulo Cardinal⁷ taught in class, 「is influenced by Roman Law (it is o direito de solar), Direitos Povos Germânicos, Corpus iuris civilis, Codificações Gótica e alarico, a Revolução da Francesa, and the language is Latim and the Direito Canónico.

In other words, as Carlos Ferreira de Almeida e Jorge Morais Carvalho (de Almeida e Jorge Morais Carvalho, 2013: pp. 43-46) ⁸ point out about the History of Romano-Germanic, “during the Early Middle Ages, In the territory corresponding to the former Western Empire, several kingdoms of Germanic origin were formed. In the same area, populations that continued to be governed by Roman law coexisted with others (those of the invaders) who preferentially applied Germanic customs. Some of these customs were compiled in writing.

More important for the right position of the two words (Roman-Germanic) seems to be the intention to emphasize the structural similarity between the laws and culture of Roman-speaking countries and the laws and culture of German-speaking countries.

The reception of Roman law consisted of the study and application of Roman law as it appeared in the compilation drawn up on the initiative of Emperor Justinian (6th century AD), which later became known as the Corpus Juris Civilis. The set consisted of four parts—Digesto (or Pandectas), Institutas, Código and Novelas.

As much or more than the reception of Roman law, the French Revolution is a decisive historical event for the converging internal elements of the legal orders that form part of this legal system.

The structure and functioning of constitutional institutions were marked by the principle of the separation of powers, with a particular influence on competences relating to legislative production and the reluctance to recognize any normative efficacy of the judicial function.

The codification, with the meaning that has since been attributed to it in Roman-Germanic law (systematic, synthetic and scientific compilation of legal norms), was the formula found to ensure the concentration and dissemination of the law and the preferred instrument for giving it primacy among the sources of law.”

The sources of the formation of law are Law (written) (Lei na escrita) and Custom, and the modes of revelation or explanation of the law are jurisprudence and doctrine, also more sources are International Law (whether or not it needs a “dualist or monist” transformation; and Macao SAR is monist, which can directly apply treaties that do not violate the fundamental principles of the Basic Law of the Macau SAR.) and European Union law.

The discovery of Law or Method is Interpretation (in art. 8⁹ of the CCiv Macau) and Integration (in art. 9¹⁰ of the CCiv Macau) which the form of law normally in the Code (the general rule of legal order), and the methods are scientific, elaborate, advanced, general and abstract, namely, the essential characteristic that is rule for the case, which is contrary to the Common Law, the case for the rule.

The judicial organizations that divide the jurisdiction into common, administrative, constitutional, and demonstrate some characteristics of the Civil Law (família jurídica Romano-Germânico) on the 1) codification (it is the specific localization code for Macau), potentially through the codes to express the branches of law, namely, in Macau, there are five major codes: Civil, Commercial, Criminal, Civil Process, Criminal Process, plus the smaller codes: Administrative Procedure (procedimento), Administrative Process, Labour Procedure or Labour Process (in Macau there is no Labour Code, but we do have Labour law “Lei das relações de Trabalho – Lei n.˚ 7/2008”), Notary, Property Registry, Civil Registry, Commercial Registry, Land Law and Constitution etc. Regarding 2) The constitutional jurisdiction, in England they don’t, but we have the constitution. 3) The principles of the separation of powers (check and balance): legislative, administrative, judicial. And what’s more, the legal professions have one or two lawyers. 」

And about the Common Law, as Dário Moura Vicente (Vicente, 2018: pp. 70-71) ¹¹ points out, “influenced by Roman Law, nevertheless, the principle of the ‘rule of law’ also plays a central role in legitimizing political power and constituted law—although the dominant understanding of this principle in these legal systems differs from that which prevailed in the Civil Law system (família jurídica Romano-Germânico).

As Albert Venn Dicey (1835-1922) put it in his classic work, the rule of law comprises three fundamental elements: 1) the state (government) is subordinate to the law and exercises its power over citizens exclusively through the law (primacy of law); 2) all citizens, including officials and administrative agents, are equally subject to the law and to the jurisdiction of the ordinary courts (equality before the law); and 3) the rules of the Constitution are not the source, but rather the consequence, of the decisions by which the courts define and give effect to individual rights.

In the light of the above, we can understand the prominent place given to jurisprudence in Common Law systems, where it is elevated, through the binding force recognised by judicial precedents, to the status of the primary source of law, since legal norms are exceptional in these systems; and when they do exist, they have a notoriously lower degree of abstraction than the legal norms of Civil Law systems (família jurídica Romano-Germânico).

In addition, priority is given to the formation of rules “da base para o topo” (from bottom to top) and not “do topo para a base” (from top to bottom). Self-regulation, or regulation by the parties themselves, therefore, enjoys special favour in Common Law systems.

In other words, Prof. Paulo Cardinal¹², Carlos Ferreira de Almeida e Jorge Morais Carvalho (de Almeida e Jorge Morais Carvalho, 2013: pp. 76-79) ¹³ state that, regarding the history of Common Law, “the origins of modern English law can be traced back to the Norman conquest following the Battle of Hastings (1066). Duke William of Normandy (King William I of England), who invoked succession rights to the throne, promised to respect the “Anglo-Saxon laws” (“leis anglo-saxónicas”).

They were said to apply comune ley, an expression which, in French law, is the linguistic antecedent of the English expression common law, i.e., the “common law” of England.

In fact, as we have seen, there was previously no common law in England and this so-called common law had no uniform origin. In fact, the royal courts, by making use of the “common law”, took advantage of some customary rules and others inspired by Roman and canon law. But they were mainly guided by criteria of reasonableness and common sense.

The Precedent, (rules of binding precedent), i.e., the tendency to decide a current dispute in the same way as a previous similar case, has stabilized and given coherence to the law applied. Common law is therefore, from the outset, jurisprudential law, and not customary law. (Therefore, as Prof. Paulo Cardinal said, common law is judicial law, which is the primary role, and equity is the secondary role. And because the ratio decidendi is a binding influence of the common law whose based on the elements of the judgement that are the proven facts, obiter dicta, ratio decidendi, decision, and as the character referred to that the case for rule.)

The English legal system thus became dualistic, with the coexistence of common law rules and Equity rules, generated and applied by different royal courts, with no defined means of compatibility. From then on, Equity was peacefully accepted as a complementary system to common law.

Therefore, as for its characteristics, its language is undoubtedly English, which, unlike Roman-Germanic, is multilingual. And the common law model is not very exportable, which is also different from Roman-Germanic (Romano-Germânica).

So, the legal professions have Barristers and solicitors.”

This text is only about the general micro-comparison contract between Macau and England.

In our Macao SAR Civil Code, in its general part (parte geral), in Title II on legal relations (relações jurídicas), which deals with persons, we distinguish between natural persons “pessoas singulars” (natural persons with complete capacity (18 years old) and incomplete capacity, i.e., incapacities (minors, interdictions and disabilities)), legal entity “pessoa colectiva” (associations, foundations and companies), and associations without legal personality and special committees.

In England, they distinguish between three types of people (General Principles of Law, Course No. 158: pp. 45-46) ¹⁴: infants (minors up to 21 years old), married women and persons of unsound mind (interdictions). In other words, the word “person” is defined in the Interpretation Act 1978, Schedule 1 as including a body of persons, corporate or un-incorporate. In effect there are two types of persons: “legal persons” and “natural person”. Legal persons are corporate bodies, corporate sole, Scottish partnerships, and European Economic Interest Groupings. And Natural persons are sole proprietors, partnerships, unincorporated associations¹⁵.

The “consensu” becomes a contract between a proposal (offer) and an acceptance (acceptance), as a similarity between Macao SAR and England.

And, the contract in Macao SAR or England, which depends on its object that does not violate the legal system of Macao SAR in art. 273¹⁶ and 274¹⁷ of the Macao SAR Civil Code (but for attention here, we have the elements of the legal relationship: subject, object, relevant fact and guarantee) and in England (General Principles of Law, Course No. 158: pp. 45-46) ¹⁸ that the contract depends on the intentions of both parties and the object cannot be illegal, the contract is an agreement that is bound by the law (will be enforced by the law).

Firstly, the points between Macao SAR and England differs especially in the following hypothesis (General Principles of Law, Course No. 158: p. 46) ¹⁹. Like the public announcement. In England, the offeror (proponente) and the offeree (aceitante). An offeree cannot accept an offer until he knows of its existence. Thus, if A offers by advertisement a reward of £5 to anyone who returns his lost dog, and B finding the dog, brings it to A without having heard of the offer, B is not entitled to the reward of £5.

But in Macau, there is no such limit, which is a public announcement, the declaration can be made by means of an announcement published in one of the residence’s newspapers of the declarant (declarante), when it is addressed to a person who is unknown, and therefore this publication, when it is made in Macao SAR, must be made in a newspaper published in the official language of the territory of Macao SAR; if the recipient (destinatário) is unknown, it must be made in two newspapers, one in each of the two official languages (Chinese and Portuguese version), in article 217²⁰ of the Macao SAR Civil Code. However, the advert is not considered an offer, which depends on the recipient (destinatário)’s willingness to make an offer to the declarant. It means that the declarant has made an advert with a reward to look for the lost dog, if the recipient (destinatário) has looked for it, and then the recipient (destinatário) makes a new proposal to the declarant about the content of the advert, and it depends on whether the declarant accepts it or not.

Or rather, Mota Pinto says that when an offer is made to an undetermined person, in principle, there is only an invitation to contract (for example, if someone advertises in a newspaper that he sells certain goods for so much per kilogram or sends out price lists). There is still no offer to contract; the seller wants to reserve the final decision for himself.

But the public announcement is a unilateral legal conduct (negócio unilateral) (Prof. Paulo Cardinal), and what’s more, I think that in the case of an undetermined person, it becomes a determined person to make an offer on the basis of the invitation, whether the other party (the person who made the invitation) accepts the offer or not, that there is a link with the nature of a contract, because my subject is the bilateral contract (negócio bilateral) “contract” (contrato).

Secondly, on the validity of the contract (validade do contrato). In England (General Principles of Law, Course No. 158: p. 45) ²¹, the terms called, in the enforceable contract the following elements must be present: 1) An offer by one party and an acceptance by another party, resulting in an agreement. 2) An intention that the agreement shall result in contractual relations. 3) Consideration (simple contract) or a writing under seal (specialty contract). 4) Capacity of the parties to contract. 5) Genuineness of consent. 6) The object of the contract must not be illegal.

If any one of these elements is not present the contract will be according to circumstances, void, voidable or unenforceable.

A void contract is destitute of all legal effect, and it confers no rights on either party. Examples: a contract by an infant to buy goods which are not necessaries, and a contract which is void under the Gaming Act, 1845.

A voidable contract is one which one of the parties can put an end to at his option. The contract is binding if the party elects to treat it as binding, or void if he elects so to treat it. Example: A by fraud induces B to make a contract with A. The contract is binding on A unless B chooses to set it aside. B can set aside the contract or not at his option, but A has no such option.

An unenforceable contract is a valid one which cannot be enforced by action owing to some technical defect, usually absence of a stamp, lapse of time, or want of written form. Example: an oral agreement for the sale of land. Such a contract may become enforceable in the future if the technical defect is cured.

In Macao SAR, if the contract entered by a minor (menor), which is annulability (anulabilidade) within 1 year and can be remedied by confirmation, in Articles 114²², 280²³ and 281²⁴ of the Macao SAR Civil Code.

In our annulability (anulabilidade (Mota Pinto, 2012: pp. 620-621) )²⁵ regime, the annullable negotiation is, in principle, treated as valid, despite the defect. If it is not annulled within the legal time limit and by the people with the right to do so, it becomes definitively valid, and the effects of the deal are retroactively destroyed. Annulability is based on infringements of requirements aimed at protecting predominantly private interests.

In our system (Macao SAR), if the form required by law is lacking, that is a nullity (nulidade), because the agreement that lacks the legally prescribed form is null (nulo), when there is no other sanction specifically provided by law, in article 212²⁶ of the Civil Code Macao SAR. For example, the purchase and sale contract of a property with a public deed in art. 866²⁷ of the Civil Code Macao SAR, but the parties conclude this contract with a private document or verbally, so this contract is null (nulo) due to non-compliance with the legal form. And in our nullity (nulidade) regime²⁸, the null (nulo) effect does not produce, from the beginning (ab inicio), by virtue of the lack or defect of an internal or formative element, the effects to which it tended. The regime and the more severe effects of nullity find their teleological foundation in reasons of predominant public interest. Nullity cannot be cancelled by confirmation and by the passage of time, they operate “ipse iure” or “ipsa vi legis”, in art. 279²⁹ and 281.˚ of the Civil Code Macao SAR.

About our regime of invalidity (nullity and voidability), and we also have non-existence (Mota Pinto, 2012: pp. 617-619) ³⁰. Inexistence is an autonomous figure, with more serious consequences than nullity (nulidade) and annullability (anulabilidade).

Mota Pinto states that “with regard to non-existence (inexistência), it is said that we are dealing with this figure when the corpus of a certain legal act (negócio jurídico) (the materiality corresponding to the notion of such a act) does not even appear to exist, or, although this material appearance exists, the reality does not correspond to such a notion.”

The hypotheses of legal non-existence of marriage are listed in Article 1501³¹, and Article 1503³² of the Civil Code Macao SAR states that non-existence can be invoked by any person at any time, regardless of a judicial declaration, and that a non-existent marriage has no legal effect and is not even considered to be a putative marriage. On the other hand, annulled marriages (casamento anulado) produce the effects of a putative marriage. Or in article 239³³ of the Civil Code Macao SAR, which states that the declaration of the declarant has no effect.

Thirdly, on contract interpretation, in England (General Principles of Law, Course No. 158: pp. 89-90) ³⁴, If a contract is reduced by the parties into writing, the general rule is that it cannot be varied by parol evidence. Parol means anything done by word of mouth. But to this there are the following five main exceptions:

1) Parol evidence may be given to show that the written contract was made to a condition or stipulation.

2) If the whole contract was not intended to be put into writing, parol evidence can be given of the additional terms.

3) Parol evidence can be given to prove the rescission or complete extinction of a written contract:

4) Parol evidence can be given to explain a latent but not a patent ambiguity.

5) Parol evidence can be given to prove a trade usage or a local custom.

And in Macao SAR, Mota Pinto (Mota Pinto, 2012: pp. 441-454) ³⁵ states that “interpretation in legal act (negócio jurídico) is the activity aimed at establishing the decisive meaning and the scope of the transaction, according to the respective integrating declarations. It is a matter of determining the content of declarations of will.

The preferable position in the law doctrine, de jure constituendo, for most transaction (negócio), is the doctrine of the recipient’s impression, as it is largely more favourable to the ease, speed, and security of legal-negotiate life (vida jurídico-negocial).

According to the criterion proposed, regarding the problem of the type of negotiating meaning that is decisive for interpretation, here to we must operate with the hypothesis of a normal recipient: all the factors or elements that a reasonably well-instructed, diligent, and shrewd recipient (declaratário), in the position of the actual recipient’s (declaratário), would have considered.

If, however, the doubt that is reached at the end of the interpretative work is insurmountable (insanável), it seems that the declaration is ineffective (ineficaz), at least by analogue application of Article 216.˚ n. (3)³⁶ of the Civil Code Macao SAR.”

Therefore, the law in force determines that the negotiate declaration (declaração negocial) is valid with the meaning that a normal recipient (declaratário), placed in the position of the real recipient (declaratário), can deduct from the declarant’s behaviour, unless the declarant cannot reasonably rely on it. And whenever the recipient knows the declarant’s real will, it is in accordance with this will that the declaration issued is valid, in article 228³⁷ of the Civil Code Macao SAR.

And if there is any doubt about the meaning of the declaration, prefer in gratuitous transaction (negócio gratuito), the least burdensome for the disposer (disponente), in onerous transaction (negócio oneroso) this will lead to a better balance of performance, in art. 229³⁸ of the Civil Code Macao SAR.

And in England there is no system for integration the contract, but in Macau there is in Article 230³⁹ of the Civil Code Macao SAR, in the absence of a supplementary rule, and since the parties have not established the procedure for filling in the gaps in the negotiating declaration, it must be integrated in harmony with the will that the parties would have had if they had provided for the omitted point, or in accordance with the dictates of good faith, when another solution is imposed by them. And in exceptional cases, the supplementary rule may give way to the will that the parties would have had if they had provided for the omitted point, when this is the solution imposed by the dictates of good faith.