PORTUGAL Law and Practice Contributed by: João Valadas Coriel, Sofia Quental, António Vieira and Inês Grácio, Valadas Coriel & Associados
compliance with such guarantees entitles the buyer to seek remedies, which may include contract termination, reimbursement or compensation for damages. Where the authenticity of an artwork has been misrepresented, the buyer may claim a refund or request rescission of the sale, along with poten - tial damages for any losses incurred as a result of reliance on the seller’s representations. The extent of liability often depends on the terms expressly set out in the contract, including any warranties or disclaimers regarding authenticity. • Tort liability: a party may claim a remedy if it suffers harm due to the unlawful conduct of another, which in this case may arise if the seller, auction house or expert acted wrongfully or negligently in a way that caused damage to the buyer. The measurement of such liability will vary depending on the intentions of the non-compliant party – namely, if its conduct was negligent or fraudulent. • Unjust enrichment: if the seller profited unfairly from selling an inauthentic artwork, the buyer can claim restitution. • Right of reimbursement: this arises in indemnity cases where one party pays a debt or obligation on behalf of another and seeks repayment. According to Portuguese law (namely the Legal Framework for Cultural Heritage – Lei de Bases do Património Cultural), cultural heritage encompasses all tangible and intangible assets that serve as testi - monies of civilisation or culture, possessing relevant cultural interest and warranting special protection and enhancement. For these purposes, the following key elements of cul - tural heritage are considered under Portuguese law: • cultural value and significance – heritage assets are recognised for their historical, archaeologi - cal, architectural, linguistic, artistic, ethnographic, scientific, social, industrial or technical importance, embodying values such as memory, antiquity, authenticity, originality, rarity, singularity and exem - plar value; 5. Cultural Heritage 5.1 Defining Cultural Heritage
• Portuguese language – as a fundamental pillar of national sovereignty, the Portuguese language is an essential component of cultural heritage; • intangible heritage – traditions, customs and knowledge that form structural elements of national identity and collective memory; • internationally recognised heritage – assets classi - fied as cultural heritage under international conven - tions ratified by Portugal; • contextual relevance – the surrounding environ - ment of heritage assets, when crucial for their historical or cultural interpretation; and • traditional popular culture – a priority in state and regional policies for the protection and enhance - ment of cultural heritage. 5.2 Cultural Heritage and Adverse Possession Under Portuguese law, cultural heritage assets – ie, those designated as being of national interest ( inter- esse nacional ), public interest ( interesse público ) or municipal interest ( interesse municipal ) – cannot be acquired through adverse possession ( usucapião ), nor can those undergoing the classification process. This restriction aims to protect historically and culturally significant items from private appropriation. In addition, certain categories of cultural goods, par - ticularly archaeological finds belonging to the state, are not subject to private ownership and therefore cannot be acquired by prescription. If a cultural asset is not classified and is not in the pro - cess of being classified, it can be subject to adverse possession, provided the legal requirements for usu- capião are met. However, issues relating to unlaw - ful removal, restitution or public law restrictions may affect the analysis in specific cases. 5.3 State Rights to Cultural Heritage When a private individual discovers a cultural heritage item, the Portuguese state has the right to ensure the protection and conservation of such item, preventing unauthorised possession or trade. For these purpos - es, Portuguese law provides the following measures: • ownership and management – all archaeological finds belong to the state, which is responsible for their preservation, management and dissemination;
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