PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes and Petra Carreira, PLMJ
The duty to compensate includes not only the damage caused by the event, but also the ben- efits or profits that a party failed to obtain as a result of the event. The court can order compensation for future damage, as long as it is foreseeable. If not, the compensation for future damage will be referred for a further decision. Compensation for moral damage is available as long as its seriousness merits compensation. Punitive damages are not available under Por- tuguese law. However, the parties to a contract may agree that, in the event of default or breach of contract, the defaulting party will be bound to pay liquidated damages or a penalty. The amounts of both liquidated damages and penal- ties may be reduced by the court on an ex aequo et bono basis at the request of the debtor if they are considered excessive. Penalty clauses may also be reduced if the underlying obligations have been partially met. 9.3 Pre-judgment and Post-judgment Interest Under Portuguese law, if a claim is awarded, civil interest will be due only if petitioned by the claimant. Regarding contractual liability, a party may col- lect interest from the moment the obligation is due until full payment, including interest due before the judgment is handed down. In the case of non-contractual liability, as a rule, interest is due from the date of service of the claim on the defendant, unless the claim is already determined at an earlier point in time.
In both contractual and non-contractual liability cases, a party can collect interest accruing until compensation is paid in full. Pre-and post-judgment interest is subject to a five-year limitation period. This means that inter- est accruing more than five years from the time of payment is time-barred unless the limitation period has been interrupted or suspended. 9.4 Enforcement Mechanisms of a Domestic Judgment A domestic judgment may be enforced by a subsequent court action brought by the party seeking enforcement. The enforcement proce- dure involves a trilateral procedural relationship between the creditor, the enforcement officer and the court, in order to attach and carry out a judicial sale of the debtor’s assets to satisfy the creditor’s claim. Where enforcement proceedings are based on judgments, the debtor is not notified of their commencement and is only aware of their exist- ence after the attachment of assets has taken place. Enforcement proceedings in Portugal can only target the assets of the debtor that are locat- ed within Portugal. This is without prejudice to the judgment being recognised and subject to enforcement proceedings abroad, aimed at tar- geting the foreign assets of the debtor. 9.5 Enforcement of a Judgment From a Foreign Country The recognition and enforcement of judgments given in member states of the European Union are performed in Portugal under the terms of the Brussels I “Recast” Regulation. As a rule, these judgments require no special procedure and are automatically enforceable in Portugal.
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