TY - GEN
T1 - Disgorgement of profits in Portugal
T2 - 19th Congress of the International-Academy-of-Comparative-Law
AU - Antunes, Henrique Sousa
PY - 2015
Y1 - 2015
N2 - In Portuguese private law, as it happens in other legal systems in continental Europe, the removal of the benefits obtained by the injuring party as a result of his committing the unlawful act do not fall within the scope of civil liability. In general, the restitution of patrimonial advantages obtained via intervention in the legal rights of another has been dealt with in law according to the rules of unjust enrichment. However, in our view, there is a relationship between the presuppositions of civil liability and the recognition of the duty to disgorge illegal profits and, even, of punitive effects. According to Article 496 (1) of the Portuguese Civil Code, any non-patrimonial damage which, due to its severity, warrants legal protection is indemnifiable. We advocate that a relevant non-patrimonial damage occurs whenever an economic benefit for a third party is the result of the culpable sacrificing of rights of the injured party. It is damage which is born out of a rupture in the fair patrimonial relationship between individuals. Compensation for this damage may only, naturally, be achieved by passing into the sphere of the injured party the advantages that the third party obtained unlawfully. The restitution of profit as a consequence of civil liability is nothing more than complying with the need to satisfy the injured party, both with regard to the fixing of compensation for other non-patrimonial damage, and in the autonomous restoring of the situation prior to this harm.
AB - In Portuguese private law, as it happens in other legal systems in continental Europe, the removal of the benefits obtained by the injuring party as a result of his committing the unlawful act do not fall within the scope of civil liability. In general, the restitution of patrimonial advantages obtained via intervention in the legal rights of another has been dealt with in law according to the rules of unjust enrichment. However, in our view, there is a relationship between the presuppositions of civil liability and the recognition of the duty to disgorge illegal profits and, even, of punitive effects. According to Article 496 (1) of the Portuguese Civil Code, any non-patrimonial damage which, due to its severity, warrants legal protection is indemnifiable. We advocate that a relevant non-patrimonial damage occurs whenever an economic benefit for a third party is the result of the culpable sacrificing of rights of the injured party. It is damage which is born out of a rupture in the fair patrimonial relationship between individuals. Compensation for this damage may only, naturally, be achieved by passing into the sphere of the injured party the advantages that the third party obtained unlawfully. The restitution of profit as a consequence of civil liability is nothing more than complying with the need to satisfy the injured party, both with regard to the fixing of compensation for other non-patrimonial damage, and in the autonomous restoring of the situation prior to this harm.
KW - Disgorgement Portugal
KW - Restitution Portugal
KW - Damages Portugal
KW - Unjust enrichment
KW - Negotiorum gestio
KW - Non-patrimonial damages
KW - Punitive damages
KW - Administrative offences
KW - Private enforcement
U2 - 10.1007/978-3-319-18759-4_8
DO - 10.1007/978-3-319-18759-4_8
M3 - Conference contribution
SN - 9783319187587
VL - 8
T3 - Ius Comparatum-Global Studies in Comparative Law
SP - 171
EP - 186
BT - Disgorgement of profits
A2 - Hondius, E.
A2 - Janssen, A.
PB - Springer International Publishing AG
Y2 - 1 July 2014 through 1 July 2014
ER -