A validade das cláusulas de sole remedy à luz do artigo 809.º do Código Civil

Abstract

The issue of the validity of sole remedy clauses in the Portuguese legal system constitutes a real challenge for Portuguese Doctrine and Jurisprudence. The fact that it corresponds to an import of clauses practised in common law countries, a legal system with specific features in relation to civil law countries, makes the task even harder. The analysis of the admissibility of this type of clause is of vital importance considering that in contractual practice its use has increased both in international contracts and in purely domestic ones. Departing from the understanding of sole remedy clauses as an expression of a true waiver
of the means of reaction to non-compliance that the law places at the creditor's disposal, we shall seek to analyse their validity in confrontation with Article 809 of the Civil Code. By forbidding the early waiver of certain legal remedies, this norm brings into discussion questions regarding the validity of sole remedy clauses, but also, on a more fundamental level, the intervening and limiting role of the legislator in private law and the grounds and rationale of state intervention.

Date of Award	9 Nov 2023
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Ana Filipa Morais Antunes (Supervisor)