Section 9 of PORTUGUESE CODE OF

SECTION I GENERAL PROVISIONS Article 517 – Facts needing proof - The steps intended for the productions of evidence can only lie as regards the facts which form a part of the questionnaire referred to in article 515, except for the application for examination of the documents forming a part of the record in the proceedings. Article 518 – Facts which need not be proved or pleaded - Notorious facts, which shall be considered as facts of common knowledge, do not require any evidence or pleading. Also, the facts of which the court has knowledge by virtue of exercise of its functions, shall not require any pleading to be made; when the court taken cognizance of such facts, the document which is the proof of such fact shall be made a part of the record. Article 519 – Onus of proof - It is incumbent upon the plaintiff to prove the facts, positive or negative, that form the basis of the suit; it is incumbent upon the defendant to prove the facts, positive or negative, which form the basis of exception. § Sole paragraph: The court shall take into consideration all the evidence that is produced, whether or not by the party which ought to have produced it in terms of this article, without prejudice to the provisions which declare irrelevant the allegation of a fact when it is not made by a specific interested party. Article 2405 of the Civil Code. Article 520 – Doubtful cases - The doubt as to the truth of a fact and as to the burden of proof shall be resolved against the party who avails of the fact. Evidence – Art. 517 to 580, and oral evidence (Art. 620 – 646) covers the area of Indian Evidence Act, 1872.

Article 521 – Proof of Custom, local or foreign law - The party which invokes customary, local or foreign which is unknown to the court shall produce the evidence of its existence and the contents of such law; but the judge shall officiously employ all means in his capacity to obtain the knowledge of such law, and he can, in this respect, he guided by the Ministry of Justice. Article 2406 of Civil Code.

Article 522 – Right to contest and cross examine - The evidence shall be led giving right to the opposite party to cross examine the witnesses, save in special cases where the contrary is provided under the law. § Sole paragraph : The principle of hearing of the contest is to be understood in the sense that the party shall be notified, when he has not failed to appear, for all the acts of preparation and production of evidence and shall be allowed to intervene in these acts, by himself or through his attorney, in conformity with the law. Article 523 – Movables or immovables as evidence - When the party intends a moveable object which can conveniently be put at the disposal of the court, to serve as a mode of proof, he shall hand over the same in the office within the period designated for bringing the documents on record. The opposite party may examine the object there and take the photograph thereof. If a party intends an immoveable object or a moveable object which cannot be deposited in the office, to serve as a mode of proof, the opposite party shall be notified to exercise the rights which are referred in this article. The notification shall be applied for within a period in which the list of witnesses can be filed. § Sole Paragraph: What is provided in this article shall in no case prejudice the right to grant arbitrament and judicial inspection in respect of the thing in issue. Article 524 – Duty to co-operate to find truth - All the persons, whether or not the parties in the suit, have a duty to co-operate for discovery of the truth and the administration of justice, responding to what is asked, submitting themselves to inspections that is adjudged necessary, allowing what is demanded, and performing the acts that are decided. If they refuse, they shall be liable to pay fine, not being party to the suit, without prejudice to employment of coercive measures which are possible; if the person refusing is a party to the suit, the facts that are intended to be inquired shall be considered to be proved.

But the refusal shall be legitimate if the obedience would mean violation of professional secrecy or cause grave injury to the honour and respect of the said person, of any of his ascendant, descendent, brother or spouse, or cause grave prejudice to the patrimonial nature of any of the persons referred above. § Sole Paragraph: What is contained in this article is subject to the entire provisions relating to the judicial display of the books of commercial records and of the documents related to it. Article 525 – Anticipated production of evidence - Their being reasonable apprehension that the deposition of certain persons or the verification of certain facts by visual inspection will become impossible or very difficult, the deposition or the inspection may take place in advance and even before the suit is filed. § 1: The Applicant shall justify, in a summary manner, the necessity for taking the step in advance, mentioning with precision the facts in respect of which he has to call and identify the persons who have to be heard when dealing with the deposition of the party or the witnesses. § 2: When the step is to be effected before the filing of the suit, the objects and the grounds for the same shall be indicated in a concise manner and the person or persons against whom the evidence is sought to be used is to be identified. These persons shall be personally notified in furtherance of the effects of article 522; if they cannot be personally notified or if they reside outside the continent or the island where the step is to be effected, the Public Ministry shall be notified in case of unknown persons or absentees at unknown place, and an advocate appointed by the judge, in the case of absentees in a certain place. Article 526 – Extra processual value of evidence - The deposition and expert reports produced after hearing of the opposite party can be invoked in other proceedings against such party. But if the regime of production of evidence of the first proceedings offers to the parties inferior guarantees than that of the second, the deposition and expert reports produced in the first proceeding has value in the second to the extent of the purpose of the evidence. § 1: The admissions made in the pleadings can be contested in other proceedings. § 2: The provision in this article does not have application when the first proceeding has been annulled, at least in respect of the part related to the production of evidence which is sought to be invoked.

SECTION II DOCUMENTARY EVIDENCE SUB-SECTION I TYPES OF DOCUMENTS AND THEIR PROBATIVE VALUE Article 527 – Kinds of documents - The documents for the purpose of proof may be authentic, authenticated or private. Articles 527-646 – Evidence Act - Corresponding provisions in C.P.C. 1908: - oProduction, impounding and return of documents - O.XIII oSummoning and attendance of witnesses – O.XVI, oAttendance of witnesses confined or detained in prisons – O.XVI-A oHearing of the suit and examination of witnesses – O.XVIII Article 528 - Authentic document - Authentic document is that which was drawn by a public official or with his intervention as required by law. Civil Code Article 2422. Article 529 – Types of authentic documents - Authentic documents are either official or extra official. Authentic official documents are those which are drawn or issued by the public offices of the Government or of the local authorities as well as judicial acts and the documents entered in the registers of all the public offices either existing or extinct. Authentic extra official documents are those instruments or acts drawn by the notaries or with their intervention and meant to declare the wish of the parties. § 1: For the purposes of qualification of authenticity of the documents, the registers of the extinct ecclesiastic corporations, maintained in any public office, when have been compiled officially are deemed as public registers.

§ 2: Miscellaneous documents preserved in the tower of tombo or any other public offices may

be qualified as authentic if they are satisfying the requirement of the second part of this article. Civil Code article 2424, 2433.

Article 530 – Probative value of authentic documents - Authentic official and extra official documents constitute full proof in respect of acts done by authority or respective public official and in respect of truth of the facts which occurred in his presence and which he certified or could certify, unless the falsity of the document is established. In respect of facts which did not occur in the presence of authority or public official and in respect of declarations made to him it is possible to demonstrate that they do not correspond to the truth independent of the plea of falsity of the document. See Article 2425 and 2426 of this Code. Article 531 – Third party rights are saved - The rights of the persons which may be considered as third parties shall not be prejudiced by the probative evidence of the authentic documents. Civil Code article 2426. Article 532 – Indispensable nature of authentic documents - Save any express provision to the contrary when the law requires any authentic document this method of proof cannot be substituted by any other. Civil Code Article 2428. Article 533 – Defects in authentic documents - The probative value of the authentic document may be disproved in view of the absence of ingredients which the law requires for its execution or on account of falsity. Civil Code article 2493. Article 534 – Falsity of authentic documents - The falsity of the document may arise :- I. When the document is fake. 2. When some of the parties mentioned therein either as parties or as witnesses are fake. 3. If some act is mentioned therein as done when really it has not been performed. 4. There is vitiation in the context, date or signature of the document. Civil Code article 2496.

Article 535 – Verification of authenticity - The documents of the period before the sixteenth century, whose authenticity is contested, shall not constitute evidence without previous diplomatic examination done in the ‘Torre de Tombo’ from which results its authenticity. Torre de Tombo’ = ‘tower of records’, is the Portuguese National Archives.

Sole Paragraph: This examination shall be ordered by the director of archives, by virtue of the order of the respective court. Article 2497 of the Civil Code.

Article 536 – Definition and probative value of authenticated documents - An authenticated

document is a private document with authentic recognition. The authenticated documents have the same probatory force as authentic documents. Article 160, paragraph 2; article 204, paragraph 1 and article 205 of the Notarial Code. Article 537 – Private documents - Private documents are the ones that are written or signed by any person, without intervention of a public officer, and which are not authentically recognized. Article 2431 of the Civil Code. Article 538 – Disputing the documents - The text and the signature on a private document shall be considered as recognized when it is not expressly challenged by the party against whom the document is produced. The challenge may assume two forms. The person challenging can put up a case of falsity or can limit himself to declaring that he does not accept the text and the signature as true. In the first case, it is incumbent upon the person challenging to prove the falsity by following proper procedure; in the second case, it is incumbent upon the party which produced the document to convince of its veracity, by examination or by any other mode of proof. In both the cases, the challenge shall be made within the period in which the falsity of documents may be argued. Article 365 of this code. Article 539 – Effect of admitting signature - If the party recognizes, expressly or impliedly, the signature on a private document as true, or if the signature is judicially regarded as recognized, the text of the document has to be considered as true, except in case where signature has been affixed by a third person at the request of the executants, or if the party alleges and proves that the document was blank, in full in part, when signed, and that the blank portion of document has been filled without any authority. § 1: When the document contains marginal notes, interlineations, erasures, or amendments, such alterations shall have validity if those words have been repeated before the signature or if is \

shown as made by the signatory himself. § 2: The abuse in filling up a document consists in inserting recitals or stipulations contrary to what is agreed upon with the signatory. Article 2432 and 2433 of the Civil Code. Article 540 – Value of signature on request - The signature on request shall be considered to be true when it is recognized by the notary with the declaration that the request was made in his presence, or when the party which ought to oppose the document, recognizes that the request was made, or when it is accompanied by the fingerprint of the person making the request. The veracity of the document is to be inferred from the veracity of the signature at request when it is proved that the person for whom, or in whose name, the document is signed knows and can read its contents. Article 2434 of Civil Code, Notarial Law in force in Goa, Daman and Diu. Approved by Law No.8373 dated 18/09/1922, Article 75 clause 7. Article 541 – Value of documents not usually signed - The entries, domestic registers and other writings which are not usually signed shall be considered to be arising from the person to whom it is attributed if the party which ought to oppose does not challenge them in terms of what is contained in article 538. In case of challenge, the provisions contained in the same article shall be observed. Article 2439 and 2440 of Civil Code. Article 542 – Probative value of private documents reputed as true - The private documents, the veracity of which is established in terms of articles 538 to 541, prove that the executants of the documents made the declarations referred in it. The facts consistent with those documents shall be considered to be correct, in so far as they are contrary to the interests of their executants; but the person who seeks to take the benefit of such facts also has to accept the facts contained in such documents which are not favourable or otherwise prove that they are not true. § Sole Paragraph: The private writing is not a proof against person who has written or signed it, if it was intended to leave his possession, but never did, except if it is shown that the retention was improper. Article 2432 and 2433 of Civil Code.

Article 543 – Free judicial appreciation of other documents - The veracity of the private

documents which are not contained in the conditions foreseen in articles 538 to 541 shall be freely appreciated by the judge.

Article 544 – Value of creditor’s notice on the credit instrument - Notings written by the

creditor, at the follow-up, in the margin or at the reverse of any document of obligation, although neither dated not signed, constitutes evidence in favour of the debtor. Article 2438 of the Civil Code.

Article 545 – Date of private documents in relation to third parties - In respect of third

persons, the private documents shall be considered as bearing the date of the day on which any of the following facts have taken place: 1. The authentic recognition of the writing; 2. The death of any of the signatories; 3. The filing of any document in the court or in any public department. Article 2436 of Civil Code.

Article 546 – Burden on the person to whom document is attributed - The person who

opposes any writing, ostensibly made or signed by him, shall be required, to declare if the writing or the signature is effectively his, if the person producing the document so demands. Article 2435 of the Civil Code. Article 547 – Value of photographs of document - The photocopy of a document is valid only as starting point of evidence.

Article 548 – Reconstruction of documents - The documents which have in any manner

disappeared may be reconstructed under the supervision of the Court. Article 549 – Legalization of documents issued in foreign country - The authentic documents executed in foreign countries, in conformity of the law of that country, shall constitute proof in the same manner as documents of same nature drawn or issued in Portugal, provided that the signature of the public officer is recognizance by diplomatic agent or the Portuguese consulate in

the respective state and the signature of such agent is recognized in Portugal in the ministry of foreign affairs. § Sole Paragraph: If the private documents drawn outside Portugal have been validated by a foreign public officer, the validation shall not be of any effect till it has obtained the recognition as is required under this article. Article 2430 Civil Code. SUB-SECTION II PRODUCTION OF DOCUMENTARY EVIDENCE Article 550 – At what stage documents are to be tendered - The documents intended to be produced in support of the action or of the defence shall be filed along with the pleading in which the facts intended to be proved are pleaded. If not, they may be produced later until the end of the trial in the first instance, but the party shall be liable to pay fine, except where it is proved that he could not file them till that time. After the conclusion of the trial, the documents which could not be filed until that stage shall be admitted only in case of appeal. The documents intended to be used as evidence of the facts occurred subsequent to the pleadings, or the filing of which has become necessary by virtue of such subsequent occurrence, may be produced at any stage of the proceeding. § Sole Paragraph: The opinion of advocates, professors, or technical persons, which may be filed at any stage of the proceedings, shall not be treated as documents. Article 551 – Notice to opposite party - When the documents are filed with the last pleading, or subsequently, the filing shall be notified to the opposite party; except in case where he is present or if the documents are filed with pleas which allow reply. Article 552 – Possibility of using documents in the possession of the Opposite Party - When the party intents to make use of the document which is in possession of the opposite party, he shall apply that the opposite party shall be notified to produce on record the document within the

prescribed period. The application shall indicate of what the document forms a part and what are the facts that are intended to be proved by means of the document. If these facts are covered by the issues, or if they satisfy the necessary requirement to be included for production of such documents, notice shall be issued. Article 553 – Penalty for the party who does not furnish the documents - If the party that is notified, neither files the document, nor makes any declaration, the facts which are proposed to prove, are deemed to be true and correct. The same facts shall also be considered to have been proved when the person notified admits that the document is in his possession and refuses to produce the same or when he declares that the document is in a specific place or in the possession of a third person and it is found that such declaration is not true. If the person notified declares that he does not possess the document, the applicant shall be allowed to prove, by any means, that the declaration is not true. The court shall freely appreciate such evidence and confirm the conviction at which it arrives, and shall thereby apply or not the sanction as provided in the first part of this article. § Sole Paragraph: The declaration which is referred in the second part of this article shall be irrelevant when the party has already affirmed that he is in possession of the document or has made references or acted upon the facts from which his possession can be necessarily inferred, save in case where he produces evidence which affirms the involuntarily destruction or loss of the document.

Article 554 – Use of documents in the power of third persons - If the document is in

possession of a third person, the party shall apply that the possessor be notified to deliver the said document in the office within such period as is prescribed. The provision of article 552 is applicable to the application and order under this article. § 1: If the document is delivered, it shall be made a part of the record. § 2: If the person notified neither delivers the document nor makes any declaration, the judge can order necessary steps for seizure and shall impose fine on the person notified. The same shall happen when he declares that he does not possess the document and the applicant produces evidence to show that the statement is not true. § 3: If the third person pleads reasonable cause for not having effected the delivery, he shall be bound, under the sanctions prescribed in the previous paragraph, to make available the document

for the purpose of being photographed, judicially examined or to draw necessary copies of it. § 4: The provisions of this article and its paragraph do not apply to commercial book keeping or documents relating to it.

Article 555 – Requisition of documents by Judge - The court may, suo moto or upon the

application of any of the parties, requisition particulars, technical opinions, documents, maps, photographs, drawings or objects which it considers necessary for the clarification of the truth. The requisition may be made from any public offices, from the parties to the suit or the third parties. § 1: The Government offices are bound to comply with the requisition, except if it relates to the confidential matter or reserved category or to proceeding in camera. § 2: The parties and third persons who do not comply with the order shall be liable to pay fine, except if they justify their stand, without prejudice to employment of coercive measures which are required for the purpose of enforcement. § 3: The expenses incurred on account of the requisition shall be charged as costs payable to the Government offices and for the third party which has initiated the procedural step or to whom it benefits. § 4: The production shall be notified to the parties, strangers to the requisition or to such production. Article 556 – Power to refuse irrelevant or unnecessary documents - The court has the power to refuse the production of impertinent and unnecessary documents and to order that such documents be withdrawn from the proceedings. Article 557 – Destiny of documents - The documents shall form part of the proceedings and cannot be withdrawn until the judgment or the order which ends the suit operates as res judicata. If the retaining of the documents as a part of the proceedings is not convenient, it shall be determined, suo moto or on the application of the parties, that the documents be kept in the custody of the court office, without prejudice to the right of the interested parties to examine them. § 1: At the end of the suit, the documents belonging to the third persons shall be immediately

delivered to them and those of the parties shall only be delivered to them by way of an application made in that regard. In respect of the certificate of documents which permanently exist in government departments, the indication of the department and of the book and its respective place shall remain in the records; in respect of other types of documents, the indication of the type of the document and that of the person who had delivered it shall remain in the records. § 2: The documents referred in the first part of the second phase of article 167, shall be delivered to the respective parties independent of the application made by them. § 3: The documents can be delivered even before the end of the suit when the person to whom it pertains justifies the necessity for its immediate restitution. In such a case, the entire copy shall remain in the record and the person to whom it pertains shall always be bound to produce the original when the same is demanded. Article 558 – Sanctions for violation of fiscal laws - The documents which are not properly stamped or which relate to transactions which are subject to tax, and do not show if such tax is paid promised in terms of the law applicable, shall not be admissible, without prejudice to the appreciation of the respective records of violation. Article 559 – Copies of illegible documents - If the writing on the document is difficult to read, the party shall be bound to furnish a legible copy. If the party does not comply with the same, it shall be liable to pay fine and the copy shall be produced on record at the cost of such party. SECTION III PROOF BY ADMISSION OF THE PARTIES SUB-SECTION I KINDS OF ADMISSION AND ITS PROBATORY FORCE Article 560 - Admission - Admission is the recognition by a party of the right of the opposite party or of the truth of the fact pleaded by the latter.

Article 2408 of Civil Code. Article 561 – Kinds of admission - Admission may be judicial or extra-judicial. Article 2409 of Civil Code Article 562 – Judicial admission - Judicial admissions may be made in the pleadings, by record, in the deposition or in any other manner admissible in the proceeding. The admission in deposition can only be made by the party himself. The admission by record can be made by the party or by the holder of mandate with special powers. Article 2410 of Civil Code. Article 563 – From whom deposition of party can be sought - The deposition of the party may be demanded from the persons who have judicial capacity. The deposition of minors of more than fourteen years of age and of the interdicted by prodigality, as well as that of the representatives of incapable persons and of the collective persons can be applied for; the deposition shall have the value of admission to the precise extent to which the persons making them can be bound, and such admissions may also bind their representatives. Each of the parties can not only apply for the deposition of the opposite party, but also for his fellow parties. The deposition of the person assisting the case can also be applied for. Article 2411 of the Civil Code. Article 564 – Facts of which deposition can be sought - The deposition may relate to the facts of which the deponent has personal knowledge or of which the deponent ought to have knowledge not being in respect of facts of criminal nature or involving moral turpitude in respect of which the party has been prosecuted. Article 2411, no.2 of the Civil Code. Article 565 – Probative value of judicial admission - Judicial admission constitutes conclusive proof against the party making such admission, except: 1. If it is declared insufficient by law or if it depends on a fact, the recognition or investigation of which is prohibited by law. 2. If it results in loss of rights that the person making the admission cannot renounce or, in respect

of which, he cannot transact. § Sole paragraph: An admission made by an advocate appointed by Court or by Public Ministry, as representative of the State, of uncertain persons or of the absentees has no probative value. Article 2412 of Civil Code Article 566 – Value of deposition of assistant at the request of co-party - The deposition of the assistant called for on the application of a fellow party shall be freely appreciated by the judge, taking into consideration the circumstances and the position of the person who deposes and who applied for it. Article 567 – Revocation of Judicial confession - Judicial admission can be revoked only in case of an error of fact, in a suit filed for this purpose. The act of revocation does not obstruct the progress of the suit in which the admission is made. Article 2413 of Civil Code Article 568 – Extra Judicial admission – Extra judicial admission can be authentic or private. The first is the one that is done by public deed or public act; the second is the one that is done verbally or by a private document. Civil Code Article 2414 and 2415.

Article 569 – Evidentiary value of extra judicial admission – Evidentiary value of extra-

judicial admission shall depend upon the form in which it has been made. If it is verbal, the rules relating to oral evidence shall be applicable; if written, the rules relating to documentary evidence shall be applicable. Article 2416 of the Civil Code. Article 570 – Non retractability of admission - The admission is, in principle, irrevocable. But the admission of facts, expressed in the pleadings can be revoked until the opposite party has specifically accepted the same. Article 571 – Indivisibility of admission - Admission is not severable. He, who desires to take

benefit of the part of the admission that is favourable, has to also accept that part of it which is not favourable. Where in the admission made by a party in answer to the cross examination posed to him, he has added new facts which serve as a ground for an exception or a counterclaim in his favour, it shall be severable. Article 2417 of the Civil Code. SUB SECTION II RECORDING OF DEPOSITION OF PARTY Article 572 – Application for recording - Where the examination of a party is sought, the facts over which such examination is sought shall be specifically mentioned failing which examination shall not be permitted. The party shall be notified with a warning that if he fails to appear, the facts in respect of which examination is sought shall be deemed as admitted. Article 573 – Where it is recorded - The questions shall be given at the time of the trial, except where the deponent resides in the different jurisdiction, if he is unable to put in appearance before in the court or it is urgent. The court may, however, direct that the questions be answered at the hearing of the trial, by a party residing outside the judicial district in which the suit is in progress if it adjudges it necessary and the obligation for appearance would not result in a grave sacrifice for such party. § Sole Paragraph: Where it is shown that the party is unable to appear in the court, the questions shall be answered at the residence of such party. See also Article 653 (b) of this Code.

Article 574 – Sanctions for non appearance - The party, personally notified to answer the

questions on the prescribed day and time does not appear, the facts in respect of which the answer were to be sought and he had an obligation to answer shall be deemed to have been admitted, if in the following 5 days from day for which he was notified, he does not prove a just impediment. The penalty shall be the same of having appeared and refused to the answer the questions.

§ Sole paragraph: If the party proves just impediment, a new day shall be designated for answering the question, either in the court or at the residence, depending on the circumstances. If illness is the cause of the impediment, the judge get may get the party examined by a doctor of his own choice. Article 575 – Order of deposition - If both the parties have to answer the cross examinations before the court, the defendant shall answer first and thereafter the plaintiff. If more than one plaintiff or defendant have to answer the question, their fellow parties who have not yet deposed shall not be allowed to remain present for the recording of evidence of any of them and when they have to be examined on the same day, they shall be gathered in a hall, from where they shall emerge in the order in which they have to depose. Article 576 – Oath - Before the deposition, the court shall impress upon the deponent the moral significance of the oath that he will perform and the duty that is on him to be scrupulously faithful to the truth, cautioning him about the sanctions that result from false declarations; and thereafter shall call upon the party to take the following oath “I swear before God, that I will state the full truth and only the truth”. If the deponent declares that he prefers to swear upon his honour, the oath shall be as follows: “I swear by my honour and by my conscience that I will speak the full truth and only the truth”. § Sole paragraph: The refusal to take the oath amounts to refusal to answer the questions. Article 577 – Interrogation and replies - The judge shall interrogate the party on each of the facts which should be the object of the deposition. The deponent shall reply to the questions put to him with precision and clarity, and the opposite party may seek the clarifications required to clarify and complete the reply. § 1: The party cannot bring his answers in writing; but he can take the help of any document or note of dates or facts, to answer the questions that are put to him. § 2: When the party states that he does not remember or that he does not know, the fact is to be considered to be admitted. See also Article 494, paragraph 1 of this Code. Article 578 – Intervention of advocates - The advocates of the parties may remain present while

the party is answering the questions in the cross examination, and apply for what they think fit; but they are not to question the party. § Sole paragraph: If it appears to the advocate for the deponent that the question is inadmissible, in form or in essence, he shall raise objection to the opposition, it shall be decided immediately. Article 579 – Recording of deposition - The answers to the questions shall be written when the answers are not given before the collective court. The writing is to be done by the judge, and the parties of their advocates may raise objections as they think fit. The judge shall reproduce with great integrity and brevity, the declarations of the party answering the questions. On the completion of the questioning, the same shall be read to the party who shall, confirm or seek to make rectification, which may be adjudged necessary. The answers to the questions shall be made a part of the record. SECTION IV OATH

Article 580 – Abolition of oath as a form of evidence - Oath is abolished as a mode of

evidence, as much in respect of merits as in case of supplementary proceedings. SECTION V EVIDENCE BY ARBITRAMENT SUB-SECTION I TYPES OF ARBITRAMENT AND THEIR EVIDENTIARY VALUE Article 581 – Types of arbitrament - Evidence through arbitrament may consist in examination (in case of movables), inspection (in case of immovables) or valuation. The examinations and inspections have the purpose of investigating the facts which have left marks or signs or can be subject to inspection or visual examination. If the investigation is of movables it is called examination; if it is in respect of immovables it is called inspection.

The valuation has the purpose of finding the value of assets or rights. See Article 2418 of Civil Code. Articles 581-606 - There is also evidence by Arbitrament. This is much more detailed than our provisions of appointment of commissioner, inspection, experts etc. Comment – Arbitrament means investigation into facts which have left marks or signs or can be subject to inspection or visual examination; as also determination of value of assets and rights. Examination is for movables. Inspection (“vistoria”), normally site inspection is for immovables. The word “vistoria” literally means an eye’s look or a look with the eye. 1.Arbitrament is different from arbitration. 2.Article 2418 of the Civil Code - The evidence by way of experts, of moveables or immoveables, is meant to investigate facts which have left vestiges or may be subject of examinations or subject of inspection. 3.Vistoria means inspection, surveying or visit. It is an inspection accompanied by experts from both the sides and also expert appointed by the judges who express their opinion on the subject. 4.Arbitrament is an opinion expressed freely by the person appointed for the purpose. There are suits which are decided through arbitrament viz. under article 1051 to 1067. It is different from arbitral tribunal. 5.Portuguese Civil Procedure Code in article 1561 provides for arbitration as in Arbitration Act. Article 582 – Evidentiary value of examination and inspection - The probative value of an examination and of an inspection shall be freely appreciated. See Article 2419 of Civil Code. Article 583 – Evidentiary value of assessment - When the valuation depends solely of arithmetic operations or quotations in the official list, the valuations shall be based on these. In other cases of the final fixation of the value is the function of the judge who shall to attend to all the data available in the file and shall collect all the necessary information and may also hold judicial inspections if found necessary. See also Article 616 of this Code. SUB-SECTION II EXAMINATION AND INSPECTION Article 584 – Stage upto which examinations and inspection may be sought - The arbitrament by way of examination or inspection and the production of the full books of account may be applied for within five days from the day notice of article 516 is given, but if subsequently more documents are annexed and the opposite party doesn’t agree to accept the handwriting and the

signature, it is lawful to ask for examination of such documents: within five days next after the declaration or knowledge of the same by the party who produced them. § Sole paragraph: The party who applied for such procedural step is not entitled to withdraw the same without the consent of the opposite party. Article 585 – Framing of queries - The party who applies for examination or inspection shall present the queries to be replied by the experts. If the court is of the view that the procedural step applied for is neither irrelevant nor dilatory, it shall issue notice to the opposite party to present its queries; the court further shall upon examination of the queries shall declare which of the queries do not form part of the questionnaire and then will fix the day and time for the appointment of the experts. § 1: Each party may formulate queries on all the items of the questionnaire even though they have been formulated by the opposite party. § 2: The parties may apply that the queries formulated be kept secret till the date of the inspection, when there is apprehension of alteration of the facts which the experts are to inquire. If the court finds that the apprehension is well founded it shall keep the queries duly sealed and issue the order for carrying out the inspection in the general manner. § 3: Till the date of the inspection the court may formulate queries which are found convenient. § 4: If till the date fixed for appointment of the experts the parties produce application in writing signed by both the parties with the mention of one or three experts appointed by them by agreement, such application shall be annexed to the file, as acceptance of the appointment made by the parties. Article 586 – Appointment of experts - If the parties are in agreement they shall choose one or three experts. In the absence of the agreement each party shall choose one and the judge shall appoint the third. If the arbitrament has been ordered suo moto and the question of fact is of great simplicity, the procedural step shall be carried by a sole expert appointed by the judge. In the first arbitrament, there shall be not more than three experts. § 1: If there is more than one plaintiff or more than one defendant the appointment shall be done by those who are present and in case of disagreement, the opinion of the majority will prevail. If the plaintiffs and defendants are not present or there is no agreement between them for majority,

power vests in the judge.

If both the parties are absent, it is understood that they have withdrawn their prayer for

examination by experts. § 2: Where the parties are not in agreement as to the appointment of the expert the appointment shall be done in the first place by the judge, and if possible a specialized functionary will be chosen. The parties are not entitled to choose functionary of a rank superior to the one appointed by the Court. Article 587 – Appointment of experts for steps to be taken through letter - If the examination or inspection has to be made by letter of request, the appointment of the experts shall take place before the court where letter of request is addressed, except where till the dispatch of the letter of request, parties, by application, indicate the experts as per paragraph 4 of article 585. In such case such application shall be forwarded along with letter of request.

Article 588 – Impediments – The following persons cannot act as experts: 1. President of the Republic; 2. Members of the government; 3. Members of National Assembly; and of the Corporate Chamber when they are in active exercise of their functions, except if assembly or chamber gives them permission. 4. Archbishops and Bishops; 5. The military staff in effective service and government servants who are to render service in the secretariat or offices; except if permission from their superior is obtained; 6. The government servants in cases in which one of the parties is the government. 7. The government servants of the general administration of water and electricity department who are rendering service in particular division, if the dispute is in connection with supply of water or works connected thereto. 8. Those who do not have the qualification and to hold arbitrament when the same involves special knowledge

§ 1: In the case of nos. 3 and 5, the appointment will be of no effect, if till that day the sanction from higher authorities or permission has not been produced. However the licence as required as

clause no. 5 is not necessary when the government servant intervenes by virtue of provision of law and the government servant has been appointed considering his special and technical competence. § 2: The impediments referred to in clauses no 6 and 7 cease in case the respective employees have been appointed by the government or by the court. § 3: The impediments may be opposed by the opposite party or by the experts and may be raised suo moto till the date of the inspection. But breach of clauses no. 6 and 7 read with Paragraph 2 will give rise to nullity of the procedural step which can be raised by the opposite party and shall be declared ex officio till the date of the judgment in the first instance; besides the government officer appointed should recuse from intervening until he is expressly ordered by the court, failing which he incurs disciplinary liability. See Articles 623 and 624 of this Code. Article 589 – Exemptions - The following persons may refuse to act as experts: 1. The councilors of the State, judges and magistrate of the Public Ministry in effective service; 2. Ecclesiastics in charge of souls; 3. Those who are of more than 70 years of age. § 1: The recusal shall be sought by the appointee within the period of 24 hours from the date of the communication made to him and the same is to be granted provided the ground invoked is satisfied. § 2: In the case of clause 3 the applicant shall produce certified copy of the birth registration or produce the identity card. If it is not possible to produce immediately the said document, the same shall be done within next three days. In the case of no. 1 and 2 the applicant is not bound to produce the proof of the ground alleged. If the judge has doubts he will hear the parties and may ask for the information which he deems fit. Article 590 – Recusals - The experts may be permitted to recuse on the same grounds available to the judges, in accordance with article 127 and also those mentioned in clauses no 2 and 4 of article 122 in the part in which these grounds do not constitute impediment in terms of clause no 9 of Article 588. The recusal may be opposed by any party, when appointed by the court and by opposite party if the expert is appointed by the parties. The objection may take place till three days after the

appointment. § 1: If the recusal is raised at the stage of appointment the same shall be decided immediately and work of the examination shall be continued except where the expert who recuses has to produce evidence which is unable to produce immediately. The decision on recusal may be adjourned and will be passed on the designated day within the period of eight days and the appointment will become final without any further notice. § 2: In the Judicial divisions where there is more than one court, the arbitrament shall be suspended as soon as there is a recusal and the same shall be decided by the judge after following what is prescribed by the preceding paragraphs. § 3: Save in the case of extreme emergency between the day of appointment of the expert and the date fixed for the purpose of the judicial work at least three days gap shall be maintained. Article 591 – Finality of decisions - From the decision passed on impediments, excuses and recusal no appeal lies. Article 592 – Record of appointment of experts - If at the time of appointment of experts no objection of any kind is raised, note will be made on the file about the appointment of each of expert and by whom he was appointed. In case any question arises the same shall be recorded in the file.

Article 593 – New appointment - If the recusal of any appointment is held maintainable, or

experts appointed have expired or could not be summoned and it was not possible to hold the inspection on account of supervening motive or unforeseen circumstance, the parties by agreement or respective party may make fresh appointment provided that the step fixed is not adjourned. In all other cases including granting of recusal and impediment raised after the act of the appointment, the power to substitute is within the jurisdiction of the court, there being no ground for making application for recusal if the party has chosen another expert. The same procedure shall be followed when any expert does not appear on any ground. § Sole paragraph: If the party is entitled to make fresh appointment the same may be made by application before the date fixed for inspection and opposite party shall be given notice or may

ask for recusal within the next 24 hours and even at the time of the inspection. In the last case if there is a recusal which has been accepted by the court and party is unable to make substitution, the fresh appointment is to be made by the court and party is prohibited from raising objection against the appointment by the expert who has tendered the refusal. Article 594 – Experts from outside jurisdiction - The parties may chose experts from outside the judicial division, who shall not be notified, but the party who nominated them being bound to ensure their attendance. The court may appoint experts from outside when there are no fit persons within the judicial division as the matter requires specialized knowledge. In this case the emoluments to be paid to the experts shall be fixed by the court taking into consideration time and importance of the work and category of the person who has rendered the service and inconvenience sustained by him. Allowances shall be paid to the experts in advance for their dislocation. Article 595 – Experts which Court should appoint - In all the questions over the waters and related works which are not private in nature, the judge shall always appoint as expert, an engineer from the concerned office of the water resources department. In the case of examination of accounts and commercial book keeping judge shall appoint judicial administrators in the case of insolvency; when this is not possible the appointment shall be of persons qualified through institutions of middle or higher education in commerce if available. In other examination and inspection which require technical knowledge the experts appointed by the court shall, as far as possible, be appointed from amongst the officials from the respective services. Article 596 – Commencement of steps - Once the experts have been appointed date time and place will be fixed for the starting to the inspection. The experts who were to be produced by the parties shall not be notified, even if they reside in the judicial division of the proceedings.

Article 597 – Inspection by experts - The experts shall solemnly undertake to perform the

functions which have been entrusted to them and after receiving the queries shall hold the inspection in making necessary inquiry to be able to respond to the queries. The judge shall be

present to the inspection if his presence is solicited by the parties and that event costs shall be borne by the applicant. The parties may for themselves or through their advocates make necessary observations which they deemed fit and shall furnish the clarifications sought by the experts. If the judge is present, they may also make any application which is found necessary in relation to the object of the inspection. The experts have the right to avail of all the necessary means for proper exercise of their functions. They may also solicit the information from the file. However they cannot make any change at the site like destruction, elimination of the thing submitted to their inspection without any order from the court. Article 598 – Fixing time for steps - Whenever presence of the judge is not solicited, the latter shall fix the time within which the inspection will be carried and the same procedure shall be followed when presence of the judge was solicited and the inspection does not end on the same day. At the end of each section, the expert shall give the knowledge to the parties of the day when the inspection is to be continued. § 1: The time may be extended once, if there is a justified reason. § 2: If any of the expert appointed by the parties does not give his report within the time, the report will be collected only from the other experts. If the defaulter is the expert appointed by the court, in his substitution new is appointed and fine will be imposed on the former. § 3: Between the conclusion of the inspection and hearing of the case time gap should be the minimum.

Article 599 – Reply to queries - When the experts are ready to answer the queries they will

report the matter to the office. Thereupon the judge will fix the date for their replies which shall be given in the presence of the judge at the site but in the case of examination they may be given in the court. Thereafter a report shall be made where after each query respective answer is written, indicating whether it is given by all the experts or by some of them and in the affirmative by whom. The experts should submit their opinion in resume but with justification; however, they may

submit also a detailed report where they have noted what verification they made in lower court, which information they collected and from whom and what is their opinion on the facts they collected. In this case, the report shall contain queries and answers to each of them with great clarity and simplicity. § Sole paragraph: Where the judge attends the inspection and the experts are able to give their opinion on the same day; report with answers shall be immediately prepared. Article 600 – Objections - Parties are not to be remain present at the time of the replies; but they are to be read to them after they are written. If they are of the view that there are some deficiencies, obscurity and contradiction, they may formulate immediately their objections; if they are accepted by the judge, he will direct the experts complete, harmonize or clarify their replies of all the details mentioned in the report. Article 601 – Verification of correctness of plans and other documents finalized by parties -

If the parties have produced plans, drawings, photography’s or any other type of graphic

expression, the experts are bound to either to acknowledge their correctness or point out the differences which are found therein.

Article 602 – Filing of exhibits by experts - It is lawful to the experts to present drawings,

plans, maps or any other documents so as to clarify or justify their opinion; but for the purposes of accounting, only on those will be considered which the court finds useful. Article 603 – Examination of handwriting - Examination for the purpose of identifying hand writing shall have for its basis the comparison of the handwriting which is intended to be identified with another which is known as being of the person to whom it is attributed. In order to make the comparison, the judge may requisition any documents which exist in the archives or public offices. The examination takes place in the office or archives if the documents cannot be taken there from. If there is no writing with which any comparison can be made of the hand writing to be examined, the person to whom the hand writing is attributed shall be notified personally to write, in the presence of the experts, the words which they may indicate. If the person resides in another

judicial division letter of request shall be issued accompanied with a paper sealed containing the indication of the words that the notice shall write in the presence of the judge where the letter of request has been addressed. The letter shall be remitted and returned officially. Article 604 – Examination by official scientific agencies - In the judicial division of Lisbon, Porto and Coimbra, all medico-forensic examinations shall be done by the Institute of Legal medicine, those of acknowledgment or hand writing and any other which the same institute are specially equipped to conduct. In the same judicial division is the examination which require particular knowledge of some clinical speciality or which demand investigation proper of laboratories or adequate scientific institutes shall be made in the respective official establishment by the professors or technicians of the same establishment. Whatever is provided above has application to any other Judicial division as to the things or persons which may be the subject of examination may, without inconvenient be transported to the seat of the institute or establishment. The examination shall be made in Lisbon, Porto or Coimbra, according to the High Court Jurisdiction to which the Court belongs.

Article 605 – Examination by scientific establishment - The examination referred to in the

previous article shall be requisitioned to the director of concerned institute or official establishment by way of official letter signed by the judge which shall indicate the facts to be inquired and the time to conclude the examination to maintain the normal course of the proceedings. The result of the examination shall be submitted as a report addressed to the judge. Along with the report the parties shall be given notice and they may object within three days against any deficiency or obscurity or apply, within legal time for a second examination by the Medico Legal Council, if the first examination was made by the Institute of Legal Medicine, in the rest to the extent applicable, provisions relating to medico-forensic examinations in penal proceeding shall apply. Article 606 – Appearance of experts at hearing - The experts shall be notified to appear at the

time of trial and they shall furnish all the clarifications which may be asked from them. If they reside in another Judicial division, the parties may produce them voluntarily and the judge may order that the third expert be notified by letter of request to appear.

SUB SECTION III VALUATION Article 607 - Legal principles for valuation - In the determination of the value of assets, the following shall be observed: 1. The properties will be valued, taking as basis the net income recorded in the matriz failing which the average income or produce of the last five years; when the income is in kind, the average market price during the same period shall be considered. After deducting the expenses towards cultivation and conservation, where there is no collectible income and upon multiplying the net income by 20 installment the normal value shall be obtained, which may be increased or decreased depending upon the length of the period for which income can be increased or decreased so long as the land yields the same produce or rent or the use to which it can be put up or any other circumstances which may have bearing on the market value; 2. The movables shall be valued taking into consideration their substance, utility, and state of conservation. If they generate any income, the same shall be taken as basis for fixation of rent, in accordance with the preceding number; 3. The value of any other perpetual or temporary installment, which should be realized during 20 years or more shall be equal to 20 annual installments. The value of annual installment, whenever it is in kind shall be fixed by the average price of the commodities during last five years; the prices fixed by municipality if there is any and is accepted by the parties shall indicate average price. If the installment is emphyteutic and if there is any ‘laudemium’ (premium payable for transfer of emphyteusis; acknowledgement money), the valuation of “dominion directum” shall be obtained adding one more installment to the capital of 20 installments. The value of the ‘laudemium' shall be obtained by deducting from the value of the property the amount corresponding to 20 installment and dividing the rest by the rate of the instalment plus one; 4.The value of any other temporary installment shall be fixed by the sum of installments

yet to be paid, after making necessary deductions so that the capital and the respective annual interest of 5% make up at the end of the period the total amount of the installment yet to be paid; 5. The value of the usufruct, of the use and habitation of permanent nature shall be obtained multiplying by 10 the annual income; but the produce may be increased or decreased depending upon the probable duration of the respective right; 6. The rights of easement and similar rights shall be calculated by approximate estimate of benefits which are derived from easement and the burdens towards inconvenience caused; 7. Value of any right and suit shall be determined taking into consideration the difficulties to make the right effective; 8. Value of the foreign currency, shares, documents and certificates of public debt and other

securities and commodities which have an official quotation or listed price, shall be the said

quotation or listed price; 9. The value of a commercial or industrial establishment, considered as an unit and of the shares of the companies, by other than share holding shall be determined by the latest balance sheet. § Sole paragraph: If the shares or securities have no listed official price the value shall be fixed by the Chamber of Brokers and by annexing to the file the respective declaration. Articles 607-612 - Valuation rules would be applicable for Inventory Proceedings but they would need to be amended and updated to meet present circumstances. Article 608 – Who does the valuation - The valuation shall be done by the office when it is dependent solely on arithmetical calculations and by experts when inquiry or inspection is needed. In the case of “dominium directum” with ‘laudemium’, the experts shall only determine the annual value of the installment in kind if necessary and value of the property and the rest is done by the office; in the case of no. 4 of the previous article fixation will be done if necessary of the annual installment in kind. The value of the precious stones and precious metal shall be done by one expert appointed by the judge preferably amongst the goldsmiths.

Article 609 – Valuation by experts - The valuation shall be done by the experts without

assistance of the judge on the basis of list of the assets with all particulars being duly numbered and described. Below such list the value with reference to each number will be given and giving reasons in accordance with the legal basis and the outcome of the operation.

If there is any deficiency or wrong description, necessary additions and rectifications will be done. § Sole paragraph: If the valuation is not done within time the experts shall be fined. Article 610 – Rectification of valuation – If, after the valuation is done, it is found that the circumstances are different from those which were considered, the value shall be rectified by office, wherever possible, otherwise by the experts who intervened. Article 611 – Error in calculation - If there is an error in the valuation or final assessment made in any account which does not relate to the cost, any party may require rectification of such error within five days from the notice. On the application the other side will be heard. If the later party agrees that there is error then the final account will be reviewed depending upon the agreement. If there is no agreement the judge will direct the office to give its say and thereafter to pass a decision.

Article 612 – Use of the regime of examination and inspection - In all the other aspects

wherever applicable what is provided in the previous sub section will follow. SUB- SECTION IV SECOND ARBITRAMENT Article 613 – Time and purpose of second arbitrament - Any party may apply for a second examination, inspection or valuation within a period of eight days after the conclusion of the first and the court suo moto may also, at any time, direct it, if found necessary. The second arbitrament is meant for investigation of same facts or fixation of the value of the same assets which were the subject matter of the first. Article 614 – Regime for second arbitrament - The second arbitrament is governed by the same provisions established for the first except following modifications; 1. In the second arbitrament the experts of the first arbitrament shall not intervene nor may the experts be of an official rank lower than the former; 2. The number of experts for the second arbitrament shall be two more than in the first; 3. If the experts are five then in the absence of agreement each party appoints two and the judge

appoints the fifth. Article 615 – Value of the second arbitrament - The second arbitrament does not invalidate the first. The court may freely appreciate one and the other considering the circumstances and other evidence which may be produced. SECTION VI JUDICIAL INSPECTION Article 616 – Purpose - The judge or collective court whenever found necessary, may, by its own initiative or upon the application of the parties, visit the site in question, in order to inspect the site to satisfy about any fact which is necessary for the decision of the case. Such a step may also serve the purpose of the judge appraising the site in order to frame questionnaire to which reference is made in article 515. Articles 616-619 – Judicial Inspection Article 617 – Intervention of parties - The parties shall be notified of the date and time of the inspection and they may themselves or through advocate furnish to the judge the clarification desired by the judge and also to bring to his notice the facts which are of interest for the resolution of the dispute. Article 618 – Technical assistance - The judge may be accompanied by a person who has the technical competence to clarify in respect of examination and interpretation of the facts which require consideration. Such person shall be designated in the order which directs the inspection and requisitioned from the concerned office, if he is a public functionary, or notified to remain present. § Sole paragraph: The technician shall also be requisitioned to remain present at the trial, when the inspection has not been carried by the collective court. Article 619 – Inspection report - When such procedural step is not carried by the collective court, record shall be made, in which whatever is relevant for the decision shall be noted.

The result of the inspection shall be recorded and it will be freely appreciated by the judge.

SECTION VII ORAL EVIDENCE SUB- SECTION I ADMISSIBILITY AND VALUE OF ORAL EVIDENCE- WHO MAY BE A WITNESS

Article 620 – Admissibility - oral evidence is admissible in all the cases unless expressly

prohibited. See Article 2506 of the Civil Code. Article 621 – Limits of oral evidence - Oral evidence in contradiction to or beyond the contents of authentic documents is inadmissible in so far as such documents have full evidentary force, except where there is an allegation of falsity, and is contrary to the documentary evidence or beyond the contents of the authentic documents and private documents deemed as true in terms of Article 542, except where there is an allegation of falsity, mistake, fraud, coercion or misrepresentation. See Articles 2507 and 2508 of the Civil Code.

Article 622 – Who may be a witness - Persons of either sex, not disqualified by natural

incapacity or by law, may depose as witnesses. Article 623 - Who may not be witnesses - The following persons are disqualified by natural incapacity: 1. Those interdicted on account of dementia; 2. Those blind and deaf, in the matter the cognizance of which depends on those senses; 3. Minors of 14 years and below. See Article 2570 of the Civil Code

Article 624 – Legal incapacity - The following persons are disqualified by law: 1. Those who can depose as parties; 2. The ascendants in the matters of descendants, and vice versa; 3. The father-in-law or mother-in-law in the matter of the son-in-law or daughter-in-law, and vice versa; 4. The husband in the matter of wife, and vice a versa; 5. The persons who, due to their status or profession, are obliged to maintain professional secrecy; 6. The persons specially debarred from deposing as witnesses on certain facts. § Sole paragraph: The provisions of clauses (2), (3) and (4) are not applicable to matters in which the verification of birth or death of the children is dealt. See Article 2511 of the Civil Code. Article 625 – Probative value - The probatory force of the deposition of the witnesses shall be freely appreciated. See Article 2514 of the Civil Code. SUB-SECTION II PRODUCTION OF ORAL EVIDENCE Article 626 – List of witnesses - The list of witnesses may not be altered upon the expiry of the period of limitation, prescribed for its presentation save for what is provided in article 634. A party may however desist from the examination of witnesses that have been offered. The witnesses shall be specified by their names, professions and addresses and any other particulars which are necessary to establish their identity. Article 627 – Mentioning the judge as witness - If any of the parties indicate the judge in the suit as witness, such judge shall declare on oath in the matter, if he has knowledge of facts which can affect the decision. In the affirmative, he shall cease to be a judge in the suit; in the negative, the indication shall be of no effect. § Sole paragraph: There being offered as witness any of the associate judges, the declaration that

is referred to in this article shall be made at the hearing in which the suit is continued in view of adjudication by the judge in the suit calling the attention of the other judge to the fact. If the judge is disqualified from functioning, such associate judge shall pass the matter to the judge who shall substitute the judge so disqualified. Although the judge in the suit, in view of the simplicity of the case, decides that the examination of the matter is not necessary, an order shall always be passed to the effect indicated in this paragraph when the case foreseen in it arises. See also Article 122(7) of this Code. Article 628 – Place of recording evidence - The witnesses shall depose before the court at the hearing of the trial, except in the following cases: a) The witnesses that have to be examined in advance, in terms of article 525; b) The witnesses to be examined by letter; c) The witnesses, that are in terms of article 631, to be examined at their residence; d) The witnesses that are unable to appear in the court. See also Article 653 (d) of this Code. Article 629 – Examination at the site - The witnesses shall be examined at the place of dispute when the court, suo moto or on the application of any of the parties, decides it to be appropriate. Article 630 – Examination by letter - When the witnesses reside outside the judicial division, the party may apply for dispatch of a letter of request for the examination indicating the questions from the questionnaire on which the witness is to depose. If letter is not sought in the list of witnesses, it shall be understood that the party has undertaken to produce his witnesses at the hearing of arguments and trial. The judge shall refuse the letter if he has reason to believe that the respective witness can come to depose before the collective court. In this case, the party may apply for the witness to be notified by letter to appear, undertaking to pay the expenses that the witness has to make with the travel. Article 631 – Persons to be examined at their residence - The following persons enjoy the prerogative of being examined at their residence; 1. The President of the Republic; 2. The State Councilors, the Presidents of the National Assembly and the Corporate chambers and

the members of the Government; 3. The archbishops and bishops; 4. The diplomatic agents of foreign nations who have granted identical privileges to the representatives of Portugal; 5. The Attorney-General of the Republic, the judges of the Supreme Court of Justice and of the High Courts and the President of Bar Council of the Advocates. § 1: When the President of the Republic is offered as a witness, the party shall immediately indicate the facts in respect of which the deposition is intended to be obtained. The judge shall make respective communication to the Ministry of Justice that shall be transmitted, through the Presidency of the Council, to the President of the Republic. If the President of the Republic declares that he does not have knowledge of the facts in respect of which application is made for his deposition, the same shall not take place; if he declares that he is ready to depose, the judge shall solicit from the office of the President of the Republic, the indication of the day and time on which the deposition must be carried out which shall be attended by the Attorney General of the Republic with a secretary, so designated. The interrogation shall be made by the judge in the suit. The parties may attend the examination with their advocates but they can neither formulate questions nor insistent requests, the judge having the power to direct, any clarification or amendment when considered necessary. The deposition shall be drafted by the judge, if the deponent does not desire to draft and written

by the secretary designated by the Attorney General of the Republic.

§ 2: When any of the persons mentioned in clauses (2), (3), (4), and (5), are offered as witnesses, the day and time for examination shall be fixed as is indicated by such persons. The witness shall be notified, observing the common provisions relating to the examination, except in respect of representatives of foreign powers if there is a treaty or convention that stipulates special formalities. § 3: If the judge is of the opinion that the deposition of the persons mentioned in clauses (2), (3), (4), and (5) shall take place before the collective court, it shall so decide; but the deposition will no longer be recorded at the residence of the witness on the day and at the time fixed in agreement with the witness. If the witness has deposed before the judge in the suit and the collective court adjudges as necessary to hear the witness, he shall be examined before the collective court afresh in terms of

the first part of this paragraph. Article 632 – Examination of persons disabled by illness - The judge may verify, through a physician appointed by him, if the witness is really unable to appear before the court and, in the case in affirmative, if he can depose. He being, unable to appear, the deposition shall take place where the deponent is found, it being possible, on the day and at the time fixed by the judge, upon hearing the physician in attendance, if necessary. Only the judge in the suit or the collective court shall remain present for the deposition, as determined.

examined. The witnesses that the parties agree to bring shall not be notified. Article 634 – Consequences of absence - In the case of absence of any witness that the party does not dispense with, the following shall be observed: 1. If the witness has expired after the list being filed, the party has a right to replace the witness; 2. If the witness is sick and his immediate examination is not possible, the party can substitute him or apply for postponement of the examination by a period that appear indispensable, which is no case shall exceed 30 days; 3. If the witness has changed his residence after being offered as a witness, the party can substitute him, or apply for examination by letter, provided that it is not outside the continent or the island where the cause accrued, or undertake to present the witness on the day that is fixed afresh; 4. If the witness has not been notified, or if he fails to appear due to any other legitimate impediment, the examination shall be postponed, but if it is not possible to examine him within a period of 30 days, the party can substitute such witness; 5. If he remains absent without a just reason, he shall depose under arrest; where he is not found, he can be substituted. § 1: The examination cannot be postponed due to the absence of witnesses if the party has undertaken voluntarily to produce the same, and there shall not be a second postponement of examination totally due to absence of the same or other witnesses.

§ 2: When the depositions are to be written, only the examination of the witnesses who remain absent shall be postponed; in other case, the postponement shall be total or partial depending upon the circumstances. § 3: The witnesses, which the party has agreed to produce, cannot be substituted, neither can witnesses that have to be examined by letter of request, be offered in substitution. § 4: The substitution shall be applied for as soon as the party has knowledge of the fact which causes it. The new witness shall not depose before the lapse of 3 days from the date when the opposite party had judicial knowledge of the substitution, save if the witness is withdrawn during this period. If it is not possible to postpone the examination by a necessary period of 3 days, to which the opposite party may apply, the substitution shall be without any effect. § 5: The justification for absence shall be done in the very act. This not being possible, it shall be done within a period of 5 days.

Article 635 – Maximum number of witnesses which parties can examine - The plaintiff

cannot offer more than 20 witnesses; equal limitation is applicable to the defendants who filed same written statement. The names of the witnesses in the list that exceed the number indicated above shall be considered not to have been written.

Article 636 – Number of witnesses as to each fact - On each of the facts specified in the

questionnaire, not more than 5 witnesses may be examined, not including those who have declared they know nothing. Article 637 – Facts over which oral evidence is not admissible - The examination of witnesses is not admissible: a) In respect of facts that are proved by documents or which can be proved only by documents;

b) In respect of facts proved by agreement or admission of the parties.

Article 638 – Order of depositions - Before the commencement of the examination, the witnesses shall be gathered in a hall from where they shall leave to depose in the order in which they are mentioned in the list, first the witnesses of the plaintiff and thereafter those of the defendant, save if the judge decides that the order be altered or if the parties agree to the

alteration. But if any of the functionary of the office appears as witness, he shall be the first to depose, although he has been offered by the defendant. § Sole paragraph: While the witnesses are gathered, they shall be watched so that they do not communicate over the facts which are to be subject matter of the dispute. Article 639 – Oath and preliminary interrogation - The judge, after observing what is provided in the article 57 6, shall proceed to identify the witness and shall question him if he is a relative, friend or enemy of any of the parties, if he has a relation of dependence with any of the parties and if he has interest, direct or indirect, in the suit. When it is confirmed by answers that the declarant is not fit to be a witness or is not the person who was offered as witness, he shall not be admitted to depose. Article 640 – Objections to the admissibility of a witness - The party against whom the witness is produced can object his admission on the same ground on which the judge shall object to the deposition. The objection shall be presented when the preliminary interrogation terminates. If admitted, the witness shall be questioned on the matter of fact and, if he does not admit, the opposite party shall prove the same by persons who are witnesses to this act, not being more than 3 witnesses for a fact. The judge shall forthwith decide whether the witness should depose. § Sole paragraph: If the party has declared that he has not waived the appeal from the decision passed in respect of the objection, he shall mention the grounds for the appeal, the answers of the witness and the depositions of the witnesses who have been examined in respect of the incident. Article 641 – Mode of deposition - The witness shall be questioned as regards the facts indicated in the questionnaire which have been pleaded by the party who offers the witness, and the deposition shall be precise, indicating the reason for and any circumstances that can justify knowledge of the facts. If the witness deposes before the collective court, the questioning shall be done by the advocate of the party which has offered the witness and the advocate of the other party shall be able to interrogate in relation to the facts which have been deposed, the instances that are absolutely indispensable for the witness to complete or clarify the deposition. The President of the court shall object those advocates who treat the witness unceremoniously

and put questions and observations, that are irrelevant and suggestive, deceitful or vexatious; the president as well as the associate judges may always put questions that are convenient for bringing out the truth. The interrogation and the insistence, instead of being made by the advocates, shall be made by the presiding Judge of the 'court when he considers it more appropriate. § 1: If the deposition does not take place before the collective court, the interrogation shall be done by judge, and the advocates may apply for the answers to be clarified or completed. § 2: The reason for knowing cited by the witness shall be specified, as far as possible. If the witness says that he knows by seeing, he has to explain at what time and place he saw the fact, if there were other persons who also saw and what it was; if he say that he knows by hearing, he has to indicate who heard, at what time and place, and if there were other persons there who also heard, and who they were. § 3: The witness may, before answering, refer the file or demand that he is shown certain documents that exist therein; he can also present any object or document to corroborate his deposition. Only those objects and documents shall be received and brought on record which the respective party could not have produced.

Article 642 – Applicability of provisions relating to deposition by party - The provisions

contained in paragraph 1 of article 577 and in article 579 are applicable to the deposition of the witnesses.

Article 643 – Refutation - The party against whom the witness is produced may refute the

statement of the witness, alleging any circumstance which may affect the source of knowledge alleged by the witness or the faith which he deserves. The refutation shall be put forth when the deposition terminates. If the refutation is to be considered, the witness shall be heard in respect of the matter of fact in the refutation. When this matter of fact is not admitted, the party may prove it by documents or witnesses, not being more than 3 witnesses for each fact. § 1: The witnesses have to be presented and examined immediately.

The documents may be offered until the stage at which decision must be passed in respect of the facts. § 2: What is provided in the sole paragraph of article 640 is applicable not only when the party has not waived the appeal, but also when the deposition of the refuted witness has to be written. Article 644 – Confrontation of witnesses - If there is direct opposition, in respect of certain fact between depositions of the witnesses or between them on one hand and the deposition of the party on the other, the confrontation of the persons who are in contradiction may take place suo moto or on application of any of the parties. § 1: If the persons to be confronted are present, the confrontation shall be done immediately; if they are not, a day shall be fixed for the step that shall be before the commencement of the argument in the suit, when the witnesses have not deposed before the collective court. § 2: If the witnesses to confront have deposed by precatory letter in the same judicial division, the receiving court is bound to order or authorize the confrontation. If the contradiction between

deposition produced in different judicial divisions is confirmed, the collective court may, if it

decides as absolutely indispensable, order the persons to be confronted to appear before it, dispatching letters for notification of the person who reside outside the judicial division when the respective party does not take charge of presenting them. § 3: When the confrontation does not take place before the collective court, it shall be recorded in writing. Article 645 – Travel expenses and compensation - The witness who has been notified has right to the expenses of dislocation and to a compensation, fixed by the judge, for each day on which he has appeared, whether he is residing outside the seat of the court or not ant whether or not he has rendered the deposition. § 1: The amount shall be immediately paid by the party that has offered the witness, thereafter entering it in the rule of costs; if the witness does not wish to receive the amount, it shall be deposited to the account of the court. § 2: If the witness has been offered by an entity exempted from payment of anticipated expenses and costs, the amount shall be determined for entering in the rule of costs. Article 646 – Summoning by the Court - If it is found, by examination, that certain person not

offered as a witness has knowledge of a fact important for the decision of the suit; the court may order that such person be notified to depose. The deposition shall not take place before 3 days, save if the opposite party waives this period.