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{"id":907,"date":"2024-12-04T20:02:01","date_gmt":"2024-12-04T21:02:01","guid":{"rendered":"https:\/\/advogados.cv\/?p=907"},"modified":"2025-02-15T22:13:23","modified_gmt":"2025-02-15T23:13:23","slug":"a-evolucao-e-aplicacao-do-direito-civil-em-cabo-verde","status":"publish","type":"post","link":"https:\/\/advogados.cv\/en\/the-evolution-and-application-of-civil-law-in-cape-verde\/","title":{"rendered":"Civil Law in Cape Verde: Evolution and Application"},"content":{"rendered":"

O Civil law<\/a>[17]<\/a><\/sup><\/span> in Cape Verde is the backbone of the legal system<\/a>[7]<\/a><\/sup><\/span> of the country, regulating private relations between citizens and organisations. This branch of law<\/a>[23]<\/a><\/sup><\/span> covers a wide range of areas, including contracts, obligations, property, family and inheritance, and is fundamental to maintaining social and economic order. Its evolution reflects Cape Verde's history and social transformations, adapting to contemporary needs and global challenges.<\/p>\n\n\n\n

Since independence in 1975, Cape Verde has been working to develop a system<\/a>[24]<\/a><\/sup><\/span> The Cape Verdean Civil Code, which came into force in 1999, is the centrepiece of this robust and efficient legal system, largely inspired by the Portuguese legal system due to its colonial heritage. The Cape Verdean Civil Code, which came into force in 1999, is a centrepiece of this system, incorporating modern principles and adapting traditional norms to local realities. This code is essential for understanding legal relations in the country and is frequently studied and analysed by jurists and academics.<\/p>\n\n\n\n

The application of civil law in Cape Verde faces unique challenges, including the need to harmonise local traditions with formal legal norms. In addition globalisation<\/a>[18]<\/a><\/sup><\/span> and the growing interaction with international legal systems require constant updating and adaptation of civil laws. Institutions such as the Court<\/a>[25]<\/a><\/sup><\/span> Cape Verde's Constitution<\/a> play a crucial role in the interpretation and application of civil norms, ensuring that the rights of citizens are protected and that the justice<\/a>[26]<\/a><\/sup><\/span> is effectively managed.<\/p>\n\n\n\n

This report aims to explore in detail the fundamental aspects of civil law in Cape Verde, analysing its origins, evolution, and the impact of recent legislative reforms. It will also examine how the Cape Verdean legal system responds to contemporary challenges, ensuring the protection of civil rights and promoting the country's sustainable development.<\/p>\n\n\n\n

Fundamentals of Civil Law in Cape Verde<\/h2>\n\n\n\n

Structure and Sources of Law<\/a>[9]<\/a><\/sup><\/span> Civil<\/h3>\n\n\n\n

Civil law in Cape Verde is mainly structured around the Civil Code, which is the main source of legislation. This code was adapted from the Portuguese Civil Code of 1966, with modifications to cater for the specificities of the Cape Verdean context. In addition to the Civil Code, other important sources include the Constitution<\/a>[19]<\/a><\/sup><\/span> of the Republic of Cape Verde, complementary laws, decrees and regulations<\/a>[20]<\/a><\/sup><\/span>as well as the jurisprudence<\/a>[10]<\/a><\/sup><\/span> and the general principles of law.<\/p>\n\n\n\n

The Constitution of Cape Verde, promulgated in 1992 and revised in 1999, establishes the fundamental rights<\/a>[1]<\/a><\/sup><\/span> and freedoms of citizens, serving as a basis for the interpretation and application of civil rules. The Civil Code, in turn, covers a wide range of subjects, including the rights of obligations, contracts, family, inheritance and property (Government of Cape Verde<\/a>).<\/p>\n\n\n\n

<\/object>capeverde_civilcode_1997_pr<\/a>Download<\/a><\/div>\n\n\n\n

General Principles of Law<\/a>[2]<\/a><\/sup><\/span> Civil<\/h3>\n\n\n\n

The general principles of civil law in Cape Verde play a crucial role in the interpretation and application of legal rules. Among the fundamental principles are the principle of good faith, the principle of equality<\/a>[3]<\/a><\/sup><\/span>The principle of autonomy of will and the principle of protection of trust.<\/p>\n\n\n\n

    \n
  1. Principle of Good Faith<\/strong>This principle guides the behaviour of the parties in legal relationships, requiring them to act honestly and loyally. Good faith is especially relevant in contracts, where the parties must act in such a way as not to frustrate each other's legitimate expectations.<\/li>\n\n\n\n
  2. Principle of Equality<\/strong>It establishes that all people are equal before the law. law<\/a>[27]<\/a><\/sup><\/span>without discrimination of any kind. This principle is fundamental to guaranteeing justice and fairness in civil relations.<\/li>\n\n\n\n
  3. Principle of Autonomy of Will<\/strong>It refers to the freedom of the parties to stipulate contracts and agreements, as long as they do not contravene public order, the law or the law of the land. moral<\/a>[28]<\/a><\/sup><\/span> and the good customs<\/a>[29]<\/a><\/sup><\/span>. This principle is limited by mandatory rules that protect social and collective interests.<\/li>\n\n\n\n
  4. Principle of Protection of Confidence<\/strong>This principle aims to protect legitimate expectations created by a party's acts or statements, promoting legal certainty in civil relations.<\/li>\n<\/ol>\n\n\n\n

    Law of Obligations<\/a>[4]<\/a><\/sup><\/span><\/h3>\n\n\n\n

    The Law of Obligations in Cape Verde is governed by rules that regulate legal relations between creditors and debtors. Obligations can arise from contracts, unlawful acts, business management, unjust enrichment, among other sources. The Cape Verde Civil Code defines obligations as legal bonds that force one party to perform a service in favour of another.<\/p>\n\n\n\n

      \n
    1. Contracts<\/strong>: Contracts are the main source of obligations and are governed by the principle of autonomy of will, allowing the parties to freely establish their clauses, as long as they respect legal limits. The fulfilment of contractual obligations is essential for the stability of commercial and personal relationships.<\/li>\n\n\n\n
    2. Civil Liability<\/strong>Civil liability can be contractual or non-contractual. Contractual liability arises from the non-fulfilment of obligations established in contract<\/a>[30]<\/a><\/sup><\/span>While non-contractual liability results from damage caused to others without a prior contract. Reparation for damage<\/a>[31]<\/a><\/sup><\/span> is one of the main objectives of civil liability.<\/li>\n<\/ol>\n\n\n\n

      Family Law<\/a>[8]<\/a><\/sup><\/span><\/h3>\n\n\n\n

      Family law in Cape Verde regulates family relations, including marriage, filiation, guardianship and adoption. The Civil Code establishes detailed rules on marriage, which can be civil or religious, and on the rights and duties of the spouses.<\/p>\n\n\n\n

        \n
      1. Marriage and partnership<\/strong>: Marriage is an institution protected by law, and de facto unions, although not formally recognised as marriage, also have legal protection in certain circumstances. The rules on marriage include provisions on property regime, conjugal rights and duties, and dissolution of marriage.<\/li>\n\n\n\n
      2. Affiliation<\/strong>: Filiation, which can be biological or adoptive, establishes rights and duties between parents and children. The law protects the right to identity and family life, and adoption is regulated to ensure the best interests of the child.<\/li>\n<\/ol>\n\n\n\n

        Inheritance Law<\/a>[5]<\/a><\/sup><\/span><\/h3>\n\n\n\n

        Succession law in Cape Verde deals with the transfer of assets and rights after the death of a person. death<\/a>[32]<\/a><\/sup><\/span> of a person. The Civil Code regulates legitimate and testamentary succession, establishing the order of hereditary vocation and the rights of heirs.<\/p>\n\n\n\n

          \n
        1. Legitimate succession<\/strong>In the absence of a will, succession is governed by the rules of legitimate succession, which determine the order of heirs, starting with descendants, ascendants, spouse and collateral.<\/li>\n\n\n\n
        2. Testament<\/strong>: A will is an instrument that allows the testator to dispose of their property after their death, respecting the rights of the necessary heirs. The validity of a will depends on the fulfilment of legal formalities, such as the testator's capacity and the written form.<\/li>\n<\/ol>\n\n\n\n

          Rights in rem<\/h3>\n\n\n\n

          Rights in rem in Cape Verde are regulated by the Civil Code and include property rights, usufruct, easements, among others. The right to property is the most comprehensive of the rights in rem, giving the holder the power to use, enjoy and dispose of the property.<\/p>\n\n\n\n

            \n
          1. Property<\/strong>Property can be acquired through contract, usucaption, inheritance, among other ways. The protection of property is guaranteed by the Constitution, which also provides for the possibility of expropriation for public necessity, subject to fair compensation.<\/li>\n\n\n\n
          2. Usufruct and Servitudes<\/strong>Usufruct is a right in rem that allows the usufructuary to use and enjoy the property of another, while easements are charges imposed on a property for the benefit of another, facilitating the use and exploitation of properties.<\/li>\n<\/ol>\n\n\n\n

            These foundations of civil law in Cape Verde reflect the complexity and comprehensiveness of the legal system, which seeks to balance individual and collective interests, promoting justice and legal certainty.<\/p>\n\n\n\n

            Main Legal Institutions and Rules<\/h2>\n\n\n\n

            Structure of the Judicial System<\/h3>\n\n\n\n

            Cape Verde's judicial system is made up of various institutions that guarantee the application and interpretation of legal rules in the country. The Constitution of the Republic of Cape Verde establishes the Supreme Court as the highest judicial body, responsible for ensuring uniform jurisprudence. In addition to the Supreme Court, there are the Courts of Appeal, which function as appellate courts, and the District Courts, which are courts of first instance. Each of these courts plays a crucial role in administration<\/a>[11]<\/a><\/sup><\/span> of justice and the protection of citizens' civil rights.<\/p>\n\n\n\n

            Civil Code of Cape Verde<\/h3>\n\n\n\n

            The Civil Code of Cape Verde is the main legal norm<\/a>[12]<\/a><\/sup><\/span> which regulates civil relations in the country. This code covers a wide range of areas, including the law of obligations, family law, rights in rem and inheritance law. The Civil Code is based on fundamental principles, such as the autonomy of will and the protection of trust, which guarantee freedom of contract and legal certainty in civil relations. The code is periodically updated to reflect social and economic changes, ensuring that legal norms remain relevant and effective (website url<\/a>).<\/p>\n\n\n\n

            Ministry of Justice<\/h3>\n\n\n\n

            Cape Verde's Ministry of Justice plays a central role in formulating and implementing legal policies and supervising judicial institutions. This ministry is responsible for administering the prison system, training magistrates and promoting legal reforms aimed at improving the efficiency and accessibility of the judicial system. In addition, the Ministry of Justice collaborates with other government entities and international organisations to promote the rule of law<\/a>[13]<\/a><\/sup><\/span> e proteger os human rights<\/a>[14]<\/a><\/sup><\/span> no país (website url<\/a>).<\/p>\n\n\n\n

            Cape Verde Bar Association<\/h3>\n\n\n\n

            The Cape Verde Bar Association is a fundamental institution in the promotion of justice and the defence of citizens' rights. This professional organisation regulates the practice of advocacy<\/a>[21]<\/a><\/sup><\/span> in the country, ensuring that lawyers fulfil high ethical and professional standards. The Bar Association also provides continuous training for its members and actively participates in the debate on legal reforms and public policies, contributing to the strengthening of the Cape Verdean legal system (website url<\/a>).<\/p>\n\n\n\n

            Standards of International Law<\/a>[6]<\/a><\/sup><\/span><\/h3>\n\n\n\n

            Cape Verde is a signatory to several international treaties and conventions that influence its legal system, especially in the areas of human rights and international trade. The incorporation of these international standards into the national legal system is essential to ensure that the country fulfils its international obligations and promotes a stable and predictable legal environment for investors and citizens. The implementation of these standards is overseen by various institutions, including the Ministry of Foreign Affairs and the Ministry of Justice, which work together to ensure that national laws are aligned with international standards (website url<\/a>).<\/p>\n\n\n\n

            Challenges and Perspectives for Cape Verdean Civil Law<\/h2>\n\n\n\n

            Modernising and Updating Legislation<\/h3>\n\n\n\n

            Modernising civil law in Cape Verde is an ongoing challenge, given that the current Civil Code, although adapted from the 1966 Portuguese Civil Code, needs updating to reflect contemporary social and economic changes. The periodic revision of civil rules is essential to ensure that the legal system remains relevant and effective (Government of Cape Verde<\/a>). The introduction of new technologies and the increase in digital transactions require civil law to adapt in order to adequately regulate issues such as electronic contracts and the protection of personal data.<\/p>\n\n\n\n

            Access to Justice and Efficiency of the Judicial System<\/h3>\n\n\n\n

            Access to justice is one of the main challenges facing the Cape Verdean legal system. The efficiency of the courts is often jeopardised by issues such as case overload and a lack of material and human resources. Improving the judicial infrastructure and promoting the continuous training of magistrates are necessary measures to increase the efficiency of the system. In addition, the implementation of alternative methods of conflict resolution, such as mediation and arbitration, can ease the burden on the courts and offer faster and more accessible solutions for citizens (Ministry of Justice<\/a>).<\/p>\n\n\n\n

            Human Rights Protection and the Integration of International Norms<\/h3>\n\n\n\n

            The protection of human rights is a fundamental pillar of civil law in Cape Verde. The country is a signatory to several international treaties that influence its legal system, especially in the area of human rights. Integrating these norms into domestic law is crucial to guaranteeing the fulfilment of international obligations and promoting a stable and predictable legal environment (Ministry of Foreign Affairs<\/a>). The effective application of these standards requires coordination between different government institutions and sensitisation of the population about their rights.<\/p>\n\n\n\n

            Challenges in Regulating Family Law<\/h3>\n\n\n\n

            Family law in Cape Verde faces specific challenges, such as adapting to new forms of family life and protecting the rights of children and adolescents. Although the Civil Code establishes detailed rules on marriage and filiation, the ever-changing social reality demands a more flexible and inclusive approach. The protection of de facto unions and the recognition of new family configurations are areas that need legislative attention in order to guarantee equality and justice in family relations (Family Law<\/a>).<\/p>\n\n\n\n

            Sustainable Development and Property Rights<\/h3>\n\n\n\n

            Sustainable management of natural resources and environmental protection are emerging challenges in the context of property rights in Cape Verde. The right to property, although guaranteed by the Constitution, must be balanced with the need to preserve the environment and promote sustainable development. Legislation on expropriation and land use must be reviewed to ensure that economic activities do not jeopardise natural resources and the well-being of future generations (Rights in rem<\/a>).<\/p>\n\n\n\n

            Technological Innovation and the Law of Obligations<\/h3>\n\n\n\n

            Technological innovation is transforming the way obligations are established and fulfilled in Cape Verde. The increase in online transactions and the use of smart contracts require an adaptation of the Law of Obligations to guarantee legal certainty and consumer protection. Legislation must evolve to adequately regulate the new forms of contracts and ensure that the parties involved have their rights protected in a digital environment (Law of Obligations<\/a>).<\/p>\n\n\n\n

            Legal Education and Professional Training<\/h3>\n\n\n\n

            The training of legal professionals is crucial to the development of Cape Verde's legal system. Legal education must be updated to include new areas of knowledge, such as digital law<\/a>[15]<\/a><\/sup><\/span> and human rights, preparing future lawyers for contemporary challenges. The Cape Verde Bar Association plays a vital role in promoting continuing education and ensuring high ethical and professional standards among its members (Cape Verde Bar Association<\/a>).<\/p>\n\n\n\n

            Citizen Participation and Transparency<\/h3>\n\n\n\n

            Citizen participation in the drafting and implementation of legal norms is fundamental to ensuring that civil law reflects the needs and expectations of the public. society<\/a>[22]<\/a><\/sup><\/span> Cape Verde. Transparency in legislative processes and the promotion of public consultations are essential to strengthening citizens' trust in the legal system. Initiatives to increase citizen participation can include the use of digital platforms to facilitate access to information and interaction with government institutions (Government of Cape Verde<\/a>).<\/p>\n\n\n\n

            Economic Challenges Commercial Law<\/a>[16]<\/a><\/sup><\/span><\/h3>\n\n\n\n

            Cape Verde's economic development is closely linked to the effectiveness of commercial law. Commercial legislation must be adapted to attract foreign investment and promote the growth of local companies. Simplifying bureaucratic procedures and protecting investors' rights are critical areas that need attention in order to improve the country's business environment (Commercial Law<\/a>).<\/p>\n\n\n\n

            Conclusion<\/h3>\n\n\n\n

            Although Cape Verde faces significant challenges in the field of civil law, the outlook for the future is promising. Legislative modernisation, improved access to justice and the integration of international standards are essential steps towards strengthening the legal system and promoting social justice. Collaboration between government institutions, international organisations and civil society will be crucial to meeting these challenges and ensuring a fairer and more equitable future for all Cape Verdean citizens.<\/p>\n\n\n\n

            Conclusion<\/h2>\n\n\n\n

            Civil law in Cape Verde is based mainly on the Civil Code, adapted from the Portuguese Civil Code of 1966, and complemented by the Constitution of the Republic, complementary laws, decrees and case law. General principles such as good faith, equality, autonomy of will and protection of trust play a crucial role in the interpretation and application of legal rules, guaranteeing justice and security in civil relations. The Cape Verdean legal system faces significant challenges, such as the need for legislative modernisation to keep up with social and technological changes, and improving access to justice, which is compromised by overburdened courts and a lack of resources.<\/p>\n\n\n\n

            Among the main challenges and prospects is the need to update civil law to reflect new forms of family coexistence and digital transactions, as well as the protection of human rights and the integration of international standards. The modernisation of the legal system, the promotion of alternative methods of conflict resolution and legal education are essential steps to strengthen the system and promote social justice. Collaboration between government institutions, international organisations and civil society will be crucial to meeting these challenges and ensuring a fairer and more equitable future for all Cape Verdean citizens. The implementation of legal reforms and public policies, together with citizen participation and transparency, are fundamental for sustainable development and the protection of individual and collective rights in Cape Verde.<\/p>\n

            Terms definitions<\/div>
            <\/div>
            1. <\/span> ↑ <\/a><\/span> fundamental rights<\/a>. <\/span> Fundamental rights can collide in practice, even if constitutional norms are not structured hierarchically. When rights come into conflict, the principle of proportionality serves as a key mechanism for resolution, involving a careful assessment of adequacy, necessity and balanced consideration. Brazilian jurisprudence, particularly the Supreme Court, recognises the direct effect of fundamental rights on private relations, although international legal literature continues to debate the extent and scope of such application. Practical examples include tensions between freedom of the press and privacy rights, limitations in critical situations such as kidnappings, and the adjudication of complex scenarios in the contexts of employment, family and property. Academics such as Sarlet, Canotilho and Rolim have extensively investigated these dynamics, emphasising the nuanced approach needed to optimise the protection of rights while preventing disproportionate restrictions on individual freedoms. <\/span><\/div>
            2. <\/span> ↑ <\/a><\/span> General principles of law<\/a> ( General Principles of Law ) <\/span> General principles of law are fundamental normative statements that guide the understanding and application of legal systems. These principles condition legal interpretation, provide coherence and ensure justice, even when not explicitly codified. They serve as foundational elements that help develop new legal norms, fill legislative gaps and inform judicial decisions. Examples include concepts such as \"no one can benefit from their own wrongdoing\" and \"no one can be punished for their thoughts\". Although principles are crucial for legal stability and adaptability, they are not absolute and can sometimes conflict or be subject to different interpretations. Their significance lies in promoting fairness, ensuring predictability and maintaining the legitimacy of the legal system by providing flexible but structured guidelines for legal reasoning and practice. <\/span><\/div>