Papers by Diogo Tapada dos Santos
Cambridge Law Review, 2019
The interplays between autonomy and many areas of law are somehow evident but many times redundan... more The interplays between autonomy and many areas of law are somehow evident but many times redundant and unclear. In this paper, I offer an account of personal autonomy that can be useful in reading private law phenomena, especially focusing on the doctrine of contract as promise. This doctrine, which assimilates contracts and promises, poses two challenges to the ideal of personal autonomy: first, how can autonomy justify or require the ability to be bound by promise or contract; second, how can the possibility to change one’s mind, which is a virtue of the autonomous life, be reconciled with the bond created by contracts. By defending that personal autonomy is an ideal of self-authorship, and that the autonomous person authors her own life, being emotionally and intellectually capable of committing to a sufficient variety of long- and short-term choices, which she will consider without uncalled external interferences nor impositions and with respect for a condition of integrity, I will address both concerns, aiming at proving that a thick ideal of autonomy is capable of justifying the practice of contracting and is not in opposition with the strong bond created by contracts. The debate will primarily focus on promises, and thereafter its arguments are applied to contracts’ analysis.
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Revista da Faculdade de Direito da Universidade de Lisboa, 2023
Resumo: O nosso ordenamento proíbe a convenção pela qual o credor fará sua uma coisa dada em gara... more Resumo: O nosso ordenamento proíbe a convenção pela qual o credor fará sua uma coisa dada em garantia, caso o devedor não cumpra a dívida garantida. A proibição é expressamente consagrada para a hipoteca, e aplicável, por operação de várias remissões legais, ao penhor, à consignação de rendimentos, e aos privilégios creditórios. A doutrina tem procurado estender a proibição a outras garantias (típicas e atípicas), mediante argumentos que partem da análise da ratio da proibição, mas sem que se encontre o correspondente fundamento metodológico. Neste estudo procuraremos perceber qual o regime da proibição e o percurso metodológico da dita extensão funcional ou teleológica da proibição, confrontando essa extensão com a inviabilidade da analogia de normas excepcionais. Concluiremos que a proibição é uma norma excepcional, e que a proposta extensão analógica, produzindo os mesmos efeitos que a analogia, é vedada pelo art. 11.º do Código Civil.
Abstract: Our legal system prohibits an agreement by which the creditor may make his own a thing given to him as security, in case the debtor does not comply with the guaranteed debt. The prohibition is expressly established for mortgages, and applies, by operation of various legal remissions, to pledges, consignment of earnings, and privileged claims. Legal scholarship has sought to extend the prohibition to other (typical and atypical) guarantees, by means of arguments based on the analysis of the ratio of the prohibition, but lacking a corresponding methodological basis. In this study we will try to understand the prohibition's regime and the methodological path of the so-called functional or teleological extension of the prohibition, confronting this extension with the inadmissibility of analogy of exceptional rules. We shall conclude that the prohibition is an exceptional norm, and that the proposed analogical extension, producing the same effects as analogy, is forbidden by art. 11 of the Civil Code.
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Revista de Direito da Responsabilidade, 2022
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Revista da Faculdade de Direito da Universidade de Lisboa, 2020
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Papers by Diogo Tapada dos Santos
Abstract: Our legal system prohibits an agreement by which the creditor may make his own a thing given to him as security, in case the debtor does not comply with the guaranteed debt. The prohibition is expressly established for mortgages, and applies, by operation of various legal remissions, to pledges, consignment of earnings, and privileged claims. Legal scholarship has sought to extend the prohibition to other (typical and atypical) guarantees, by means of arguments based on the analysis of the ratio of the prohibition, but lacking a corresponding methodological basis. In this study we will try to understand the prohibition's regime and the methodological path of the so-called functional or teleological extension of the prohibition, confronting this extension with the inadmissibility of analogy of exceptional rules. We shall conclude that the prohibition is an exceptional norm, and that the proposed analogical extension, producing the same effects as analogy, is forbidden by art. 11 of the Civil Code.
Abstract: Our legal system prohibits an agreement by which the creditor may make his own a thing given to him as security, in case the debtor does not comply with the guaranteed debt. The prohibition is expressly established for mortgages, and applies, by operation of various legal remissions, to pledges, consignment of earnings, and privileged claims. Legal scholarship has sought to extend the prohibition to other (typical and atypical) guarantees, by means of arguments based on the analysis of the ratio of the prohibition, but lacking a corresponding methodological basis. In this study we will try to understand the prohibition's regime and the methodological path of the so-called functional or teleological extension of the prohibition, confronting this extension with the inadmissibility of analogy of exceptional rules. We shall conclude that the prohibition is an exceptional norm, and that the proposed analogical extension, producing the same effects as analogy, is forbidden by art. 11 of the Civil Code.