The Macau Commercial Code: An English Unofficial Translation
285 Pages Posted: 31 Jan 2010 Last revised: 12 Sep 2013
Date Written: September 12, 2013
This English translation of the Commercial Code of Macau was originally undertaken upon the initiative of the Government of the Special Administrative Region of Macau, and is the first of a major Code in the Macau SAR. It was subsequently revised and updated, especially in light of the amendments introduced by Law no. 16/2009, of August 10.
The translation has been made on the basis of the Portuguese version of the Commercial Code. Although this is not an ideal situation, given that the legal system of Macau is bilingual Chinese and Portuguese, there can be confidence in its accuracy as the Code was mostly prepared by Portuguese-speaking jurists. The Code itself is, of course, a product of the Portuguese strand of the civil law, continental or Roman-German family of legal systems. Given that the source is a legal text and the rendering therefore needs to be as literal as possible, the translated text retains the typical drafting style of civil law legal systems: very condensed sentences employing highly abstract concepts. Notwithstanding, an effort has been made to use direct, clear and contemporary language.
Translation in the field of commercial law, while somewhat eased by the internationalization of business matters, still inevitably faces the difficulties associated with bridging the gap between civil law and common law in a manner that will produce a text that can be understood by jurists from both traditions, not to speak of non-jurists. A variety of strategies were adopted for this purpose. In some cases, it was felt necessary to quote the original concept in square brackets in order to avoid possible misunderstandings. Where the difference between concepts is commonly recognized a translation has been made, but the reader should keep in mind that similar words can encompass substantial differences (namely, equidade is not equivalent to equity). Difficulties arise also with concepts which are frequently employed but not easily translated; património sometimes has been translated literally as patrimony, but at other times is best rendered as assets and liabilities, depending on whether the context is directly financial or not; the concept of celebração has been rendered as conclusion (e.g., of a contract). Other difficulties arise from the use traditionally made in Roman-German legal systems of very abstract concepts, which then are divided and subdivided; for example, a share is a kind of company part (parte social) and a contract is a type of legal transaction (negócio jurídico).
The various types of companies have been rendered as follows: sociedade por quotas as private company; sociedade anónima as public company; sociedade em nome colectivo as general partnership; and sociedade em comandita as limited partnership. The distinction in Portuguese terminology between acções of public companies and quotas of private companies has not been carried into the English version, which speaks simply of shares. In the context of negotiable instruments, bearer and holder are synonymous.
The translation has drawn on the sources of its provisions, namely the Italian Civil Code of 1942 and the Civil Code of Québec. Of particular use was an English translation of the Italian Civil Code by Mario Beltramo, Giovanni E. Longo and John Henry Merryman (Oceana, Dobbs Ferry, NY, 1969). The lodging contract (articles 798 to 819) draws on a translation made by Dr. Nuno Lima Bastos for the use of the students of the Institute of Tourism Studies of Macau. The provisions on bills of exchange, promissory notes and cheques draw, with many amendments, on the widely available English versions of the respective Uniform Laws, which the Commercial Code incorporates.
Given the importance of the English language for business, it is hoped that this translation will contribute to the economic development of Macau, as well as the diffusion of its legal system. The Government of the Macau SAR, in the person of the Secretary for Economy and Finance, Mr. Tam Pak Yuen, is to be congratulated for this timely initiative.
This translation benefitted substantially from my experience of teaching the concepts and mechanisms of Macau’s legal system, in English, to the students of the University of Macau, where I was a part-time lecturer from 1993 to 2000, and to where I returned as a full-time assistant professor in 2004. Additionally, three persons were of key importance for its completion. Gonçalo Cabral has read the whole text and suggested countless amendments. Jesse Scott has combed the entire text various times so as to make sure that it does not cause too many perplexities to the English-speaking reader. Maria Cheng provided very efficient proofreading.
Interested readers may wish to know that in 2007 my book Macau Business Law and Legal System came out on LexisNexis Hong Kong, where much commentary can be found. In 2010 an edited volume entitled Studies on Macau civil, commercial, constitutional and criminal law was published, also by LexisNexis Hong Kong, which also covers a range of issues regulated in the Commercial Code.
Needless to say, only the Chinese and Portuguese versions are official. While the utmost care has been invested in the translation, neither the author of the translation nor the Government of Macau accept liability for any reliance upon it; legal advice should be sought where appropriate. All comments, questions or issues regarding this translation are gladly welcome.
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