ANALYSIS OF ARTICLES 291 OF THE CIVIL CODE AND ARTICLES 5, N.º 4, 17 AND 122 OF THE PORTUGUESE LAND REGISTRATION CODE WITH REGARD TO THEIR SCOPE OF APPLICATION

Abstract

We have been witnessing some confusion regarding the scope of application of article 291 of the Portuguese Civil Code and articles 5, no. 4, 17 and 122 of the Portuguese Land Registration Code, particularly at jurisprudential level. This work aims to be a contribution to clarify in a perceptible and clear way the scope of application of each of the mentioned articles. Therefore, firstly, it is necessary to explain the assumptions for applying article 291 of the Civil Code, explaining the respective particularities. Secondly, we analyze article 5, no. 4 of the Land Registration Code, so that it is possible to distinguish the scope of application of this article compared to the others and in particular compared to article 291 of the Civil Code. In this sense, it is explained how different the concepts of third parties are in article 291 of the Civil Code and Article 5, no. 4 of the Land Registration Code, thus allowing the different scopes of application of each article to be visualized. The evolution of the concept of third party for registration purposes is also discussed, which went from a broad concept to a more restricted concept, within the Jurisprudence of the Supreme Court of Justice, with significant repercussions on the practical application of the law. In fact, Acordão 3/99 established a concept similar to that which would appear in the Land Registration Code, shortly afterwards. Thirdly, we analyzed article 17 of the Land Registration Code, demonstrating that its scope of application is also different from article 291 of the Civil Code, the first of which deals with registration nullities. Finally, we analyzed article 122 of the Land Registration Code, which is close to article 17 of the Land Registration Code, but which refers in particular to the rectification of the registration and not its nullity.