MORTUARY LAW | CULT OF THE DEATH | RELIGIOUS RITES | JUDEO-CHRISTIAN CULTURE | NATURAL OBLIGATION

 

 

        Supreme Court of Justice, proc. 06A4210, 19.12.2006

 

JURISDICTION: Civil

SUBJECT: Access to mausoleum

RAPPORTEUR: SebastiĂŁo PĂłvoas

RULING: The Court granted the appeal, absolving the defendant on the grounds that her duty to allow the parents of her deceased husband to access their son’s mausoleum constitutes a natural obligation, which cannot be coercively enforced.

DOMESTIC LAW:

Civil Code (Articles 71, 143, 156, 402, 2015 to 2018, 2133)

Portuguese Constitution (Article 41)

Decree-Law no. 433/82, of 27 October 1982

Decree-Law no. 411/98, of 30 December 1998 (amended by Decree-Law no. 5/2000, of 29 January 2000, and by Decree-Law no. 138/2000, of 13 July 2000)

Supreme Court Judgment proc. 070707, 10.05.1983

Supreme Court Judgment proc. 03B2523, 11.12.2003

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Cult of the death; community mores; family or group traditions; religious rites; moral or social obligation; duty of justice; mausoleum; crypt; casket; duty of conscience; social feeling; dominant social conceptions; natural law; natural obligation; abuse of law; freedom of cult; death person’s memory; mortuary law; civilisation; cultures; current social and religious conceptions; Confucian culture; Judeo-Christian culture; morality considerations; obscurantist fundamentalism; collective conscience; cultural tradition; ancestors’ cultural ceremony

COMMENTS:

  1. AA and BB, the deceased’s parents, lodged an application against CC, the deceased’s spouse, to compel her to grant them access to the casket of their son D, either by unlocking the crypt door whenever they want to or by giving them a key of said crypt; to return them the objects of worship she removed from and to put them back into the crypt”. It was established in the lower courts that the applicants were married on 30/10/61; DD was born in wedlock on 07/05/62; DD died on 07/09/92, legally married to the defendant CC; the defendant lodged an optional probate proceeding against the applicants that ended by settlement; the defendant changed the locks on the crypt of the cemetery of Benfica (Lisbon), where DD’s body rests and from where she removed some items (returned to the applicants in the meantime); the crypt where the applicants’ son was entombed is the property of the defendant; the crypt is covered with a marble plaque, thus the casket cannot be seen from the outside; the defendant’s behaviour caused much sorrow to the applicants, elderly people, as they suffered from heartache and sensitivity.

 

  1. The judgment scrutinises at first the legislation that might be relevant to the current case, namely the legislation regarding the so-called mortuary law. The primary concern is to figure out if CC, author of the appeal before the Supreme Court, shall or shall not unlock the crypt door or give the defendants (AA and BB) a copy of the key in order to grant them access to their son’s casket. The mausoleum is the property of the applicant. There is no doubt about that (if we analyse this issue from the perspective of private law, as this judgment did). However, the Supreme Court considers that this question shall not be addressed in light of the exercise of rights in rem but within a different scope. The issue ate stake is the right to “worship their son’s memory”, as claimed by the defendants. The judgment states that “the final destination of the body, after death, varies, throughout time, according to the social and religious perceptions in force, and the primary concern is to cherish the future «post mortem» or merely the worship, as a manifestation of love, nostalgia, privation, and respect. Although inhumation is the most common practice, whether in-ground burial (excavated and then covered gravesite), above-ground burial (with a thick cover of soil and rocks), or crypt burials, it is fairly certain that there are a lot of other options (cremation, immersion, abandonment, exposure on raised platforms, mummification, anthropology, and so forth). [The] public veneration of the dead, enhanced by the funerary art – often, emblematic monuments of a civilisation, such as the pyramids or the Taj Mahal – in the national pantheons – like the «PanthĂ©on français», the «Dome des Invalides» or the Portuguese National Pantheon – or in certain areas of great religious monuments – «Westminster Abbey», the Spanish El Escorial or the Portuguese Monasteries of Alcobaça and JerĂłnimos – are forms of perpetuating the memory of citizens who have excelled in arts, science, politics, and so forth. However, the private funerary represents – besides the mere family line – the worship of the memory, the moral personality, the sorrow caused by the ultimate absence of someone we cherish and love, and whom we believe we are releasing from the «law of death», from the oblivion to which the Portuguese poet CamĂ”es referred. If no one shall be deprived of the possibility of worshipping the deceased, to cope with their memory and absence, the truth is these external demonstrations of contemplation vary according to one’s personality, to the religious rites, to the community customs, and to the family and collective traditions. For this purpose, the different cultures have on their own calendars the «days of the dead»; see, for instance, the distinctive Confucian culture, where every Spring, by the time of the third moon of the year, the ancestors’ cultural ceremony takes place, in which the first soul – materialised on earth, connected to the body (not the ethereal one, which leaves the body to enter the Cosmos) keeps, through the ceremony, the family’s continuity”. Neither the Portuguese Constitution nor the Portuguese Civil Code explicitly set forth the right of worship of the dead. The Portuguese Constitution solely defines the freedom of conscience, of religion, and of worship (Article 41) and the Portuguese Civil Code establishes the general protection of the rights of personality, after the death of the respective holder (Article 71). “On the other hand, the so-called «mortuary law», which encompasses a set of legislation – Decree-laws no. 433/82, of 27 October 1982, and 411/98, of 30 December 2008, amended by Decree-laws no. 5/2000, of 29 January 2000, and 138/2000, of 13 July 2000 –, merely aims at establishing the legal framework regarding the disposal, transportation, inhumation, exhumation, transferring, and cremation of the dead and the actions related to the remains, ashes, stillbirths and body parts, as well as cemeteries’ location. Article 3 of Decree-law no. 411/98 confers legitimacy to request the practice of the former acts to, in the following order, the executor (in compliance with the testamentary clauses), the surviving spouse, the civil partner, any heir, any relative, any other person or entity, the diplomatic or consular representative of the deceased’s country of nationality (if the deceased does not have Portuguese nationality). Therefore, the surviving spouse (in the absence of a specific testamentary provision) is, firstly, responsible for the final destination of the dead body and respective funeral. The law-maker assumes that the spouse, who shared her life with the deceased as well as the good and bad moments of the family household, knows best the deceased’s personality and is in better position to keep with his wishes should there be the chance to express them”.

 

  1. Nevertheless, the Supreme Court of Justice does not find a solution for this case in the above-mentioned legislation but tries to figure it out within the scope of natural obligations. Pursuant to Article 402 of the Portuguese Civil Code, an obligation is deemed natural when it is based on a mere duty of moral or social nature that cannot be enforced by law but instead represents a duty of justice. As set forth in the judgment, it is necessary to meet the positive requirements – the obligation is based on moral or social grounds and shall observe a duty of justice – as well as the negative requirement, in other words, it cannot be enforced by law. The Supreme Court considers that “the veneration of the dead is part of the tradition of our society thoroughly grounded in the Judeo-Christian culture[.] Allowing people to memorialise their loved ones, especially, in this case, allowing the parents of a young adult who prematurely died at the age of 30 [is] undoubtedly a legal and moral duty. Depriving the mourning parents of the closest possible connection with the «place of memory», no matter the complexity of the conflict between the parties, represents a breach of this duty and a deliberate denial of the mourning in this restless retreat. However, the moral duty alone is not enough as a duty of conscience. The duty of conscience shall also be a duty of justice, otherwise its observance only translates into a mere liberality. The duty of justice shall not be confused with the mere duty of charity, with the social duty of courtesy, with the mere duty of gratitude or with the purpose of gratifying and reciprocating a service. The natural obligation only applies «when the courts consider that a morality consideration shall be met and it was not enshrined by law. The natural obligation encompasses everything but the mere civil obligation with a right of action and the sole liberality. As Professor Almeida Costa points out: «It is clear that the starting point of the examination lies in the conscience of the person who acts, and in the thought that inspires him/her». This is «the compliance or the voluntary recognition – in accordance with a moral duty and a duty of justice, not for the purpose of a liberality. However, a merely subjective scruple of conscience is not enough to justify a natural obligation. This is taking it too far. This duty of conscience shall match the social perceptions and shall be objectively approved and considered as normal. In short: the case-law, in accordance with the dominant perceptions and the specific circumstances of each situation, shall, at first, assess whether there is a moral or social duty and, later, if the observance of this moral and social duty entails a duty of justice». It is necessary to check if this duty also concerns the legal conscience. The moral and social duties shall be legally relevant but shall not be turned into legal categories. It is the «distinguo» between the simple moral and social duties and the natural obligations «quo tale», every time it does not encompass a civil obligation. [We believe] that the solution lies in assessing if the moral and social duty shall be specifically recognised so as to legitimise obligations. That is to say if a protection of the law is required, as they relate to a duty of justice, despite excluding enforcement. This characterisation changes over time and from one society to another. This requires a case-by-case evaluation based on the social sense or main social perceptions, provided that they are reasonable and exempt from any kind of obscurantist fundamentalism. Besides [we may say] that the natural obligation is not restricted to cash benefits, or measured in monetary terms, but to any kind of benefits other than those related to payment”.

 

  1. The testator’s parents, who are defendants in the appeal before the Supreme Court, had had direct access to the crypt (where they placed some objects), until its locks were changed, and had been able to worship their son. As “this kind of worship is part of the cultural tradition, [the] duty of not preventing this contact assumes a nature of duty of justice. These are the assumptions governing the natural obligation”. Besides, within natural obligations, there is no enforcement of this obligation bond, as the obligation is imperfect or legally limited. Thus, the civil obligations’ provisions regarding the enforcement of their performance do not apply (see Article 404 of the Portuguese Civil Code). “Consequently, there is full freedom of non-observance as the creditor’s right cannot be enforced”, as set forth in the judgment. The Supreme Court concludes that the impossibility of enforcing the observance of this duty of justice, pursuant to Article 402 of the Portuguese Civil Code, leads to the dismissal of the application lodged by the deceased’s parents.

 

  1. Therefore, there is a natural obligation which requires and allows the parents to venerate their deceased son, namely by visiting the place where he rests, but it cannot be enforced by law. Consequently, the deceased’s spouse shall not be compelled to allow those visits and worship.

 

  1. Nonetheless, we believe that the right of worship may fit in the general right of personality (Article 70 of the Portuguese Civil Code). The issue at stake in this case concerns the conflict between, on the one hand, the claim on the part of the deceased’s parents to worship their son and, on the other hand, the mausoleum ownership (which is property of the surviving spouse). The decision of the Lisbon Court of Appeal, dated 02/05/2006, that was appealed before the Supreme Court of Justice, stated that the holder of the concession right misuses her ownership right and, thus, breaches Article 334 of the Portuguese Civil Code, according to which the exercise of a right on the part of the holder who manifestly exceeds the limits imposed by good faith, morals, and the economic purpose of this right is illegitimate. Considering “the social and economic purpose of the defendant’s ownership right over the crypt, its exercise shall be deemed illegitimate, pursuant to Article 334, as it precludes the applicants from worshiping their son and adoring his casket”. The Supreme Court of Justice considers that this does not constitute a civil obligation but a natural one. This Court’s stance is subject to criticism. As a matter of fact, and according to Mafalda Miranda Barbosa, the issue deserves to be examined in the light of absolute rights, as “the core issue is not the enforceability, which means it is pointless to invoke the natural obligations. In fact the whole issue revolves around the exercise of the widower’s ownership right and a potential right of personality on the part of the applicants” [see MAFALDA MIRANDA BARBOSA, “ObrigaçÔes naturais: Notas a propĂłsito do AcĂłrdĂŁo do Supremo Tribunal de Justiça de 19 de Dezembro de 2006 (Proc. 06A4210)”, Boletim da Faculdade de Direito da Universidade de Coimbra, vol. II, 2013, pp. 918-919]. Therefore, the deceased’s parents, who have been denied access to the mausoleum where their son rests, could have claimed damages from the defendant on the grounds of a breach of the right of personality, provided that civil liability assumptions were met; they could also have required the adequate measures [pursuant to Article 70(2) of the Portuguese Civil Code] to prevent harm (for instance, to be given a keep of the mausoleum). Besides the (defendant’s) ownership right over the mausoleum, there is also a right of personality (that involves the parents’ right of worship). We are thus before a collision of rights (ownership right and right of personality). “Given the main facets of the issue, the parents’ right of personality – as regards the right to mourn the dead – shall prevail. This is so because, regardless of the prioritisation of the moral values related to the concerned legal interests, it becomes clear that, given the deployment of the relevant aspects regarding the case, the essential core of the parents’ right would be affected, as they have been denied access to their son’s casket; on the other hand, if they are given a key, as requested, the defendant will still continue to exercise her ownership right whose sole restriction will be to reconcile her right with the third parties’ access to the object of the right” [see MAFALDA MIRANDA BARBOSA, “ObrigaçÔes naturais
”, op. cit., pp. 922-923].

Cristina Dias (translated from the Portuguese by Ana Rita Silva)

 

  1. It is worth noting that, in this case, the Court is not afraid to use terms and expressions such as culture, cultural tradition, family or group traditions and Judeo-Christian tradition. It is also not afraid to acknowledge the importance of culture and tradition for the determination of the “social feeling” and the “dominant conceptions” that courts are supposed to rely on when deciding “whether a given moral or social obligation is imbued by a general legal principle and deserves some protection in light of its recognition by natural law”. It is by reference to our tradition and culture that the Court frames the cult of the death, by stating that it “is part of the tradition of our society with strong roots on Judeo-Christian culture”.

 

  1. Also worth noting is the explicit acknowledgement by the Court of the diversity of ways in which to understand the cult of the death, variable through time and according to the dominant social and religious conceptions. “If no one can be deprived of the possibility to honour his or her death, to live with their memory and their absence, the truth is that the external expressions of that feeling vary with each individual’s personality, with the religious rites, the community mores, the family or group traditions”. Curiously, the Court uses as an illustration of the various forms of honouring the death the Confucian culture “where every Spring, by the time of the third moon of the year, the ancestors’ cultural ceremony takes place, in which the first soul – materialised on earth, connected to the body (not the ethereal, which leaves the body to enter the Cosmos) keeps, through the ceremony, the family’s continuity”. The source of this information seems to be the article by Victor Lopes Dias, “CemitĂ©rios, jazigos e sepulturas”, referred earlier in the judgment. The Court’s openness to diversity is not unconditional, however, as it is made clear by the caveat a propos the social conceptions which are “derived from any type of obscurantist fundamentalism”. That is: when assessing on a case by case basis whether a given moral or social obligation deserves some legal protection, the courts must rely only on dominant social conceptions wich are reasonable. The Court does not give however any criteria to ascertain reasonableness in concrete cases, nor does it put forward any clues as to what should be understood as obscurantist fundamentalism.

PatrĂ­cia JerĂłnimo

 

REFERENCES IN THE LITERATURE:

BARBOSA, Mafalda Miranda, “ObrigaçÔes naturais: Notas a propĂłsito do AcĂłrdĂŁo do Supremo Tribunal de Justiça de 19 de Dezembro de 2006 (Proc. 06A4210)”, Boletim da Faculdade de Direito da Universidade de Coimbra, vol. II, 2013, pp. 903 and ff.

 

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