Where human judgment comes into focus.

Clients rely on the clarity of your judgment. Affine researches and reasons through the law to help you weigh what matters and shape the advice only you can give.

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The law behind your advice.

Start from the whole picture.

Affine researches legislation, case law and regulatory guidance and decisions, reading them together to establish the legal context for your question.

Our client's software supplier breached a contract governed by Portuguese law. The supplier is relying on a cap of twelve months' fees that our client individually negotiated. Can our client recover damages above it?

Researched the Civil Code, the standard-terms regime and case law

Código Civil, arts. 809.º and 810.º
Legislation
Advance waivers of remedies and agreements fixing compensation.
Decreto-Lei n.º 446/85, art. 18.º c)
Legislation
Limits on liability clauses in standard terms.
Supremo Tribunal de Justiça, 2002
Case law
Supports limits for slight negligence in a negotiated agreement.
Tribunal da Relação de Lisboa, 2021
Case law
Applied a liability cap in a software contract.
applies the requirement in
Código Civil, art. 762.º, n.º 2
Legislation
Good faith in performance and the exercise of rights.

Not everything applies.

Affine works through what is in force, which rules prevail and the exceptions your facts trigger, so the answer rests only on what applies.

The cap was negotiated, so the standard-terms controls do not apply to it. Its validity still needs to be assessed under the Civil Code.

Código Civil, arts. 809.º and 810.º
Legal framework
Rules on advance waivers and agreed compensation remain part of the assessment.
Decreto-Lei n.º 446/85, arts. 1.º and 18.º c)
Not applicable
These controls govern pre-formulated terms without individual negotiation. This cap was individually negotiated.
Supremo Tribunal de Justiça, 2002
Relevant reasoning
Examines a negotiated liability restriction, rather than a clause imposed through standard terms.
Tribunal da Relação de Lisboa, 2021
Comparable case
Assesses a software-contract cap against good faith and the contractual circumstances.
Código Civil, art. 762.º, n.º 2
Applies
Good faith remains part of the assessment of this cap.

Clear about uncertainty.

Affine maps what the law settles and what it leaves open, weighing competing positions and the reasoning behind them, so you can distinguish firm conclusions from open questions.

Courts have accepted negotiated limits of liability for slight negligence. Whether this cap holds is still open.

A cap can be valid for slight negligence.

Contractual freedom and the ability to agree compensation support a narrower reading of art. 809.º.

Adopted in TRL 2021 · See also STJ 2002

The prohibition extends to caps even for slight negligence.

Art. 809.º does not distinguish between degrees of fault.

Not followed in TRL 2021

For this contract: The assessment of this cap turns on its wording, the degree of fault and the contractual circumstances.

Take the question further.

Add a fact, test an assumption or try another route. Affine carries the research forward with you, so you can trace the implications and explore new possibilities.

What if the cap was in the supplier's standard terms, wasn't individually negotiated and also covered gross negligence?

The standard-terms rules now provide another basis for challenging the cap.

What changes

The challenge need not depend on proving gross negligence in this breach.

Standard terms may not limit liability for wilful conduct or gross negligence.
Decreto-Lei n.º 446/85, art. 18.º c)
The court invalidated a cap covering gross negligence even though the breach involved only slight negligence.
TRL 2018
The supplier would bear the burden of proving individual negotiation.
Decreto-Lei n.º 446/85, art. 1.º, n.º 3

And if the price and scope were negotiated, but not the cap?

Negotiating the price and scope does not, by itself, establish that the cap was individually negotiated.

What we believe

A matter takes shape as you understand it.
We’re building Affine to bring clarity to the law, so your judgment can shape what comes next.

Your work already lives there. The law should too.

Bring Affine’s legal research into the conversation, ready whenever a question needs it. Available in Claude, ChatGPT, Harvey, Copilot and your organization’s own AI tools.

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“Due to its quality and consistency, Affine has become an essential tool for VdA’s teams, making them much more efficient in researching legislation and case law.”
Paula Gomes FreireManaging Partner, VdA
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Tiago Melo AlvesManaging Partner, Melo Alves
“Affine’s legal research is efficient, and the end result is akin to having an unlimited number of junior associates dedicated to it.”
André Júdice GlóriaManaging Partner, Gama Glória

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