This was an appeal in a carriage of goods by sea case. The plaintiff AA brought a claim against the defendants A, B, and C for EUR 14,010.98 as compensation for pecuniary and non-pecuniary damages resulting from breach of contract. AA claimed to have entered into a contract with A for the transport of personal effects from Portugal to Brazil. A subsequently entered into a maritime transport contract with B under a bill of lading. C was the actual carrier. After shipping, A informed AA that the consignee identified for receipt of the personal effects (ie AA) could not be a private individual, but rather had to be an NVOCC agent, with a CNPJ [company registration number for customs purposes]. Consequently, the defendants arranged for the return of the dispatched goods to Portugal.

AA claimed that this breach caused monetary damages corresponding to the price of shipping the goods, the additional costs of collecting the goods in Portugal, the costs of using a second freight forwarding company to collect the goods, the amounts paid to the customs agent, the costs of trips made by the plaintiff to Brazil to collect the goods, and the amount of rent paid for a stay in Brazil. AA also suffered moral damages, consisting of nervousness, worry, and sadness due to not knowing the whereabouts of the goods, the bureaucracy AA had to deal with, given the alleged obstacles raised by Brazilian Customs not accepting part of the cargo as personal property, as well as the embarrassment of having to borrow money from AA's sister (NN) to pay the amounts requested to collect the goods, amounting to moral damages of EUR 3,500.

The defendant A invoked prescription, given the expiry of the 10-month period, counted from the conclusion of the provision of contracted services, as referred to in Decree-Law No 255/99, of 7 July [which governs freight forwarding services]. A also argued that the plaintiff's action had lapsed due to the expiry of one year from the delivery of the goods, or the date on which they should have been delivered, under art 3.6 of the Hague Rules, incorporated into domestic law by Decree-Law No 37,748 of 1 February 1950. A further alleged that the bill of lading was completed in compliance with the information provided by the plaintiff, and that, regarding the identification of the consignee and notify party, the information did not comply with Brazilian law, as they could not be individuals, but rather NVOCC agents, with a CNPJ (ie a legal entity registered with the Brazilian customs authorities). Despite having been requested to do so, the plaintiff did not indicate an alternative authorised agent. In order to avoid the imposition of large fines by the Brazilian customs authorities, and because it was the least onerous solution, A therefore requested the return of the goods to Portugal. This outcome was solely attributable to the plaintiff.

The Courts below held that both the plaintiff and the defendants were at fault for breach of the contract in question. However, the statute of limitations had extinguished the plaintiff's right, and the defendants were therefore acquitted of all claims. The plaintiff appealed.

Held: The appeal is upheld, and the judgment in question is annulled. The case should be returned to the first instance Court for rehearing.

After an exhaustive analysis of the parties' arguments and facts, the Court of Appeal held that AA's claim was based on the defendants' pre-contractual liability, in particular for not having informed AA about, and not having ensured the fulfilment of, the conditions that would be essential for the subsequent fulfilment of their end of the bargain, despite having known that the goods would not be cleared through customs in Brazil, causing higher costs for their transport back to Portugal.

The Court stated that, without prejudice to the fact that art 227.2 of the Civil Code, in which the legislature enshrined the institution of precontractual liability, establishes that such liability is subject to a limitation period under art 498 of the Civil Code, the solution to this problem requires determining whether this liability is contractual or extra-contractual in nature.

If it is understood that culpa in contrahendo [fault in formation of contract] is still contractual in nature, this issue would have to be subject to the regulatory regime of the transport or shipping contract, which would result in the application of the same 10-month limitation period to the defendants' liability, since this rule is imposed as a special rule which takes precedence over the general rule of art 498 of the Civil Code, applicable by reference to art 227.2 of the Civil Code.

However, if it is understood that culpa in contrahendo is of a tortious nature - ie is extra-contractual, it is natural to subject the situation to a solution outside the regulation of the transport contract, including the solution of prescription of liability within a period of three years, which is established in art 498.1 of the Civil Code.

There is a need to identify a 'third way' to which liability in contrahendo can be attributed, as liability that does not derive from the contract, but which arises in connection with the contract. If it occurs in this context, where the parties are already in a relationship with a view to entering into a contract with each other, the law imposes on them the duty to observe the dictates of good faith, the breach of which, if the contract is not implemented, may give rise to an obligation to compensate for losses that any parties may suffer as a consequence of such breach.

In these circumstances, it is useful to inquire into the possibility or usefulness of verifying culpa in contrahendo on the part of the defendants with respect to the transport contract entered into between the parties. It is therefore necessary to determine whether the plaintiff's cause of action in this case includes any fault in the formation of the contract by the defendants, due to their breach of information duties in terms that led to the plaintiff having concluded this contract under conditions that did not allow achievement of the objective of the contract - to have the goods delivered in Brazil.

When drafting a new judgment, in which the issue of the defendants' possible liability for culpa in contrahendo must be assessed, the reviewing Court must also assess whether it is necessary to supplement the relevant facts, particularly in light of this Court's indication as to which facts may be useful for this purpose.