The Animal Issue Revisited: Tertium Genus or Subject

Abstract

The article seeks to reflect on the animal theme. Not only a brief perspective of legal historical evolution, but, in particular, about the legal regime emerging from the 2017 reform of the Portuguese Civil Code. In our opinion, the reform was timid, confusing and disappointing. In large part, the applicable regime turns out to be, in large part, the regime of things, applicable on a subsidiary basis. Furthermore, with regard to the right to property, it no longer applies only to things, admitting ownership of animals. However, respect for animal welfare, namely the guarantee of access to water and food, as well as the guarantee of access to medical and veterinary care, including prophylactic, identification and vaccination measures, coexist poorly with the property itself. On the other hand, with regard to the occupation, perplexities remain. Especially with regard to the content of articles 1318 and 1323 CC. And, of course, with regard to the implications arising from the legal nature of the animal. In fact, it matters to know if we are dealing with a thing, an object, a tertium genus or a subject of rights. On the other hand, apart from the options of the Portuguese legislator, we analyze, very briefly, recent theories, whose common denominator is a clear defense and affirmation of animal rights.