IV. PROBLEM ANALYSIS Having contextualised the problem at hand, it is now necessary to analyse the issue through the lens of the instruments of civil liability, in order to ascertain what has already been undertaken and what may, or ought to, be further pursued. In this respect, the preliminary question to be addressed is whether the Portuguese legal order recognises a genuine duty to refrain from serving alcoholic beverages to a visibly intoxicated customer. The law is silent on this point; however, doctrinal constructions increasingly advocate the existence of an implicit duty of protection, both of the consumer and of the wider community. Indeed, whether there exists a legal duty to refuse service of alcoholic beverages to visibly intoxicated clients is central to the present artcle. Law n.º 50/2013, referred to above, prohibits the sale of alcohol to minors and to adults in certain contexts, but it does not contain any express provision requiring refusal of service to intoxicated persons. Nonetheless, through the application of general principles—particularly those governing civil liability and consumer protection—it may be argued that there exists a duty to safeguard health and safety, from which an implicit obligation to abstain from serving alcohol to intoxicated individuals can be inferred. Menezes Cordeiro acknowledges the possibility of recognising ancillary duties within contracts (in this case, the contract for the supply of alcohol in a hospitality establishment), grounded in the principle of objective good faith. The provision of alcohol in excess, when the client’s condition is visibly impaired, may thus constitute a breach of such a duty. In short, even though the law does not expressly impose such an obligation, there is an emerging tendency to recognise a duty of abstention as an imperative of public health and collective safety. 4.1. Omission and civil liability Liability for omission presupposes the prior existence of a legal duty to act, as established in Article 486 of the Civil Code. The logical corollary is that, for a bar or restaurant to incur civil liability, the bartender’s failure to cease serving alcohol to an already intoxicated customer can only be regarded as an unlawful omission if one accepts the existence of a duty to abstain from serving in such circumstances. However, illegality by omission, in the name of legal certainty, requires explicit legislative provision, precisely so that no one is subjected to a sanction for conduct not generally regarded as unlawful. In different words, no one can be surprised by an unknowned legal duty to act. 183 THE CIVIL LIABILITY OF BARS AND RESTAURANTS
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