Acórdão nº 0720506 de Tribunal da Relação do Porto, 27 de Fevereiro de 2007
Magistrado Responsável | EMÍDIO COSTA |
Data da Resolução | 27 de Fevereiro de 2007 |
Emissor | Tribunal da Relação do Porto |
Acordam no Tribunal da Relação do Porto: RELATÓRIO B………. deduziu, por apenso à execução comum para pagamento de quantia certa que, no .º Juízo de Execução do Porto, para onde foi remetida pelo Tribunal Judicial de Paredes, lhe move o C.........., S.A., a presente oposição (embargos), pedindo a sua absolvição dos pedidos formulados na execução.
Alegou, para tanto, em resumo, que prestou no dorso da livrança dada à execução o aval que dele consta; porém, quando tal ocorreu, o título encontrava-se completamente em branco, sendo a embargante completamente alheia ao seu preenchimento; acresce que a livrança não foi apresentada a protesto, pelo que a exequente não tem o direito de acção, designadamente contra a embargante.
Contestou a embargada, alegando, também em resumo, que a livrança exequenda se refere a um contrato de mútuo celebrado com a contestante, do montante de 23.400.000$00, por D.......... e E……….; foi para garantia das obrigações decorrentes daquele empréstimo que os mutuários, juntamente com a embargante, conferiram à embargada poderes para que preenchesse o título exequendo; a livrança foi preenchida porque não foram cumpridas as obrigações constantes do contrato; acresce que o portador da livrança não carece de fazer o protesto dela para fazer valer os seus direitos contra o avalista do subscritor, cuja posição está equiparada à da pessoa a quem prestou o aval; termina, por isso, pedindo a improcedência dos embargos.
Proferiu-se, seguidamente, nos autos saneador-sentença que julgou improcedentes os deduzidos embargos.
Inconformada com o assim decidido, interpôs a embargante recurso para este Tribunal, o qual foi recebido como de apelação e efeito meramente devolutivo.
Alegou, oportunamente, a apelante, a qual finalizou a sua alegação com as seguintes conclusões: 1ª - "A relação que intercede entre a Recorrente e o Recorrido é uma relação imediata, na medida em que a obrigação daquele encontra como primeiro credor o beneficiário, o qual assim se lhe opõe directamente, mostrando-se, assim, com o devido respeito, incorrecta e inconstitucionalmente interpretado o artº 17º LULL, tornando possível ao Recorrente a discussão das excepções na oposição à execução que lhe é movida pelo Recorrido, quando este seja ou continue a ser o beneficiário originário da livrança, mantendo-se a mesma identidade da relação causal, subjacente, porque não se saiu da relação subjacente que deu origem ao título; 2ª - O preenchimento de uma livrança em branco, condição imprescindível para que possam verificar-se os efeitos normalmente resultantes da livrança, faz-se de harmonia com o respectivo pacto de preenchimento, expresso ou tácito, pacto esse que deverá definir a obrigação cambiária, designadamente, a fixação do seu montante, as condições relativas ao seu conteúdo, o tempo do vencimento, a sede de pagamento, a estipulação do juros; 3ª - As livranças foram preenchidas pelo Recorrido, desconhecendo a Recorrente, de todo, a existência de qualquer pacto de preenchimento, pelo que, que presume que houve preenchimento abusivo da Livrança; 4ª - O objecto do aval, no momento em que...
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