Acórdão nº 0059442 de Court of Appeal of Lisbon (Portugal), 28 de Maio de 1992
Magistrado Responsável | SOUSA DINIS |
Data da Resolução | 28 de Maio de 1992 |
Emissor | Court of Appeal of Lisbon (Portugal) |
N Privacidade: 1 Meio Processual: APELAÇÃO.
Decisão: ALTERADA A DECISÃO.
Área Temática: DIR COM - TIT CRÉDITO. DIR CIV - DIR FAM. DIR PROC CIV - PROC EXEC.
Legislação Nacional: CCOM888 ART10 ART15. CPC67 ART825 ART1037. CCIV66 ART1690 N1 ART1692 N1 A ART696 N1.
Jurisprudência Nacional: AC STJ DE 1980/02/05 IN BMJ N294 PAG244. AC RP DE 1986/10/28 IN CJ XI T4 PAG240. AC RL DE 1990/03/08 IN CJ XV T2 PAG118. ASS STJ DE 1964/11/27 IN BMJ N141 PAG171. ASS STJ DE 1978/04/13 IN BMJ N276 PAG99. AC RC DE 1987/01/06 IN CJ XII T1 PAG27. AC RC DE 1990/04/03 IN CJ XV T2 PAG61. AC RL DE 1988/10/13 IN CJ XIII T4 PAG124. AC RL DE 1990/03/08 IN CJ XV T2 PAG119.
Sumário: I - A comercialidade substancial da dívida pode ser discutida no processo de embargos (RLJ. n. 111 pag313; ROA. 38, 1978, pag552; Pinto Furtado, Disposições Gerais do CCOM, 59-60; STJ, 5/2/80, BMJ n294 pag244; RP, 28/10/86, CJ., XI, T4, pag240; RL, 8/3/90, CJ, XV, t2, pag118). II - O assento do STJ de 27/1/64 continua em vigor por não ter sido revogado pelo Assento de 13/4/78. E aquele permite discutir, para efeitos do art10 do CC se a obrigação tem ou não uma natureza substancialmente comercial, uma vez estabelecida a relação cartular no domínio das relações imediatas. III - No domínio das relações imediatas também se impõe a dispensabilidade da acção declarativa prévia, que teria sempre de ser proposta contra os dois conjuges porque o caso julgado em relação a um deles não seria extensivo ao conjuge não accionado. IV - A causa de pedir é, nos embargos, a ofensa da posse, cumprindo ao embargado exequente provar que tal ofensa se não verificou por ser legítimo o acto (pex., a penhora) nada impedindo que alegue a comercialidade substancial da dívida como elemento legitimador do acto que o embargante pôs em causa. V - A não se entender assim, o art1037 n. 1, CPC., ficaria de certo modo esvasiado de conteúdo, com reflexos...
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