Acórdão nº 0034131 de Court of Appeal of Lisbon (Portugal), 11 de Dezembro de 1990
Magistrado Responsável | SANTOS MONTEIRO |
Data da Resolução | 11 de Dezembro de 1990 |
Emissor | Court of Appeal of Lisbon (Portugal) |
N Privacidade: 1 Meio Processual: APELAÇÃO.
Decisão: CONFIRMADA A SENTENÇA.
Indicações Eventuais: F CORREIA IN NOTAS PARA O ESTUDO DO CONTRATO DE GARANTIA BANCÁRIA.
Área Temática: DIR COM. DIR ECON - DIR BANC.
Legislação Nacional: CCIV66 ART405 ART651.
Sumário: A garantia bancária destina-se a dar ao contraente que pagou por antecipação uma parte do preço da empreitada, do fornecimento ou da compra, a segurança de que as quantias adiantadas lhe serão restituídas na hipótese de o fornecedor, o empreiteiro, o vendedor, etc. não cumprir o pactuado. É este o traço mais característico da garantia de restituição de pagamentos antecipados, uma das formas mais comuns de garantia bancária. O contrato de garantia bancário é inominado. É um negócio jurídico causal, em certo sentido, por o escopo da garantia ser o objecto do contrato principal. Porém, ao contrário da fiança, não tem natureza acessória em relação ao contrato principal, mantendo uma certa autonomia. Esta autonomia é mínima na garantia bancária simples, que não se afasta muito da fiança e em que é pressuposto da obrigação de pagar do dador da garantia o não cumprimento da obrigação do empreiteiro, etc. Mesmo na fiança, o art. 651, do CC respeita apenas à extinção da obrigação principal por qualquer dos meios indicados no capítulo VIII do título II do CC, além do cumprimento. Não há extinção do contrato de empreitada se o dono lhe põe termo...
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