Acórdão nº 062951 de Supremo Tribunal de Justiça (Portugal), 08 de Maio de 1970
Magistrado Responsável | ACACIO CARVALHO |
Data da Resolução | 08 de Maio de 1970 |
Emissor | Supremo Tribunal de Justiça (Portugal) |
N Privacidade: 1 Meio Processual: REVISTA.
Decisão: CONCEDIDA A REVISTA.
Área Temática: DIR PROC CIV. DIR CIV - DIR SUC.
Legislação Nacional: CPC67 ART1376 A. CCIV867 ART715 ART2107 PAR4 PAR7. D 19126 DE 1930/12/16.
Jurisprudência Nacional: AC STJ DE 1947/07/08 IN BMJ N2 PAG200.
Sumário : I - A faculdade conferida ao donatario pelo paragrafo 4 do artigo 2107 do Codigo Civil de 1867 não abrange os bens que ele tiver alienado por negocio juridico translativo de dominio, que tenham deixado de fazer parte do seu patrimonio, pois não se compreende que ele possa, por acto seu, fazer repor na herança bens de que não pode dispor. II - A solução e a mesma relativamente a bens onerados com hipoteca, pois a constituição dum vinculo obrigacional por virtude do qual uma pessoa recebe de outrem, por emprestimo, dinheiro ou coisa fungivel, implica, da parte do mutuario, a alienação virtual de bens do seu patrimonio em medida correspondente ao valor do beneficio auferido, ficando esse patrimonio, nessa proporção, adstrito a realização de uma prestação correspondente ao valor da obrigação contraida. III - Embora se não verifique uma situação de indisponibilidade total, por os bens ainda integrarem o seu patrimonio, ha uma alienação virtual de valores, proveniente da oneração, que justifica a adopção de solução semelhante a da alienação de bens, desde que os co-herdeiros em nada sejam prejudicados. IV - O instituto da colação não visa defender o donatario nas suas relações com o adquirente dos bens, mas sim acautelar e assegurar a restituição desses valores...
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