Acórdão nº 075039 de Supremo Tribunal Administrativo (Portugal), 13 de Julho de 1988 (caso None)
Magistrado Responsável | MENERES PIMENTEL |
Data da Resolução | 13 de Julho de 1988 |
Emissor | Supremo Tribunal Administrativo (Portugal) |
N Privacidade: 1 Meio Processual: REVISTA.
Decisão: NEGADA A REVISTA.
Indicações Eventuais: CIT A VARELA RLJ ANO103 PAG476 E ANOTADO VI 4ED PAG274.
Área Temática: DIR CIV - DIR OBG.
Legislação Nacional: CCIV66 ART692 N1 N2 ART701 ART892 ART939. CPC67 ART437 - ART440.
Sumário : I - O direito de preferencia constitui um direito real, de eficacia "erga omnes", prevalecendo sobre qualquer outro direito, (designadamente de natureza real) que, em momento posterior, se constitua sobre o objecto respectivo, sem o conhecimento do preferente, mesmo nos chamados direitos reais limitados, como a hipoteca, pelo que se a acção de preferencia vier a proceder a hipoteca e declarada nula, com efeito "ex tunc " artigos 892 e 939 do Codigo Civil. II - Porem, como a acção da preferencia ainda não foi julgada, a Autora não tem o direito que lhe confere o artigo 701 do Codigo Civil, a exercitar atraves dos artigos 437 a 440 do Codigo de Processo Civil, pois a coisa hipotecada ainda não pereceu nem se tornou insuficiente para a segurança da obrigação. III - As condições verdadeiras são as que resultam de um negocio juridico e as improprias de disposição legal. Ora, no caso concreto, o artigo 701 não atribui ao credor qualquer direito se houver apenas receio fundado de que a coisa se perca ou diminua de valor. IV - Não e, pois, atraves dos artigos 437 e seguintes do...
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