Acórdão nº 065173 de Supremo Tribunal Administrativo (Portugal), 29 de Abril de 1975 (caso None)
Data | 29 Abril 1975 |
Órgão | http://vlex.com/desc1/1541_01,Supremo Tribunal Administrativo (Portugal) |
N Privacidade: 1 Meio Processual: REVISTA.
Decisão: CONCEDIDA A REVISTA.
Área Temática: DIR CIV - TEORIA GERAL / DIR OBG / DIR CONTRAT / DIR FAM.
Legislação Nacional: DL 49408 DE 1969/11/24 ART82 N3. CCIV66 ART342 ART350 ART473 ART480 ART482 ART1691 N1 C ART1692 B.
Jurisprudência Nacional: AC STJ DE 1968/06/21 IN BMJ N178 PAG186.
Sumário : I - Tendo o Tribunal Colectivo afirmado diversas quantias entregues pela sociedade autora ao reu marido o foram a solicitação deste e a titulo de "abonos", e vindo tambem provado que o mesmo reu era empregado da autora, auferindo dessa actividade ordenado, gratificações, subsidios e participação nos lucros liquidos da empresa, tem de entender-se, de harmonia com a presunção legal estabelecida pelo n. 3 do artigo 82 do Decreto-Lei n. 49408, de 24 de Novembro de 1969, que tais "abonos" representavam adiantamentos feitos pela entidade patronal ao seu empregado, por conta de retribuições futuras. II - Tendo a autora feito, assim, a prova dos factos constitutivos do seu direito, eram os reus (marido e mulher) que deviam provar quaisquer factos impeditivos, modificativos ou extintivos do direito invocado, pois e esta a repartição do onus da prova que a lei preve no artigo 342 do Codigo Civil, conjugada com a eficacia probatoria reconhecida as presunções legais juris tantum no artigo 350 do mesmo diploma. III - No contrato de mutuo, a entrega da coisa pelo mutuante ao mutuario filia-se so na confiança de que goza o mutuario e que serve de causa a entrega da coisa pelo mutuante independentemente de qualquer outro negocio juridico. IV - Mas esta tipicidade não se ajusta ao caso concreto, pois aqui a entrega do "abono" teve como causa a suposta prestação futura de trabalho, por parte do reu marido, a empresa autora, tratando-se...
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