Acórdão nº 04B1230 de Supremo Tribunal de Justiça (Portugal), 06 de Maio de 2004 (caso NULL)
Data | 06 Maio 2004 |
Órgão | http://vlex.com/desc1/1997_01,Supreme Court of Justice (Portugal) |
Acordam no Supremo Tribunal de Justiça 1. "A" deu à execução que moveu contra B, C e D dois cheques sacados pela primeira sobre o Banco E à ordem do executado C, avalizados pela executada D, e que aquele endossara ao exequente; os cheques não foram datados nem foram apresentados a pagamento, e não podendo valer como tal, foram dados à execução, não nessa qualidade, mas na de simples documentos particulares, assinados pelo devedor, que importam a constituição ou reconhecimento de obrigações pecuniárias, cujo montante seja determinado, nos termos do art. 46º, 2, c), CPC Código de Processo Civil. A 1ª instância não aceitou a pretendida força executiva daqueles documentos, por não incorporarem qualquer referência à relação subjacente. A Relação do Porto concedeu parcial provimento ao agravo que lhe levou o exequente, e mandou que a execução prosseguisse, mas tão só quanto ao executado C, pois considerou que só quanto a este os cheques, enquanto quirógrafos, podiam valer como documento particular com as características previstas na citada alínea c), do nº 2, do art. 46º, CPC. Só o exequente se não conformou com o decidido, e agravou com fundamento em que o endosso não exonera o endossante das suas responsabilidade para com o portador (isto, quanto à executada B) e em que o aval é uma forma de garantia do pagamento do cheque (quanto à executada D). A parte contrária não alegou. 2. E, decidindo, dir-se-á muito simplesmente que o agravante se esqueceu de que deu à execução, não dois cheques, mas dois simples documentos particulares...
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