Acórdão nº 0038951 de Court of Appeal of Lisbon (Portugal), 19 de Março de 1991
Magistrado Responsável | HUGO BARATA |
Data da Resolução | 19 de Março de 1991 |
Emissor | Court of Appeal of Lisbon (Portugal) |
N Privacidade: 1 Meio Processual: APELAÇÃO.
Decisão: CONFIRMADA A SENTENÇA.
Área Temática: DIR CIV - DIR REAIS / DIR CONTRAT. DIR PROC CIV - PROC EXEC.
Legislação Nacional: CCIV66 ART829 ART892 ART1305 ART1311. CPC67 ART638 N1 ART874 ART875 ART882 ART908 N1 ART909 N1 D.
Jurisprudência Nacional: AC STJ DE 1979/02/13 BMJ N289 PAG176. AC RL DE 1974/12/06 BMJ N242 PAG354.
Sumário: I - A venda de bem alheio vem tratada no art. 829 do CC. A ideia mestra do instituto é a de que essa venda é nula. II - Nula, entre as partes que realizaram a compra e venda. Porque em relação ao real proprietário ela é inoperante, ineficaz (art. 1305 e 1311 CC), cfr. STJ 13-2-79, BMJ 284-176. III - Em execução judicial, quando o executado continua a não pagar a dívida, são-lhe penhorados bens, que depois o tribunal, substituindo-se ao executado, a entrega ao exequente como pagamento (arts. 874 e 875 CPC) ou faz vender (art. 882, CPC) para com o seu produto se dar pagamento ao exequente. IV - Não é arrojado dizer-se que aqui também mediatamente se reflexionará o espírito do art. 892 do CC quando o bem penhorado e vendido seja havido por propriedade do executado (RL, 6-12-74, BMJ 242-354). V - Conflituando dois direitos de propriedade - o do original ou real proprietário e o do subsequente ou aparente proprietário, o deslindar da situação jurídica depende da óptica que se assuma. VI - O real proprietário ou opciona por reaver a coisa ou desinteressa-se desta e contenta-se com uma indemnização. No primeiro caso, usará da acção de reivindicação (art. 1311 CC), que tem de ser dirigida contra quem tem...
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