Acórdão nº 076862 de Supremo Tribunal de Justiça (Portugal), 07 de Dezembro de 1989
Magistrado Responsável | FERNANDES FUGAS |
Data da Resolução | 07 de Dezembro de 1989 |
Emissor | Supremo Tribunal de Justiça (Portugal) |
N Privacidade: 1 Meio Processual: REVISTA.
Decisão: NEGADA A REVISTA.
Indicações Eventuais: B MACHADO IN PRESSUPOSTOS DA RESOLUÇÃO POR INCUMPRIMENTO PÁG42. BFDC NÚMERO ESPECIAL DE HOMENAGEM AO PROF DR J J T RIBEIRO 1979.
Área Temática: DIR CIV - DIR OBG / TEORIA GERAL. DIR PROC CIV - RECURSOS.
Legislação Nacional: CCIV66 ART236 - ART239 ART249 ART342 N2 ART406 N1 ART432 ART437 ART799 N1 ART801 N1 N2 ART802 ART804 N2 ART808. CPC67 ART666 N2 ART667 N1 ART668 N1 D ART716 N1 ART722 N2 ART726 ART729 N2.
Sumário : I - Conforme decorre do que se dispõe no artigo 406, n. 1 do Código Civil, o contrato só pode modificar-se ou extinguir-se por mútuo consentimento dos contraentes ou nos casos admitidos na lei. Só, portanto, a título excepcional é que se admite a modificação ou extinção da relação contratual por vontade exclusiva duma das partes. II - A resolução do contrato é, precisamente, um dos casos admitidos na lei para a modificação ou extinção do contrato (artigos 432 e 437 do Código Civil). III - Resulta do artigo 808, n. 1 do Código Civil que o credor não pode, em princípio, resolver o negócio, em consequência da mora do devedor, só podendo exigir o cumprimento da obrigação e a indemnização pelos danos. IV - O direito potestativo da resolução só é concedido no caso de impossibilidade culposa (artigo 801, n. 1). Havendo, pois, culpa, a lei permite que o credor fixe ao devedor um prazo razoável para cumprir, sob pena de se considerar impossível o cumprimento. V - A simples mora, supondo a possibilidade futura do cumprimento da...
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