Acórdão nº 084790 de Supremo Tribunal de Justiça (Portugal), 17 de Março de 1994
Magistrado Responsável | MIRANDA GUSMÃO |
Data da Resolução | 17 de Março de 1994 |
Emissor | Supremo Tribunal de Justiça (Portugal) |
N Privacidade: 1 Meio Processual: REVISTA.
Decisão: CONCEDIDA A REVISTA.
Indicações Eventuais: P LIMA A VARELA ANOT VOLIII 2ED PAG587. A VARELA NOÇ FUND DIR CIV VOLI 5ED PAG503 NOTA6. G TELES CONTRAT PAG58. M PINTO DIR REAIS.
Área Temática: DIR CIV - DIR CONTRAT / DIR REAIS.
Legislação Nacional: CCIV867 ART529 ART1507 ART1513 ART2308. CCIV66 ART12 N2 ART1129 ART1135 C ART1137 N1 ART1140 ART1258 ART1276 ART1287 ART1296 ART1507 ART1524 ART1528. L 2030 DE 1948/06/22 ART21 N1 ART22 N1. CPC67 ART268 ART272 ART273 ART481 B.
Referências Internacionais: ENNECCERUS-NPPERDEY BMJ N102 PAG152.
Sumário : I - Só o Código Civil de 1966 é que instituiu o direito de superfície com a configuração generalizada de um autêntico "jus in re", pelo que não se aplica ao caso dos autos em que os factos decorreram em 1957, pois a entrega da terra ao Réu para cultivar gratuitamente, constitui um comodato, como foi classificado pela Relação. II - O problema da usucapibilidade ou não do direito de superfície só se coloca, por isso, a partir do Código Civil de 1966, pois a barraca foi construida antes da entrada em vigor desse Código, em posse precária que continuou. III - Embora o contrato de comodato tenha sido celebrado durante o Código de Seabra, o problema da restituição da coisa objecto do contrato terá de ser apreciado à sombra do Código Civil vigente - seu artigo 12, n. 2. IV - Há que interpretar extensivamente o artigo 1140 do Código Civil, por imposição da sua "ratio legis": concessão por razão de cortesia - de...
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