Acórdão nº 4595/07.0TVLSB-6 de Court of Appeal of Lisbon (Portugal), 01 de Março de 2010
Data | 01 Março 2010 |
Órgão | Court of Appeal of Lisbon (Portugal) |
S Meio Processual: AGRAVO Decisão: CONFIRMADA A DECISÃO Sumário: 1. Não é legalmente admissível a adesão ao recurso da parte contrária por o artigo 683º CPC apenas prever a adesão da comparte.
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A cessão da posição contratual configura um negócio causal.
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A cessão da posição contratual implica a existência de dois contratos: o contrato-base e o contrato-instrumento da cessão, que é o realizado para transmissão de uma das posições derivadas do contrato-base.
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O artigo 425º CC, ao dizer que a forma da transmissão, a capacidade de dispor e de receber, a falta e vícios da vontade e as relações entre as partes definem-se em função do tipo de negócio que serve de base à cessão, apela ao contrato- –instrumento.
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Isso não significa, porém, que não se atenda também aos requisitos de forma do contrato-base atendendo às razões subjacentes aos requisitos de forma.
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As razões que justificam a exigência da forma escrita para o contrato-promessa – ponderação e segurança – justificam a sua aplicação ao contrato-instrumento, pois o cessionário vai ocupar o lugar do cedente.
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A exigência de forma escrita para o contrato-promessa de compra e venda de imóvel (bem como do contrato-instrumento da cessão da posição contratual) é uma formalidade ad substantiam, cuja inobservância gera nulidade.
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Só é possível falar-se em cessão da posição contratual nula por falta de forma se estiverem alegados e demonstrados os factos que integram a cessão da...
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