Acórdão nº 566/08.7TVLSB.L1-2 de Court of Appeal of Lisbon (Portugal), 08 de Outubro de 2009
Magistrado Responsável | MARIA JOSÉ MOURO |
Data da Resolução | 08 de Outubro de 2009 |
Emissor | Court of Appeal of Lisbon (Portugal) |
S Meio Processual: APELAÇÃO Decisão: CONFIRMADA PARCIALMENTE A DECISÃO Sumário: I – Não se estando perante uma promessa que tenha por objecto a celebração de contrato oneroso de transmissão ou constituição de direito real sobre edifício ou fracção autónoma dele, já construído, em construção ou a construir, e tendo havido sinal, existia uma presunção ilidível de convenção do afastamento da execução específica.
II - Ao cederem a outrem o que haviam prometido ceder às AA. os RR. colocaram-se - por sua vontade - numa situação de incumprimento naturalístico definitivo, não podendo o Tribunal proferir sentença que produzisse os efeitos da declaração negocial dos RR. uma vez que estes já não eram titulares do que se haviam obrigado a ceder às AA..
III – Embora o nº 2 do art. 467 do Cod. Com. permita, em comércio, a venda de coisas alheias - ficando o vendedor obrigado a adquirir por título legítimo a propriedade da coisa vendida e a fazer a entrega ao comprador, sob pena de responder por perdas e danos - tal permissão pressupõe que a mesma seja realizada no exercício do comércio, isto é, praticada entre comerciantes.
IV – Sendo geralmente aceite como válido o contrato-promessa de compra e venda de coisa alheia, quando o contrato-promessa dos autos foi celebrado os RR. fizeram uma promessa de venda de coisa «própria» e não de coisa «alheia».
V – Tendo-se os RR. comprometido a vender às AA. quotas representativas de 80% do capital social – ficando com as...
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