Embargo à execução
Autor | Helder Martins Leitão |
Cargo do Autor | Advogado |
Páginas | 108-109 |
Page 108
s.m. (lat. imbarricare).
s.c.: obstáculo; estorvo; sequestro.
s.f. (lat. executione).
s.c.: acto, efeito ou modo de executar; cumprimento de uma ordem ou sentença.
O executado pode opôr-se à execução por embargos.
Fundando-se a execução em sentença, a oposição só pode ter algum dos fundamentos seguintes:
- inexistência ou inexequibilidade do título;
- falsidade do processo ou do traslado ou infidelidade deste, quando uma ou outra influa nos termos da execução;
- falta de qualquer pressuposto processual de que dependa a regularidade da instância executiva, sem prejuízo do seu suprimento;
- falta ou nulidade da citação para a acção declarativa quando o réu não tenha intervindo no processo;
- incerteza, inexigibilidade ou iliquidez da obrigação exequenda, não supridas na fase introdutória da execução;
- caso julgado anterior à sentença que se executa;
- qualquer facto extintivo ou modificativo da obrigação, desde que seja posterior ao encerramento da discussão no processo de declaração e se prove por documento.
A prescrição do direito ou da obrigação pode ser provada por qualquer meio;
Page 109
- tratando-se de sentença homologatória de confissão ou transacção, qualquer causa de nulidade ou anulabilidade desses actos.
Remissões:
arts. 813.º a 820.º C.P.C..
Jurisprudência:
Ac. S.T.J., de 29/4/93, in B.M.J., 436.º-319.
Ac. Rel. Lisboa, de 18/4/83, in B.M.J., 333.º-504.
Ac. S.T.J., de 17/2/83, in B.M.J., 324.º-525.
História:
A doutrina do Código de 76 era incongruente; os embargos produziam efeito mais enérgico, precisamente quando o título executivo, ao qual se opunham, era uma sentença...
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