Acórdão nº 084797 de Supremo Tribunal Administrativo, 15 de Março de 1994
Magistrado Responsável | CARLOS CALDAS |
Data da Resolução | 15 de Março de 1994 |
Emissor | Supremo Tribunal Administrativo |
Acordam no Supremo Tribunal de Justiça Por apenso à execução movida pelo Banco Fonsecas e Burnay S.A, contra seu marido A, deduziu B, embargos de executada de mulher casada, alegando, no petitório, que seu marido avalizou as duas livranças, objecto de execução, num acto de puro favor e sem o conhecimento nem consentimento dela embargante, não havendo benefício para o casal, mas, apenas para a subscritora "Lirpese"; a dívida foi, pelo contrário, contraída em prejuízo do casal, havendo lugar à moratória por não provada a comercialidade daquela. Pediu a restituição dos bens penhorados que indica e dos quais alega ter a posse pública pacífica e continua. Após audição das testemunhas foram recebidos os embargos e citado o banco para os contestar, o que este fez impugnando o pedido e pedindo a improcedência daqueles. Seguiu o processo seus trâmites normais e, a final foi proferida sentença que julgou improcedentes os embargos, recorrendo a embargante, mas sem êxito, pois a Relação de Coimbra confirmou o decidido na primeira instância. Pede revista a embargante que, ao alegar, formula as seguintes conclusões: 1 - Nos termos do Artigo 13 do Código Comercial o executado, marido da recorrente não era comerciante. Era gerente de uma sociedade anónima; 2 - O financiamento feito pelo Banco recorrido à sociedade foi titulado por duas livranças avalizadas pelo executado; 3 - O aval é um acto formalmente comercial; 4 - A recorrente (não requerente) só teve conhecimento dos factos quando foi citada para requerer a separação de bens nos termos do Artigo 825 n. 2 do Código de Processo Civil; 5 - Defendeu a posse dos bens penhorados através dos embargos de terceiro de mulher casada; 6 - Para que se verifique a exclusão do direito de embargar de terceiro, por parte do cônjuge não responsável pela dívida, não basta que o exequente tenha pedido a sua citação para requerer a separação da meação dos bens; é necessário, também que não haja lugar à moratória legal prevista no Artigo 1696 n. 1 do Código Civil (cfr. Artigo 1038, n. 2, alínea c) do Código de Processo Civil); 7 - Nas execuções fundadas em títulos de crédito, o pagamento das dívidas comerciais de qualquer dos cônjuges que tiver de ser feita pela meação do devedor nos bens comuns do casal só está livre da moratória legal ao abrigo do disposto no Artigo n. 10 do Código Comercial, se estiver provada a comercialidade substancial da dívida exequenda (Assento S.T.J. n.4/78 de 13 de Abril); 8 - É ao exequente que incumbe demonstrar a comercialidade substancial da dívida exequenda; 9 - Os embargos de terceiro, pela sua própria ratio (meio de defesa perante a execução), não são um meio processual adequado para o exequente/credor provar a comercialidade substancial da dívida exequenda; 10 - Na hipótese de se admitir que o...
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