Acórdão nº 070124 de Supremo Tribunal Administrativo (Portugal), 07 de Outubro de 1982 (caso None)
Magistrado Responsável | SANTOS SILVEIRA |
Data da Resolução | 07 de Outubro de 1982 |
Emissor | Supremo Tribunal Administrativo (Portugal) |
N Privacidade: 1 Meio Processual: REVISTA.
Decisão: CONCEDIDA A REVISTA.
Indicações Eventuais: V SERRA BMJ N65 PAG169. J TAVARES PRINCÍPIOS FUNDAMENTAIS VI PAG563. GUILHERME MOREIRA INSTITUIÇÕES V2 PAG526. VARELA OBG PAG759.
Área Temática: DIR CIV - DIR OBG / TEORIA GERAL.
Legislação Nacional: CCIV66 ART10 N1 ART119 N3 ART227 ART239 ART272 ART334 ART426 ART612 N2 ART754 ART755 N1 C ART756 A B F ART759 ART762 N2 ART1038 E ART1093 N1 F ART1129 ART1137 ART1138 N1 ART1251 ART1260 ART1273 ART1340 N4 ART1648 N1. CCIV867 ART476 ART498.
Sumário : I - Visto o estatuído nos artigos 1038, alínea f), 1093, n. 1, alínea f), e 1129 do Código Civil, « admissível o empr«stimo ou comodato de um imóvel com destino a habitação. II - A má fé, referenciada no artigo 756, alínea b), deverá ser considerada no sentido psicológico, visto o que já constava do Código Civil anterior, do que se lê na alínea daquele artigo e do que pensava o Prof. Vaz Serra no Boletim do Minist«rio da Justiça, n. 65, página 169. III - Na acepção psicológica, haverá má fé do retentor, quando, havendo vícios ou defeitos na aquisição, deles tenha conhecimento, não se abstendo de realizar as despesas com a coisa retida, apesar de tais vícios ou defeitos, e quando realize as despesas com a consciência de prejudicar ou lesar o direito do dono da coisa. IV - O artigo 1138, n. 1, do Código Civil, equipara o comodatário ao possuidor de má f«, quanto a benfeitorias, mas pensamos que tal doutrina, que respeita unicamente a benfeitorias previstas no artigo 1273 do Código Civil, não traz qualquer achega à resolução do problema da determinação do conceito de má f«, previsto no artigo 756, alínea b), porquanto uma coisa « a existência de má f« para o exercício do direito reconhecido no dito artigo 1273 e outra a má f« para exclusão do direito de retenção. V - Na resolução do problema da determinação da má f«, para exclusão do direito de...
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