Acórdão nº 077549 de Supremo Tribunal de Justiça (Portugal), 15 de Maio de 1990
Magistrado Responsável | JORGE VASCONCELOS |
Data da Resolução | 15 de Maio de 1990 |
Emissor | Supremo Tribunal de Justiça (Portugal) |
N Privacidade: 1 Meio Processual: REVISTA.
Decisão: NEGADA A REVISTA.
Área Temática: DIR CIV - DIR CONTRAT / DIR OBG. DIR PROC CIV. DIR CONST - DIR FUND.
Legislação Nacional: CCIV66 ART241 ART442 ART495 ART759 N2 ART2020 NA REDACÇÃO DO DL 236/80 DE 1980/07/18. CONST76 ART36 N1 ART62 ART67 N1. DL 236/80 DE 1980/07/18 ART2. CPC67 ART282 ART618 N1 D.. RIS26 ART264-A.
Sumário : I - A alteração ao artigo 442 do Codigo Civil pelo Decreto-Lei n. 236/80 ao conferir ao promitente-comprador direito de retenção sobre a coisa, pelo credito resultante do incumprimento pelo promitente-vendedor, com prejuizo dos credores hipotecarios, não viola o artigo 62 da Constituição onde se proclama a garantia do direito de propriedade privada que seria afectado pela aplicação retroactiva do citado diploma de 1980, porque nem a hipoteca e um direito de propriedade sobre uma coisa, mas simples garantia especial das obrigações, nem o citado diploma esta a ser aplicado, no caso concreto, retroactivamente visto o incumprimento do contrato-promessa se ter verificado em 1984. II - Alias, na graduação entre garantias especiais das obrigações ja desde 1966 que o actual Codigo Civil confere ao direito de retenção prevalencia sobre a hipoteca, ainda que esta tenha sido registada anteriormente (artigo 759 n. 2 do Codigo civil); por isso, a nova lei, ao definir em abstracto um novo caso de direito de retenção, não esta a afectar um direito anterior de credor que, no momento da constituição da garantia hipotecaria, estivesse seguro de inoponibilidade de nenhum outro direito prioritario...
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