Excepção
Autor | Helder Martins Leitão |
Cargo do Autor | Advogado |
Páginas | 114-115 |
Page 114
s.f. (lat. exceptione).
s.c.: acto ou efeito de exceptuar; desvio da regra geral; privilégio.
O réu defende-se por excepção quando alega factos que obstam à apreciação do mérito da acção ou que, servindo de causa impeditiva, modificativa ou extintiva do direito invocado pelo autor, determinam a improcedência total ou parcial do pedido.
Na primeira hipótese, o réu invoca excepções dilatórias; na segunda excepções peremptórias.
As excepções dilatórias, apelidam-se assim, porque conduzindo à absolvição da instância, não obstam à propositura de outra acção sobre o mesmo objecto - do latim dilatoriu, que tende a adiar, a prolongar.
São eles, entre outras:
* nulidade de todo o processo;
* ilegitimidade de qualquer das partes;
* falta de personalidade ou de capacidade judiciária;
* falta de autorização ou deliberação necessárias ao autor;
* falta, insuficiência ou irregularidade de mandato;
* incompetência do tribunal, absoluta ou relativa;
* litispendência;
Page 115
* caso julgado;
* preterição do tribunal arbitral;
* coligação de autores ou réus quando entre os pedidos não exista a conexão exigida no art. 30.º do C.P.C.;
* pluralidade subjectiva subsidiária.
As excepções peremptórias importam a absolvição total ou parcial do pedido e consistem na invocação de factos que impedem, modificam ou extinguem o efeito jurídico dos factos articulados pelo autor.
Remissões:
arts. 487.º/2 e 493.º a 499.º C.P.C..
Jurisprudência:
Ac. Rel. Coimbra, de 18/3/03, in JTRC01932/ITIJ/Net.
Ac. Rel. Coimbra, de 15/5/01, in JTRC01351/ITIJ/Net.
Ac. Rel. Évora, de 2/11/00, in Col. Jur., 2000, 5.º-255.
História:
A origem do termo « excepção», quando aplicado a propósito dos vários meios de defesa consentidos ao Réu, deve buscar-se no direito romano, onde surgiu no período do processo formulário. Nesse tempo o pretor, em virtude da sua função correctiva do jus civile, muitas vezes concedia que o Réu fosse...
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