Defesa
Autor | Helder Martins Leitão |
Cargo do Autor | Advogado |
Páginas | 91 |
Page 91
s.f. (lat. defensa).
s.c.: acto de defender ou de se defender; sustentação de uma tese ou proposição; abrigo.
O réu defende-se por impugnação quando contradiz os factos articulados na petição ou quando afirma que esses factos não podem produzir o efeito jurídico pretendido pelo autor; 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.
Defesa por impugnação: é toda a defesa directa, toda aquela que ataca de frente o pedido, contradizendo os factos aduzidos pelo Autor como constitutivos do seu direito, ou o efeito jurídico que deles pretende tirar o Autor (inconcludência da petição). Defesa por excepção: num sentido amplo, excepção é toda a defesa indirecta; toda a defesa que não seja por impugnação; toda a defesa que não se traduz, portanto, num ataque frontal à pretensão do Autor (na negação da realidade ou da concludência dos factos por ele invocados como constitutivos do seu direito), mas tão-somente num ataque lateral ou de flanco. No sentido legal, só constitui excepção aquela defesa indirecta que seja tendente a arredar a decisão sobre o fundo da causa, a conseguir o reenvio do processo para outro tribunal (translatio judicii) ou a obter a improcedência da acção. Ao contrário do autor, o réu tem o ónus da fundamentação exaustiva da sua defesa. Se o autor puder invocar «causae petendi» alternativas, por ex., compra e venda e usucapião, não tem em processo civil que fundamentar o seu pedido nas duas; se perder por uma, pode invocar a outra noutra acção...
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