Facto
Autor | Helder Martins Leitão |
Cargo do Autor | Advogado |
Páginas | 121-122 |
Page 121
s.m. (lat. factu).
s.c.: qualquer dado da experiência; acção realizada; acontecimento.
Exceptuados os factos notórios, os factos de conhecimento oficial do tribunal e os factos indiciadores de uso anormal do processo (arts. 514.º, 665.º e 664.º), o juiz só pode servir-se dos factos constitutivos, impeditivos, modificativos ou extintivos das pretensões formuladas na acção (factos essenciais), alegados pelas partes, seja qual for a natureza ou tipo da acção. Sem prejuízo das restrições estabelecidas noutras disposições legais, nomeadamente, quanto às condições em que pode ser alterada a causa de pedir, deve a sentença tomar em consideração os factos constitutivos, modificativos ou extintivos do direito que se produzam posteriormente à proposição da acção, de modo que a decisão corresponda à situação existente no momento do encerramento da discussão.
Remissões:
arts. 490.º, 513.º, 514.º, 663.º e 664.º C.P.C..
Jurisprudência:
Ac. Rel. de Porto, de 16/1/03, in JTRP0035165/ITIJ/Net.
Ac. Rel. de Porto, de 9/1/03, in JTRP0035491/ITIJ/Net.
Ac. S.T.J., de 28/5/02, in Sumários, 5/2002.
História:
Chiovenda escreve: «A rigorosa aplicação do princípio - a lei deve actuar como se aparecesse no momento em que a acção foi proposta - conduziria a duas consequências práticas:
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o juiz não deve ter em conta os factos extintivos do direito posteriores à instauração da demanda; 2.ª não deve, igualmente, ter em conta os factos constitutivos do direito e da acção posteriores à apresentação da petição inicial. O direito romano clássico oferece-nos exemplos destas duas aplicações rigorosas. No direito moderno, este rigor...
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