Formalidade
Autor | Helder Martins Leitão |
Cargo do Autor | Advogado |
Páginas | 125-126 |
Page 125
s.f. (lat. formale).
s.c.: maneira geral de proceder; praxe; preceito.
O tribunal colectivo aprecia, livremente, as provas, decidindo o juiz segundo a sua prudente convicção acerca de cada facto.
Mas quando a lei exija, para a existência ou prova de facto jurídico, qualquer formalidade especial, não pode esta ser dispensada.
É no tribunal deprecado ou rogado que compete regular, de harmonia com a lei, o cumprimento da carta.
Se na carta rogatória se pedir a observância de determinadas formalidades que não repugnem à lei portuguesa, dar-se-á satisfação ao pedido.
A citação edital determinada pela incerteza do lugar em que o citado se encontra é feita pela afixação de editais e pela publicação de anúncios com as formalidades constantes da lei adjectiva.
A citação edital determinada pela incerteza das pessoas a citar é feita com as mesmas formalidades e as modificações constantes do art. 251.º do C.P.C..
Remissões:
arts. 187.º/2, 251.º e 655.º/2 C.P.C..
Jurisprudência:
Ac. Rel. Évora, de 7/11/85, in B.M.J., 353.º-524.
Ac. Rel. Lisboa, de 10/1/85, in Col. Jur., X, 1.º-144.
Ac. Rel. Lisboa, de 13/12/84, in Col. Jur., IX, 5.º-168.
Ac. Rel. Lisboa, de 17/3/80, in B.M.J., 300.º-444.
Page 126
História:
O princípio de que a prova se destina a formar a livre convicção é, essencialmente, romano, escreve Chiovenda. A liberdade e incoercibilidade da consciência do julgador era de tal maneira sentida e apreciada em Roma, que chegava ao ponto de se reconhecer ao juiz o direito de se abster de julgar quando declarasse, sob juramento, que não via claro nos factos da causa (sibi non liquere). Chiovenda cita um rescrito do imperador Adriano, recolhido no Digesto (cfr. 3, § 2, De testibus, 22,5)...
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