Gonc's debts and brothers Court case

Gonc's debts and Court case

José Filipe Nogueira

Lawyer

Honorable Judgeof the Juvenile and Family Court for the District of Seixal

2nd CivilCourt

Process nº 3841/05.9TBSXL

António de Sousa Amaral, resident at Quinta da Mata nº4 3rd left, Corroios, holder of identity card nº 34142109 and bearer of contributor card nº 115780327, divorced, natural of the parish of Torredeita, Viseu county, is thus accessing to the invitation constant of dispatch of pages 64-66, presents, in the terms provided in the nº 3 of article 508º of C.P.C. new initial articulated for implementation of factual elements considered missing, which makes as followed and with the next elements:

1º
In the constancy of marriage between the defendant and Isabel Maria Costa Basílio (his former spouse) celebrated a contract of mutual with mortgage with Caixa Geral de Depósitos (a bank) by which gave them the amount of € 2.720.00$00 (€ 13.567.30) with the aim of acquiring by borrowers destined to residential property.

2º
As insurance guaranty of payment of mutual agreement mentioned, it was through he mentioned benefits created a mortgage about the urban property which was achieved by them, at the location of Ferreira de Castro street, lot F, 11º at Miratejo, Corroios parish, Seixal county, as presentation 07/310884, Av. 1 legally registered at Conservatory of Building Registration (Cfr. Doc. together with nº 1 with Initial Request of Injunction arrest which is added to these principal records which are here reproduced)

3º
Due to lack of fulfillment by those who agreed, not fulfilled the obligations of refund of the amount which assumed before CGD, the same presented in the day 25.06.1996 against those who agreed an executive action to collect the right amount (Cfr. Doc. which is added under nº1 and fully reproduced) which followed it´s terms through 2nd Civil Court of the Court of Seixal county, under the file nº 536/96.

4º
In the pendency of the mentioned mortgage execution, the defendant hired, with the author, his brother, which was reduced to a formalized contract of buying / selling celebrated in April 9th 2002, the purchase of the bonded property, being agreed that the price of selling to be paid by the author was equal to the amount that had to be paid to Caixa Geral de Depósitos, while as mortgage creditor (Cfr. Doc.added under nº 4 with Initial Injunction Arrest Request which is added to these main records and which are reproduced)

5º
It was agreed, that in the promise contract mentioned, which the defendant promised to sell the property identified in the article 2º which the defendant promised achieved it by the price due to Caixa Geral de Depósitos to allow this to grant the distrate of voluntary mortgage, with the extinction of executive mortgage which – as indicated – was instaured.

6º
Later, and at 29th November 2002, by granted attorney in the 2nd notary´s office of Faro, the defendant constitutes his representative the author, granted him powers to, in his name and representation, to concede the promised notary´s document of buying / selling the mentioned property, which both agreed, more stating that the person who ordered – the author here – was allowed to make business with himself and that the mentioned document, by recognizing and declare that it was written in the interest of the mandatory, couldn´t, without permission of this to be revoked or not expired due to death or disqualification of the mandatory, everything in agreement with the article 265, number 3175, number 2, both of Civil code, staying additionally the procurator instaured, fully dismissed of showing bills (Cfr. Doc.together under nº3 of Initial Injunction arrest Request which is added to the main documents here reproduced)

7º
Meanwhile, and because the 1st defendant married, at 6 July 2002, with the here 2nd defendant (Cfr. Doc.nº2 which is added and reproduced) expected the author of this authorization expressed for the celebration of promised contract which is about the same promise adjusted at 9th April 2002, permission which the same allowed through declaration certified through notary´s office (Cfr. Doc.together with nº6 of Initial Injunction arrest Request which is added to the main documents here reproduced)

8º
In compliance of what has been agreed at the promise contract of buying / selling, which the author proceed to the payment of the value claimed through CGD, the amount of € 59.850.75, value that the author deposited – through check nº 4523338150, through bank account of BCP, in the mutual institution (Cfr.Docs which, under numbers 3 and 4 are together and now reproduced)

9º
In the sequence of that deposit / payment, the Caixa Geral de Depósitos granted the distrate of mortgage and extinguished the executive action mentioned in 2º, by uselessness supervening (Cfr. Docs which are under numbers 5 and 6 together now reproduced)

10º
The defendant proceed the delivery of the property of the contract buying / selling which the author, delivering the keys, transmitted in favour of the author the possession of the property in price, possession which Because not to jeopardize other´s rights, and in any case the author is not aware, was in good-faith.

11º
Following knowledge, of the property´s owner, due to delivery of material through defendant and the keys were and have been symbolic expression, the author, in good-faith, proceed the repairs in the property with the cost of € 8.898.

12º
As truth, at the date in which was granted by the defendant to the author the possession of property, this property was in bad shape, whether paints on walls and the floor of several parts of the house, dishes, plumbers, kitchen, bathroom.

13º
Such destruction, due to it´s intensity, removed housing conditions.

14º
The mentioned repairs, carried through and with the cost of the author, namely electrical devices, locks in the doors, treatment of floor, general paints, new dishes, new bathroom devices, toilets, among others, as it is in the documents, numbers 8 to 20, together with Initial Injunction arrest Request which is added to the main documents here reproduced.

15º
The defendant, however, violated the obligations which freely assumed during the celebration of contract.

16º
With effect, at the day 26.07.2004, the defendants proceed to the sale of the property, object of that same contract to Patrícia Antunes Mamede, single, adult, resident at Bento de Jesus Caraça street, nº6 2nd right floor, Laranjeiro, Almada, which formalized through writing of both recognized at the notary´s office of Almada, in the sheets 34 to 36 of the several writings book nº 170-M (Cfr.Doc nº7 fully reproduced)

17º
Such alienation by the Defendants here came subsequently to be subject to final registration in the competent Conservatory of Registry Office, as registral presentation, made at 22/10/04 ​​in favor of Patricia Antunes Mamede, single, adult, resident at Rua Bento Jesus Caraça, no. 6, 2nd right, Laranjeiro, Almada."

18º
It results from the exposed which, with the sale in favor of mentioned Patrícia Antunes Mamede, was definitively not fulfilled the contract which has been celebrated with the author, not being possible to obtain the specific execution of promise contract in the way in which the new owner will be third in good-faith.

19º
The 2nd defendant, actual wife of 1st defendant, intervened, also, in the sale of the property made to Patrícia Antunes Mamede.

20º
The 2nd defendant also knew that she also previously authorized the sale of the property to the author here, which, as her husband, here 1st defendant, promised the sale.

21º
Under the article nº 441º of Civil Code, all amount delivered by the buyer to the person who sold it, presumed that has character.

22º
So, being the price paid by the author (as buyer) to the defendant, the character of sign, has the faculty of demanding twice of what used, which is € 59.850.75x2= € 119.701.50

23º
To this amount also increases the value used by the author with repairs, corresponding the repairs needed to restore to the property housing conditions, which were at his cost conducted under article nº 216 Civil Code.

24º
The repairs conducted by the author, when he was owner legally, through definitive possession of title transmitted through brother, are, indeed, in the juridical concept of “needed repairs”, because it was indispensable to return housing conditions.

25º
Such repairs, which should be understood as needed, through which, the author returned housing conditions.

26º
Of the legal way it is understood that the concept of housing repairs needed as repairs and costs performed to ensure minimal maintenance / housing conditions, caused such costs.

27º
Under article number 1273 ex vi of the article 216, both Civil code, the owner of good-faith (as such the owner of bad-faith) as the right to be compensated, being calculated his compensation in the terms of unjust enrichment.

28º
The way the legislator tried to obtain is to avoid illegal enrichment from the owner of the thing at the expenses of it´s owner, being through direct effect of repairs with costs of the author, the property saw increased it´s value more than it costs, which is, € 8.898.

29º
Effectively, the defendant cannot benefit from the patently works in the property that were made and fully borne by the author, since this would lead to an enrichment at the expense of impoverishment as provided in the article 473 Civil Code.

30º
Moreover, the property having been - as argued above - sold by the defendant to a third party, which was established in its meeting held in good faith, is no longer possibleto proceed to the survey of any of the improvements, and indeed sure would not be configurable to raise the paintings throughout the property, or raise the overhaul of floors, sanitary ware and taps…

31º
In fact, it is a evidence that in the price of the property to Patrícia Antunes Mamede was with absolute certain that due to the aspect of the property, in which, following the repairs, she owned the property with the aspect it was found, with the conditions that only through repairs had been returned at the expenses of the author.

32º
The 2nd defendant is also responsible by the failure of the contract adjusted with the author and for the debt reclaimed under the article 1691 nº1 a) of the Civil Code, due to her consent to the promised achievement and with agreement through contract, intervened when the property had new owner, violating the contract and permission.

32º
So, the action should be judged and the defendants condemned in the request.

33º
Preliminary to this action, was decreed the arrest of the property at the Urbanização Cerro Azul lot 53, parish of Quelfes, Olhão county, measure that happened at the 3rd Court of Seixal county under process nº6420/04.4TBSXL

Terms which should the action be judged by proved being the defendants condemned to pay to the author:

a. € 119.701,50, twice the amount that the author used

b. € 8.989,00 refund of the costs used by the author

c. the interest accrued on amounts above from the date of service and effective until full payment.

alternative, and if so do not understand, should the defendants be ordered to compensate the author of the amount of the price, simple, disbursed by him (€ 59.850,75)
plus the value of the repairs (€ 9.898), where everything plus the interest accrued onamounts above from the date of service and effective until full payment.

it nevertheless pay the costs of this litigation.

board: seven copies legal documents and

value: € 129.599,50

Sentence received for the above
Judicial circle of Almada

Ordinary Process Action

Nº3841/05.9TBSXL

2nd Civil Court – Seixal

I

Report

António de Sousa Amaral, divorced, resident at Quinta da Mata, nº4, 3rd left, Corroios, started the present declarative action, of condemnation, under form of ordinary process, against:

Gonçalo Sousa Amaral and Alexandra Sofia de Sousa Manjual, married, residente at Urbanização Cerro Azul, lot 53, Olhão.

Invokes for both, essentially, that defendant Gonçalo, together with his wife, Isabel Basílio, celebrated with Caixa Geral de Depósitos (CGD) a mutual contract with mortgage, to achieve the property at the Ferreira de Castro street, lot F, 11º, Miratejo.

Because those who signed such contract have not fulfilled the benefits which they agreed, The CGD started against them, executive action. At the pendency of such action, Plaintiff and defendant celebrated promise-contract of buying and selling of mortgaged property, being the price correspondent to the amount through CGD and to be paid to CGD. Such promise-contract was authorized by defendant Alexandra.

In compliance of agreement the plaintiff proceeded to full payment reclaimed by CGD - € 59.850,75 – in the sequence of which was extinct the mentioned executive action and granted the distrate of mortgage

The plaintiff received from the defendant the keys of property and, due to deterioration and without the minimal housing conditions, repairs were carried which had the cost of € 8.898,00.

Judicial circle of Almada

Previously, defendant 1, authorized by defendant 2, proceeded to the sale of property to a 3rd person, incurring in a definitive failure of promise-contract celebrated.

It ends the request of condemnation of RR. In twice the payment of the amount delivered - € 119.701,50 – and the amount used with repairs.

When cited, both defendants contested, invoking, the nullify of promise-contract celebrated by defendants wife not allowed consent for it´s celebration. Such nullify of contract origins the obligation of restoring everything that has been used, which is, the amount of € 59.850,75.

Also contests the facts invoked by the plaintiff.

This presented replica, in which he reaffirms having the defendants woman authorized the deal. It also asks the condemnation of both defendants as litigants of bad-faith which invokes facts which they know contrary to the truth.

It has proceeded to the purification of the process in which was judged unfounded the exception of the nullify of promise-contract celebrated between Plaintiff and Defendant and appreciated the request of condemnation of both defendants, as litigants of bad-faith.

It was selected the substance of fact presented with relevance for the cause´s decision.

The injunction is still valid.

These are the next issues to be decided:

a) celebrated contract;

b) breach of contract;

Judicial circle of Almada

c) of compensation for improvements

II

Validity

A) of fact

From the evidence produced resulted these facts:

1 – the autonomous fraction designated by letters “AX”, corresponds to 11º floor, letter “A”, with storage in the basement of urban building in horizontal property regime, located at Ferreira de Castro street, nº9, Miratejo, registered in favor of Defendant Gonçalo de Sousa Amaral and Isabel Maria Costa Basílio Amaral, married in regime of communion of acquired – al.A)

2 – about the fraction described in A) was constituted voluntary mortgage in favor of CGD to ensure the loan of € 13.567,30, annual interest until 32,5%, expenditure of € 542,69, maximum amount assured of € 82.361,65 – al.B)

3 – in the sphere of ordinary execution which occurred in terms under the Nº 536/96, from the 2nd civil court, was registered in 17/2/99 pawn, carried in 19/11/98, to ensure the guarantee of € 61.039,87, in favor of CGD – al.C);

4 – in the pendency of execution mentioned in C), between plaintiff and defendant, in the quality of the divorcee, was adjusted in 9/4/02, which, by sentence told in the records of divorce, was decreed the divorce and dissolved the marriage between the defendant and Isabel Maria Amaral, adjusting the share of property described in A) which would be granted to R. granting that irrevocable power of attorney, allowing the fraction to be sold to a third, declaring that the Plaintiff promises to sell to defendant which declares to receive the fraction ,identified in A), by the value which adjusted with CGD to extinct the mentioned execution in C) and grants the distrate of mortgage, expiring the contract in case of not reached agreement with that entity, forcing R to restore to A. the amounts, which, due to price costs this had used in CGD – al.D);

Judicial circle of Almada

In the day 23/10/02, R. and Maria dos Anjos Batista, as procurator of Isabel Maria Basílio, adjusted the share of common goods of the couple, staying with fraction described in A) on which are the charges mentioned in B) and C), assigned to R. – al.E);

In the day 29/11/02, R. declared constitute his procurator A. to grant the notary´s contract of sold, receiving the adjusted price, of the fraction described in A), granted him powers to sell the property, free of onus or charges and for the price and conditions that he better understands, granted in name and representation of the principal and make business with himself, which could not be revoked by death or disqualification of the principal and being free of accountability – al.F);

Through written dated from 17/10/02, to defendant Alexandra Sofia de Sousa Manjua Leal declared authorize to defendant Amaral. to sell, receiving the adjusted price, of autonomous fraction written in A), authorizing yet the request of registrations documents or it´s canceling that showed needed – al.G);

In 23/04/02, The plaintiff made the deposit of € 59.850,75 for credit of account nº 0697515065730, of CGD, belonging to defendant, for payment of the amount reclaimed at the mentioned execution in C) – al. H);

As consequence of mentioned payment in H), CGD granted the distrate of mortgage and execution extinct – al.I);

The Defendants. Gonçalo Amaral e Alexandra Leal married in 6/7/02, without antenuptial convention – al.J);

The defendat Gonçalo Amaral delivered the keys to thr plaintiff. the keys of fraction mentioned in A) – al.K);

In the day 27/4/04, at the 2nd notary´s office of Almada, the defendants declared sold to Patrícia Antunes Mamede, by the price of € 80.000,00 which declared received, the autonomous fraction described in A), accepting this the sold – al.L);

Judicial Circle of Almada

The property about the autonomous fraction described in A, can be found registered in favor of Patrícia Antunes Mamede since 7/7/2004 – al.M);

After the delivery of the autonomous fraction mentioned in K), Plaintiff now has used the property as if it was his own – art.2º;

And with knowledge of defendants. – art.3º;

Without the opposition of these or others – art.4º;

When the delivery of autonomous fraction mentioned in K), the same showed damages at the wall´s paint, floor, dishes and kitchen´s plumbing and bathroom – art.5º;

A spent € 91,74 in electrical stuff – art.6º;

And spent € 149,24 in locks, door handles and a new door – art.7º;

And spent € 687,66 in treatment and recovery of all floors – art.8º;

And spent € 239,78 in painting the rooms of the fraction – art.9º;

And spent € 257,00 in replacing the sanitarium / bathroom, taps and toilet lid – art.10º;

And spent € 266,25 in several material, drugstore products related with works mentioned in articles 6º to 10º - art.11º;

The materials and works described in articles 6º to 10º cannot be removed without causing damages in the fraction – art.12º;

And it´s removal removes to the autonomous fraction the correspondent value of the same – art.13º;

Judicial circle of Almada

B) of right

Checked the facts of the described form, it matters now to proceed with application of right

a) of contract celebrated

between the plaintiff and defendants. Was celebrated a promise-contract, which is a contract in which both parts are forced, at a later date, celebrate another contract. Once that the promised contract (the one in which both had been forced to celebrate) is buying and selling of property, which the first had been forced to buy and the second to sell, we are in presence of celebration of a bilateral, of buy / sell.

Through compliance by the formalism provided in the law – art.410º, of Civil Code, the mentioned contract is valid.

In agreement with the art. 405º, nº1, of Civil Code, which establishes the principle of contractual freedom, the parts have the faculty of including in the contracts the clauses they want.

Therefore, in the case, was established the price and with was agreed the immediate payment of it. This is an obligation from the contract, borne by the promisor-buyer, here A, which the same fulfilled.

The art.441º, establishes that, in the promise-contract and selling, presumes that it has character of all the amount delivered by the promisor-buyer to promisor-seller, although the title of anticipation or principle of payment of price.

What we have here is a presumption which, could be rebutted by the part the manifests interest. In the case, although the defendants had invoked that it was no intention of the involved to attribute the nature of signal to the amount delivered by the plaintiff , not demonstrating such fact (whose evidence, in general terms, provided in the art. 342º, of Civil Code, suited them).

Judicial Circle of Almada

Therefore, it prevails the presumption provided in art. 441º, in other words, imposes the conclusion which the totality of amount delivered by plaintiff, in function of celebration of promise-contract, the title of signal, stressing, to this purpose, that this could be of inferior value, equal or superior to the price agreed, not losing by any of those reasons its signal nature).

b) the breach of contract

according result of notion itself of any contract, its celebration implies the birth of rights and duties for each parts.

Effectively, in terms of art. 406º, of Civil Code, the contract should be punctuallyfulfilled, which means that it should not only fulfilled in the precise terms in which was celebrated, but also should be fulfilled in the moment agreed.

In the concrete case being the promisor-buyer paid the agreed signal, the main obligations, of both were to do the promised contract: Plaintiff to buy from the defendants the property and these to sell the same property.

However, the defendants have not fulfilled the contract, they sold the property, to a third person.

The non compliance of obligations may take one of the three ways, the lack of definitive fulfillment, the delay and defective performance.

In the present case there is no doubt that we are in presence of a situation of definitive failure, through fact attributable to defendants. The fulfillment of contract is no longer possible.

Judicial circle of Almada

So, in the promise-contract, the signal assumes not only a function of insurance guarantee of fulfillment but also the nature of element determine the value of compensation of contract celebrated.

c) Compensation for improvements

Although the signal, single or double, as foreseen in nº2, of art. 442º - assumes the nature of compensation in indicated issues, it doesn´t prevent the creditor of demanding another compensation in general terms, if he has fundament for such.

So, in the concrete case, the plaintiff could also asks for the condemnation of the defendants in the payment of the amount he handled, about the repairs.

Let´s see.

When the realization of promised-contract, the defendants delivered the key to the plaintiff. which used it freely, as if it was his own, with the knowledge and without their opposition.

Became the sole possession of the property, which did it publicly, with good faith and peaceful way – arts. 1251º, 1260º, 1261º and 1262º, all from Civil code.

By assuming the possession of the autonomous fraction this showed damages in the walls, floor dishes and pipes of kitchen and bathroom, and the plaintiff performed the repairs.

The repairs assumes the category of needed as appears defined in art.216º, nº3, of Civil code. In agreement with the art. 1273º, nº1, of same diploma, the owner of good faith has the right of being compensated due to the repairs.

Proving itself, as it has been proved, that the cost amounted to € 8.898,00, it assists the plaintiff the right of being compensated of such amount.

III

Decision

Judicial circle of Almada

Through the expose, judges the presented action, proved and, in consequence, condemn the defendants to:

a) Pay to the plaintiff the amount of € 119.701,50, due to the value of twice signal in the promised-contract celebrated by both parts;

b) Pay to the plaintiff the amount of € 8.898,00, due to the value of improvements performed by the plaintiff in the building, written at the same promise-contract.

Expenses being paid by the defendants

Register and notify

Seixal, August 25th 2009

Signature of :

----------------------------------

Judicial circle of Almada

c) To pay to AA. legal fees, about amounts indicatedin points a) and b), since the date of citation and until full fulfillment;

d) In the payment of penalty, corresponding to 12 UC, by litigation in bad faith

(…).

The decision is integrant part of sentence given in these proceedings.

To be noted in its right place.

Notify

Seixal, November 13th 2009


Signature:


(Carla Oliveira Alves)


Judicial Circle of Almada

Conclusion: 30 / 09 2009

CLS

A. requested, to pages 266, following correction of clerical errors contained in the known sentence:
the omission about the condemnation request of the defendants, payment of legal fees;

the omission about the condemnation request of the defendants as litigants of bad faith, which appears at the report of same sentence whose issue was appreciated in the dispatch, which, effectively didn’t happened.

Notified, the contrary part made no comment.

Appreciation is requested.

There are no doubts that the reason assists AA.

Effectively, the Court didn’t answered the request of fees made, as a mistake, only defended the first petition presented – which such request is not there – and not to the one presented in the sequence about invitation of thejudge.

About the second issue, it is also shown that the request of litigation with bad faith wasn’t appreciated.

Actually, it is a mistake of the Court, for which has no justification.

The art.669º, nº2. point B of Civil Code shows, that any of the parts can request the review of sentence when:«appears in the process documents or any elements, which, implies necessarily decision different from the decision presented and the judge, through mistake, have not taken it in consideration».

It is precisely the situation in appreciation, because the judge, as mistake, have not considered the request of fees, contrary to what was told in the report, wasn´t presented decision about condemnation request of the defendants as litigants of bad faith.

So, it proceeds the correction of sentence about such issues, in these terms:

Fees request:

The simple fee, in agreement with the art. 804º, nº1, constitutes the indebted in the obligation of repair damages caused to the creditor. This norm deals with obligation of reimburse the creditor about damages received. The respective compensation doesn’t replace the provision, but increases her.

Therefore the defendants should be condemned not only the payment of debt but also the payment of compensation mentioned in art.804º,nº1, which in terms of art.806º, matches the fees, counting from the day of fees creation – citation date – until full fulfillment.

Litigation of bad faith

Plaintiff requests the condemnation of the defendants payment of fee, by litigation of bad faith.

Judicial Circle of Almada

The artº 456º, nº1, of Civil code, shows, that having litigated with bad faith the part condemned with fee and compensation in favor of contrary part requested.

In the case, the plaintiff only requested the condemnation of the defendants in fee and not compensation in his favor, motive which this could never be allowed.

It seems, in the case, that it is evident the bad faith of the defendants

The truth is, these have perfect knowledge of the contract celebrated and obligations which both parts had, not admitting with that purpose any ignorance or mistake.

What we have here is, both defendants deduced opposition due to lack of ground, altered in relevant form and totally aware of the truth of facts and its judicial consequences.

Their conduct integrates point a), of nº2, of art. 456º, of Civil Code, which establishes precisely that it is litigant of bad faith the person who acts with the described way.

Taking in consideration the circumstances of the case, it is understood as adequate the correspondent fee to 12 UC – art. 102º, point b) of Judicial Expenses Code here applicable.

Decision

(…).

C) Paying to the plaintiff's fees, with legal taxes, about the amounts mentioned in points a) and b), since the date of citation until full fulfillment;

D) Payment of fine, which matches to 12 UC, by litigation of bad faith.

(…):

The decision is full part of sentence told in these proceedings.

To be noted in its right place.

Notify.

Seixal, November 13th 2009


Signature:

(Carla Oliveira Alves)