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On July 28, 2000, the 2nd Section of the Superior Court of Justice approved the well-known Precedent 239 (“The right to compulsory adjudication is not conditioned on the registration of the purchase and sale commitment with the property registry”). Ten rulings were indicated as relevant precedents for this understanding, handed down between 1989 and 1999. A close analysis of the rulings, the text of the statement and common cases on the subject seems to recommend, almost 20 years after its publication, at least two reservations in the summary .
The oldest precedent indicated for the formation of the summary is the most substantial in relation to the arguments raised, and can be taken as illustrative of the others [1] . Originally, the defendant “filed a compulsory adjudication action” against the appellant, claiming “to have acquired from the defendants […] property, the price having been paid in full, […], and they refused to grant the deed”. The request was upheld, and the sentence was upheld by the Court of Justice of the Federal District.
In the special appeal, the appellants B2B Lead claimed that the ruling had denied validity to article 22 of Decree-Law 58/37. This rule provides that “contracts, without a repentance clause, of purchase and sale commitment […], provided that, entered at any time, attribute to the commitments a real right opposable to third parties, and confer on them the right of compulsory adjudication under the terms of articles 16 of this law” (emphasis added). Contrary to predictions, the contract had not been registered in the property registry.
The rapporteur's vote states that the prevailing jurisprudence at the time, including at the Federal Supreme Court, was that registration would be mandatory for compulsory adjudication. The rapporteur, however, understood that “the promise of purchase and sale has as its object a facere [emphasis in the original], it constitutes a bond that translates into a personal right. Its compliance is not justified depending on the entry of the title in the Real Estate Registry”.
For the rapporteur, in short, the reference in article 22 of the decree-law to the registration of the promise to buy and sell “at any time” must be interpreted as a requirement for the constitution of a “real right opposable to third parties”. The absence of registration, therefore, would only result in the non-constitution of real rights; However, if the right to be exercised vis-à-vis the other contracting party was maintained, there would be a personal right to the obligation to do something consistent with the granting of the public deed of purchase and sale , thus allowing, by sentence, the ownership of the thing to be transferred.
All other precedents indicated as a basis for Precedent 239 are substantially linked to the same argument. Even in a ruling ten years after the first, it was stated that “the right to adjudication is of a personal nature, restricted to contractors, and is not subject to obligatio faciendi on registration in the property registry” [2] .
Thus, here is the central thesis extracted from the precedents that gave rise to Precedent 239: (i) being a personal right, the award will be enforceable between the promising buyer and the promising seller; (ii) being a real right, the award will also be enforceable by the promising buyer against third parties.
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發表於 2024-3-16 14:14:40