“>REPLICA “>COMMON SHARE “>a) the check and your endorsement “>Seeing the author, here lies the active illegitimacy then deducted intelligently in doctrine, civil adjective law and factoring regency law. “>That financial field, jurisprudence aligns interestingly being closely watched here: “>Given this understanding, it must be the author Ré on condition that small claims court, the procedural obligation to tell the cause petendi surrounding said check and as would have occurred to his capture on the parallel market, the world of factoring business. “>THE “>With active illegitimacy “>No legal business “>It is regrettable to note in our law, that in defiance of a lawful conduct that should prevail in the litigation, the Defendant made absolute silence as to that part dissertada the home of this Common Share, omitting cowardly to answer the pointed truth. “>ELEMENTS AND NOTES “>MERITS OF MATTER “>Per second “>1.b) Under real truth “>The author postulates its right per common share, since it is still debatable whether or not the cabência counterclaim in tutoring actions, adopting so the guidance given by the case below that say about the very action of filing, “>FINALLY “>Terms under which the whole origin of all that request, waiting for that right now the deserved and necessary “>S.Paulo, December 9, 2003
“>COMMON SHARE……………… DA SILVA, by his lawyer and the prosecutor signed the end, comes respectfully to the presence of Your Excellency, in the records of COMMON SHARE that is moving against private company FACTORING …………… ………………… to provide its reply to the terms of CONTESTATION The defendant insists present as creditor holder of the check No ……….. issued against Banespa Bank S / A in the amount of R $ …….. (…
“>a) the check and your endorsementThe Defendant has said check on pages …. the small claims court n. …. Whereby according to the back of the cartouche is nominal in their favor, however, it was not originally issued nominal and directly to your order. However, stating on the back the signature of the first bearer of the check, it mischaracterizes the endorsement for being the check later filled nominally in favor of the Defendant, forcing this to say the cause petendi that surrounds it and that title would have received that check
“>Seeing the author, here lies the active illegitimacy then deducted intelligently in doctrine, civil adjective law and factoring regency law.“The business of a banker, his actual business does not begin when he uses its own capital; they only start when it uses the capital of others. ”
“>That financial field, jurisprudence aligns interestingly being closely watched here:“Now performing loans, with own means and without raising third-party funds, can not be equated to the specific activities of financial institutions, which consist, as expressed in the legal text, the ‘collection, intermediation or investment of its own funds or terceiros’. The characteristic feature of so-called `financeiras’ is the capture of public resources in general for investments, the results of which are assigned to the respective subscribers” (HC 2555 – Holy Spirit – rapporteur Min Godoy Island -.. Second tee Federal Court
“>Given this understanding, it must be the author Ré on condition that small claims court, the procedural obligation to tell the cause petendi surrounding said check and as would have occurred to his capture on the parallel market, the world of factoring business.(01) Bagehot, cited ROCK CARLOS GUIMARÃES, encyclopedic Directory code Brazilian law, see. 5, p. 314, no.
“>With active illegitimacyThe company Defendant moves for this MM. Judgment, making it manifests with active illegitimacy, the small claims court No. ………. against the author of this common share, presenting itself as a creditor holder of the check n. ………., Banespa Bank S / A, issued by Author blank, with only his signature, delivered as collateral to a third party, not rated, no date of filing, but that appears instructing the initial taking In the lawsuit monitoring the Defendant presents the check filled with the amount of R $. …….. (……….), In which, in his verse, does not contain any signature of the depositor, which somewhat surprising considering their value and rules for deposit bank! In embargoes on misconception and collision with monitorio Case No. ……… filed by the Defendant against the brother of the author, it was said that the cartouche contained a signature on the back without endorsement in favor of the Defendant, which does not Either way, both in the challenge offered to the embargoes that monitoring, as presented in its defense against this common share, the Defendant did not join any material proof of the legal relationship in which the check came to its power, in the case because, of course, a From this false premise, the Defendant intends to charge you relying simply in possession of the check. It does not explain for what reason it is held and, so. Examining the check and it was not disputed by the Defendant, it turns out that the back does not contain the signature of the depositor and do not appear endorsement even for the deposit requirement that can not be replaced by the title of the protest.
“>No legal businessHowever, it is documentary evidence that in date ………………… the author made the deposit of R $. …………… In favor of the Defendant, paying the check with a R $. ………… Until the date of deposit, but still came under pressure to pay more interest, and at his refusal to meet the unreasonable demand, the check was dated by ”
“>It is regrettable to note in our law, that in defiance of a lawful conduct that should prevail in the litigation, the Defendant made absolute silence as to that part dissertada the home of this Common Share, omitting cowardly to answer the pointed truth.This is because of an occurrence of a typical case of what is provided for in Article 186 cc Moreover, it must be said that not only this check, like others, constituted a mere security with the …………………… OLIVEIRA, Author to whom all paid as bank deposits that were required in return promise of checks, return did not happen, but for which payment is materially proved in motion to small claims court but will play in this action pursuant to Articles 396 and 397 of the CPC Given this understanding, if impumha-D as the factoring company, the procedural obligation to tell the small claims court the cause petendi surrounding said check and as would have occurred to his capture on the parallel market.
“>ELEMENTS AND NOTES
“>MERITS OF MATTERNo doubt that the Defendant to evade their responsibility for improper collection should have explained in its defense the regularity of the transaction and for which he received the mentioned check, in order to cope with their active illegitimacy, as in the doctrine of SEMO DE GIORGIO, “There is a diversity of economic function of exchange and check, because this is not credit instrument but essentially a means of payment” (Diritto Foreign Exchange, Milan, Giuffrè, pp. 721-722). So it was for the Defendant to say what he was paid to this check or what was paid to a third party with the same check, displaying the contract for its factoring operation. Nor thrives in favor of the Defendant the date on a check and confirmation of the Author that actually issued, it is not the issuer of the notes spelling ante and post signature, diverging the spelling of the issue in the confrontation with the other manuscripts launched after . It’s true and you can not ignore what is found in Article 13 of the Cheque Act No. 7357, of 02.09.de 1985 that “The obligations assumed on the check are autonomous and independent”, however, despite its autonomy or abstraction, not waiver in any way the need for endorsement for their transfer.
“>Per secondNow it is known that, on check, fit only defenses prescribed by Brazilian Cambiaria Law, art. In this sense there exists no ownership requirement on the check face the lack of endorsement appointed in protest instrument that could lead the author to demand compensation for moral damages in view of the provisions of Article 5, section X of the Federal Constitution 1988 and also for all that is really the Author against the Defendant company, who are not liable to anything. In the present case, although not remained the first alternative offered in defense of embargoes and the reply would remain for consideration “the personal right of the author against the Defendant,” which can not take possession of creditor because obviously mendacious claim would be similar face
“>1.b) Under real truthWithout denying the unconditional validity of the check is a payment order, there is urgent need for their origin is searched for its taxable event, contractually explained his transfer to the Defendant, as well as all periciado your fill in grafotécnico examination and documentoscópico and submitted Alongside this, the author says that this check was issued in white and also does not coincide with the date released later. That both this check as others were paid via bank deposits nominally in favor of the beneficial owner and moneylender WANDERLEY S. OLIVEIRA, and in addition to deposit the exact R $ .6.200,00 (six thousand two hundred reais), another deposits totaled Whatever may be the explanation that this monitoring or common share, that check as other more, were fully paid in principal and accessories, so the author owes nothing to Ré like nothing else due to the moneylender WANDERLEY S. OLIVEIRA. “He that demand for debt already paid, in whole or in part, without the caveat amounts received or borrow more than is due, will be required to pay to the debtor in the first case, double what there charged and in the second,
“>The author postulates its right per common share, since it is still debatable whether or not the cabência counterclaim in tutoring actions, adopting so the guidance given by the case below that say about the very action of filing,“At home to small claims court, inadmite by the presentation of counterclaims by the debtor, not only by the nature of incidental action of the embargo, but also because it is only from the opposition those that made follow the ordinary rite, as can be inferred from the provisions in art. It being understood that the legislation may directly and abruptly change or repeat a legal definition, principle or rule, the courts may also legislate filling an omission or gap in the legal provision, hence by inference, be able to attend to all that the author intended this common share
“>FINALLYThe intention of the author, judicial protection you need, was right under article 1531 of the old Civil Code and, as you can see now in the art. 940 of the present, has not been revoked. In essence and as is the hypothesis tested in this action, that that demand for debt already paid, in whole or in part, without caveat amounts received ……. This is the case of re plus petitur: “Re plus petitur, cum wanted au majorem depart summae, aut King debitae petit, ut decem debeantur, et, petat viginti; vel mars demus fit, in obligatione et totam domum petat “(SILVA, Commentary, 1, 271 and 273, cited by JM Carvalho Santos, the Brazilian Civil Code Interpreted, Library Freitas Bastos, São Paulo, v. XX, 7th. Edition, 1961 The Defendant undoubtedly whatever reason can justify, in that action is monitoring the demand with active illegitimacy of a debt already paid and materially proven to discharge creditor by saying the amount represented by checks and additions mentioned as legal, all amounting R $ .7.922,00 (seven thousand nine hundred twenty-two reais). Therefore, against the Defendant is appropriate application of the provisions of Article 940 of the current Civil Code, to be ordered to pay the Author twice the required amount reaches R $ .15.844,00 (fifteen thousand eight hundred forty-four reais). It is a shame that proceeds applicable to the exorbitant request. The evidence. In the initial protested and requested, but repeated for all clarify the truth, the author REQUIRES the right to produce the evidence as may be necessary, including the personal testimony of the legal representative of the Defendant, failing to confess, witness the hearsay land and out to be enrolled to Article 407 of the time of the Civil Procedure Code, grafotécnica expertise and documentoscópica, crafts banks and public and private offices, joined the new documents, and other more like accounting and tax expertise in business and Ré
“>Terms under which the whole origin of all that request, waiting for that right now the deserved and necessary
“>S.Paulo, December 9, 20031.OAB / SP. 36,657