O instituto da exceção de não cumprimento do contrato no arrendamento urbano

Abstract

The exception of non-compliance of the contract is one of the institutes legally provided in our Civil Code, as a means of defense that allows, in the case of an incapacity to fulfill an obligation by one of the parties to a contract, that the counterparty may also could not fulfill its obligation until the first obligation is fulfilled. The problem under study is related to the exercise of this institute under the scope of urban lease agreement, more specifically as a means of protection exercised by the tenant against the landlord/owner. The owner also in specific situations has the possibility to invoke the exception, through the resolution of the contract as provided for in art. 1083º no. 3 and 4 of the CC, situations in which the maintenance of the lease agreement is not required, as well as the suspension of contractual execution. Through a deep analysis of the most varied national legal doctrine and jurisprudence, we can conclude that the institute in question may have very different situations of application in the scope of urban leasing. In other words, the exception of non-compliance when is exercised by the lessee during the execution of the contract allows him to fail with his main obligation which is to pay the rent until the landlord also fulfills his essential obligations which is to deliver the property and ensure his enjoyment for the purposes to which it is intended. Thus, a brief analysis and comparison of the exception with the right of retention is essential, an institute that, under the general terms of art. 754º CC., allows the tenant to refuse to give back/refund the leased property after the end of the contract. Finally, despite the similarities between the two legal institutes, we can conclude that their overlap could never occur, and the lessee cannot choose one over the other. Regard to its coexistence, we can conclude that it is not feasible for the tenant to invoke both files simultaneously.

Date of Award	29 Jul 2020
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	José Carlos Brandão Proença (Supervisor)