Gabarito Comentado 2ª Fase XXV Exame de Ordem – Direito Civil

Gabarito Comentado 2ª Fase XXV Exame de Ordem – Direito Civil

2018-06-11T19:43:53+00:00 Por |Exame de Ordem 2ª Fase|51 Comentários

ORDEM DOS ADVOGADOS DO BRASIL XXV EXAME DE ORDEM UNIFICADO
PROVA PRÁTICO-PROFISSIONAL Aplicada em 10/06/2018    ÁREA: DIREITO CIVIL

Enunciado

Em uma determinada ação indenizatória que tramita na capital do Rio de Janeiro, o promitente comprador de um
imóvel, Serafim, pleiteia da promitente vendedora, Incorporadora X, sua condenação ao pagamento de quantias
indenizatórias a título de (i) lucros cessantes em razão da demora exacerbada na entrega da unidade imobiliária e (ii)
danos morais. Todas as provas pertinentes e relevantes dos fatos constitutivos do direito do autor foram carreadas
nos autos.
Na contestação, a ré suscitou preliminar de ilegitimidade passiva, apontando como devedora de eventual
indenização a sociedade Construtora Y contratada para a execução da obra. Alegou, no mérito, o descabimento de
danos morais por mero inadimplemento contratual e, ainda, aduziu que a situação casuística não demonstrou a
ocorrência dos lucros cessantes alegados pelo autor.
O juízo de primeira instância, transcorridos regularmente os atos processuais sob o rito comum, acolheu a preliminar
de ilegitimidade passiva.
Da sentença proferida já à luz da vigência do CPC/15, o autor interpôs recurso de apelação, mas o acórdão no
Tribunal de Justiça correspondente manteve integralmente a decisão pelos seus próprios fundamentos, sem motivar
específica e casuisticamente a decisão.
O autor, diante disso, opôs embargos de declaração por entender que havia omissão no Acórdão, para préquestionar
a violação de norma federal aplicável ao caso em tela. No julgamento dos embargos declaratórios,
embora tenha enfrentado os dispositivos legais aplicáveis à espécie, o Tribunal negou provimento ao recurso e
também aplicou a multa prevista na lei para a hipótese de embargos meramente protelatórios.
Na qualidade de advogado(a) de Serafim, indique o meio processual adequado para a tutela integral do seu direito
em face do acórdão do Tribunal, elaborando a peça processual cabível no caso, excluindo-se a hipótese de novos
embargos de declaração, indicando os seus requisitos e fundamentos nos termos da legislação vigente. (Valor: 5,00)
Obs.: a peça deve abranger todos os fundamentos de Direito que possam ser utilizados para dar respaldo à
pretensão. A simples menção ou transcrição do dispositivo legal não confere pontuação.

Curso Online OAB

Gabarito Comentado

A medida cabível para Serafim, em seu processo, é a interposição do Recurso Especial para o STJ, cujas razões
recursais devem rechaçar a ilegitimidade passiva da incorporadora imobiliária, visto que é ela responsável
solidária pelos danos ocasionados, na forma do Art. 25, § 1º, do Código de Defesa do Consumidor, do Art. 942 do
Código Civil ou do Art. 30 da Lei nº 4.591/64. Além disso, o examinando deve abordar a prática do ilícito
contratual e os danos sofridos. Ao final, o pedido recursal deve ser no sentido de obter a anulação do acórdão em
razão da falta de fundamentação específica e, caso o STJ entenda que a invalidação será excessivamente
prejudicial ao recorrente, deve ser pedida reforma integral do julgado, com base no Art. 282, § 2º, do CPC.
Em relação à multa aplicada em razão do entendimento do Tribunal (embargos protelatórios), esta também deve
ser rechaçada pelo examinando, por se tratar de recurso com finalidade de pre-questionamento, o que resulta na
inaplicabilidade do Art. 1026, § 2º, do CPC/15 e na violação ao enunciado de Súmula de Jurisprudência
predominante do STJ (Súmula 98)

Fonte: FGV

Sobre o Autor:

51 Comentários

  1. furtdso linopv 19/10/2018 em 00:39

    Wonderful website you have here but I was curious if you knew of any message boards that cover the same topics discussed in this article? I’d really like to be a part of community where I can get feedback from other knowledgeable people that share the same interest. If you have any suggestions, please let me know. Thank you!

  2. Marcella 22/10/2018 em 08:51

    By examining up details that could be current on these websites, you
    might maybe have the ability to effortlessly determine a superb website from your remainder.

  3. uvufevuy 29/10/2018 em 05:16

    Toxaemia, nfz.oann.blogcursoceijur.com.br.eka.js encourages services explaining vibration, paralysis propecia pills cost, lightheadedness; saccades electromechanical members.

  4. golden goose 14/11/2018 em 10:31

    I would like to voice my admiration for your kind-heartedness supporting those people who require help on this particular concept. Your real commitment to passing the solution across appeared to be definitely powerful and has specifically helped women much like me to realize their aims. Your personal invaluable useful information signifies a lot to me and additionally to my office workers. Best wishes; from all of us.

  5. kevin durant shoes 14/11/2018 em 20:36

    I and also my guys appeared to be studying the excellent tips and hints on the website and so all of a sudden developed a horrible feeling I had not thanked the website owner for them. The boys were consequently excited to study all of them and have now absolutely been taking pleasure in them. I appreciate you for getting indeed considerate and then for obtaining varieties of extraordinary ideas millions of individuals are really wanting to understand about. My honest regret for not saying thanks to sooner.

  6. adidas ultra boost uncaged 14/11/2018 em 21:34

    I would like to get across my admiration for your generosity giving support to those individuals that absolutely need guidance on this important area of interest. Your special dedication to passing the message all around had been really interesting and have really permitted ladies like me to reach their dreams. This invaluable guideline implies a whole lot a person like me and even further to my colleagues. Best wishes; from each one of us.

  7. chrome hearts 15/11/2018 em 07:11

    I truly wanted to develop a note so as to express gratitude to you for these stunning tactics you are giving on this site. My rather long internet research has finally been paid with beneficial facts and techniques to exchange with my great friends. I ‘d believe that many of us visitors are really lucky to be in a good community with very many brilliant professionals with beneficial tips. I feel truly grateful to have encountered the website page and look forward to some more awesome moments reading here. Thank you once again for all the details.

  8. yeezy boost 15/11/2018 em 19:09

    I must express my thanks to this writer for rescuing me from this setting. Just after surfing throughout the the web and seeing recommendations which were not helpful, I believed my life was gone. Living minus the strategies to the issues you’ve solved through your main article content is a serious case, as well as the kind that would have in a wrong way damaged my career if I hadn’t encountered your blog post. Your own personal talents and kindness in maneuvering the whole lot was important. I’m not sure what I would’ve done if I hadn’t come upon such a stuff like this. I’m able to now look forward to my future. Thanks for your time so much for your high quality and effective guide. I will not be reluctant to recommend your web sites to any individual who will need guide on this area.

  9. paul george shoes 16/11/2018 em 03:03

    I wish to show some thanks to this writer for rescuing me from this type of scenario. Right after checking throughout the internet and meeting methods that were not pleasant, I figured my entire life was gone. Existing minus the solutions to the difficulties you’ve sorted out through your main posting is a serious case, as well as those which could have negatively damaged my career if I had not noticed your blog post. Your personal talents and kindness in maneuvering almost everything was very useful. I’m not sure what I would’ve done if I hadn’t come across such a stuff like this. I can at this moment look forward to my future. Thanks so much for the skilled and amazing help. I will not be reluctant to propose your web blog to anyone who would like recommendations about this subject matter.

  10. kyrie 3 16/11/2018 em 15:17

    I have to express my thanks to this writer just for rescuing me from this particular instance. As a result of surfing around throughout the the net and obtaining tips which are not productive, I assumed my entire life was done. Living without the answers to the difficulties you have sorted out through the short article is a crucial case, and those that could have in a negative way damaged my career if I hadn’t noticed your blog. The understanding and kindness in handling the whole thing was very helpful. I don’t know what I would’ve done if I had not come upon such a thing like this. I’m able to at this time look forward to my future. Thanks a lot very much for your high quality and sensible help. I won’t think twice to endorse your site to any person who would like assistance about this subject matter.

  11. nike air max 16/11/2018 em 23:03

    Thank you a lot for giving everyone an exceptionally splendid opportunity to discover important secrets from this blog. It really is very enjoyable plus jam-packed with fun for me personally and my office colleagues to search your blog at a minimum thrice in one week to learn the fresh guidance you have got. And definitely, I’m just actually fascinated considering the sensational inspiring ideas you serve. Certain two areas in this post are in fact the most efficient we have had.

  12. yeezys 17/11/2018 em 09:01

    I simply wanted to compose a note to be able to say thanks to you for these stunning ways you are placing at this website. My considerable internet look up has at the end of the day been paid with professional insight to share with my relatives. I ‘d tell you that many of us readers are unequivocally fortunate to be in a magnificent site with so many wonderful professionals with beneficial plans. I feel extremely lucky to have come across the weblog and look forward to so many more pleasurable minutes reading here. Thanks again for all the details.

  13. kobe shoes 17/11/2018 em 19:13

    Thank you for each of your hard work on this web page. My niece enjoys managing investigation and it’s really obvious why. My spouse and i learn all relating to the compelling ways you give sensible tactics via your website and as well encourage participation from others on that matter and our favorite daughter is truly discovering so much. Take advantage of the rest of the new year. You have been performing a glorious job.

  14. I definitely wanted to type a brief note to appreciate you for these amazing tips you are sharing at this site. My long internet investigation has finally been recognized with excellent information to write about with my colleagues. I ‘d claim that we readers are unquestionably fortunate to exist in a good place with many awesome people with great solutions. I feel very fortunate to have encountered the weblog and look forward to plenty of more enjoyable minutes reading here. Thanks again for everything.

  15. air jordan shoes 18/11/2018 em 03:38

    Thank you for each of your work on this web page. Kim take interest in conducting research and it’s simple to grasp why. We all learn all about the compelling medium you make vital tactics through your web blog and therefore cause response from people on that subject matter so my daughter is really understanding a lot. Enjoy the rest of the new year. You are always doing a superb job.

  16. longchamp outlet 19/11/2018 em 01:16

    I simply wanted to thank you so much once again. I do not know the things that I could possibly have carried out in the absence of the concepts documented by you on that theme. It had become a scary setting in my circumstances, but being able to view the expert avenue you processed it took me to cry for contentment. Now i’m thankful for this service and sincerely hope you recognize what a powerful job you have been carrying out educating the others using your web page. More than likely you have never met any of us.

  17. air max 90 19/11/2018 em 11:42

    I precisely needed to say thanks once again. I am not sure what I would’ve gone through in the absence of the type of techniques provided by you about that subject matter. It was actually a very challenging problem for me personally, but spending time with your specialized approach you resolved the issue forced me to cry over gladness. Now i am thankful for the work and hope that you know what a powerful job you are providing training men and women with the aid of a blog. Most likely you’ve never got to know any of us.

  18. vapor max 19/11/2018 em 21:32

    My spouse and i got now fulfilled that Edward could do his research through the entire precious recommendations he got through the weblog. It is now and again perplexing just to continually be offering points which men and women could have been trying to sell. We really recognize we’ve got you to be grateful to for that. These illustrations you’ve made, the easy site navigation, the relationships you can make it easier to engender – it’s many awesome, and it’s facilitating our son in addition to us imagine that this situation is entertaining, and that is tremendously mandatory. Many thanks for the whole thing!

  19. timberland shoes 20/11/2018 em 07:27

    I precisely had to appreciate you yet again. I am not sure the things I would’ve tried without the strategies documented by you concerning my subject matter. It had become a very hard difficulty in my circumstances, but being able to see the very specialised fashion you processed the issue took me to leap over contentment. Now i’m grateful for the advice and in addition wish you realize what an amazing job you happen to be carrying out training many people through your web site. I’m certain you’ve never come across all of us.

  20. birkin bag 20/11/2018 em 18:34

    I wish to convey my admiration for your generosity for visitors who absolutely need help on this important situation. Your special commitment to getting the message all over had been remarkably useful and has consistently allowed ladies just like me to attain their endeavors. Your amazing interesting useful information means a whole lot a person like me and far more to my office workers. Thank you; from everyone of us.

  21. golden goose 21/11/2018 em 01:49

    I’m commenting to make you know what a fabulous discovery my wife’s princess developed viewing the blog. She mastered a lot of issues, including what it’s like to possess a marvelous teaching nature to let others clearly learn about various multifaceted issues. You actually exceeded visitors’ desires. Thank you for imparting these important, trustworthy, revealing and as well as fun tips on that topic to Sandra.

  22. adidas stan smith shoes 21/11/2018 em 14:45

    Thanks a lot for giving everyone a very memorable opportunity to read from this web site. It is often so pleasurable plus full of a great time for me personally and my office mates to search your web site not less than thrice in 7 days to study the fresh things you have. Of course, I am just actually happy considering the striking opinions you serve. Some 2 points in this article are undoubtedly the most suitable we have all had.

  23. yeezy 700 21/11/2018 em 22:29

    I definitely wanted to post a note so as to say thanks to you for all of the amazing items you are posting at this website. My time-consuming internet look up has at the end been rewarded with sensible insight to share with my best friends. I ‘d state that that we site visitors actually are very lucky to live in a fantastic site with so many perfect individuals with useful things. I feel rather grateful to have used the weblog and look forward to tons of more pleasurable minutes reading here. Thank you once more for everything.

  24. nike air force 1 23/11/2018 em 02:31

    Thank you for your entire hard work on this blog. My mum loves conducting investigation and it is easy to understand why. My spouse and i hear all regarding the dynamic means you make great things through this blog and as well cause participation from visitors on that issue while my girl is in fact learning a whole lot. Enjoy the rest of the new year. You have been performing a terrific job.

  25. yeezy boost 23/11/2018 em 15:43

    Thanks for all your work on this blog. Debby loves going through investigations and it’s easy to understand why. A lot of people know all regarding the dynamic means you produce both interesting and useful items via your blog and attract contribution from people about this area of interest while our own simple princess is without a doubt learning a lot. Have fun with the remaining portion of the year. You are always performing a wonderful job.

  26. jordan 6 24/11/2018 em 23:08

    I intended to send you a tiny remark to be able to thank you very much again on your breathtaking strategies you have discussed above. It’s certainly remarkably open-handed with you to convey unhampered exactly what a lot of folks could have distributed for an e book to get some dough on their own, notably seeing that you might well have tried it in the event you wanted. These advice likewise served to provide a fantastic way to fully grasp other people have the same passion just as my very own to figure out more and more related to this problem. I am certain there are millions of more pleasant instances up front for those who go through your site.

  27. nike react 25/11/2018 em 11:43

    I wanted to create you the tiny remark to finally give many thanks over again with your awesome methods you have discussed above. This has been certainly surprisingly open-handed of people like you to present easily what a lot of people could have supplied for an e-book in order to make some money on their own, notably seeing that you might well have done it if you ever wanted. The techniques also acted as a easy way to comprehend most people have the identical passion just like my personal own to grasp a whole lot more in respect of this matter. I believe there are a lot more enjoyable times up front for individuals who read your site.

  28. off white hoodie 25/11/2018 em 20:24

    My spouse and i were satisfied that Edward could conclude his researching through the entire precious recommendations he acquired from your own web pages. It’s not at all simplistic just to always be giving away procedures that the others may have been making money from. Therefore we understand we have got you to thank for that. Most of the illustrations you made, the easy website navigation, the friendships you help engender – it’s got many impressive, and it is making our son and the family recognize that the matter is excellent, and that’s tremendously indispensable. Many thanks for the whole lot!

  29. nike roshe 26/11/2018 em 06:40

    I precisely wished to thank you very much all over again. I am not sure the things that I might have made to happen without the actual opinions provided by you relating to that area. This was a real frightful case in my view, nevertheless coming across the very skilled approach you treated the issue took me to weep for gladness. I am happy for the guidance and then trust you realize what a powerful job you’re providing educating the others via your web blog. I am certain you have never got to know any of us.

  30. adidas crazy explosive 26/11/2018 em 18:18

    I just wanted to write a small message in order to thank you for all the stunning ways you are posting at this site. My long internet investigation has at the end been recognized with sensible facts to exchange with my great friends. I ‘d mention that most of us readers are extremely endowed to dwell in a decent community with very many special individuals with good principles. I feel rather privileged to have come across your entire website page and look forward to so many more fun moments reading here. Thanks again for a lot of things.

  31. longchamp 27/11/2018 em 02:33

    Thank you so much for providing individuals with an extremely spectacular possiblity to read articles and blog posts from this site. It can be so great plus jam-packed with a lot of fun for me personally and my office colleagues to search your site nearly 3 times weekly to learn the fresh items you have got. And lastly, I’m at all times fascinated with the outstanding solutions served by you. Selected 3 tips in this posting are certainly the simplest we’ve had.

  32. adidas yeezy 27/11/2018 em 22:14

    Thank you for every one of your efforts on this blog. Ellie takes pleasure in going through investigations and it’s really obvious why. Most people notice all of the dynamic tactic you present both interesting and useful tips and hints by means of your website and therefore improve response from others about this matter plus my girl is starting to learn a lot. Have fun with the remaining portion of the new year. Your conducting a wonderful job.

  33. adidas yeezy boost 28/11/2018 em 08:23

    Thank you so much for giving everyone a very remarkable possiblity to read in detail from this site. It is usually very pleasurable and also jam-packed with a great time for me personally and my office colleagues to visit the blog at minimum three times in 7 days to find out the latest items you have got. And lastly, I’m just usually satisfied for the terrific pointers you serve. Certain two points in this posting are definitely the best we have all ever had.

  34. caterpillar boots 28/11/2018 em 19:22

    I together with my pals came following the great tips and hints found on your web blog then suddenly I had an awful feeling I had not thanked the website owner for those techniques. The guys are actually as a result excited to read all of them and have in effect in fact been taking pleasure in those things. We appreciate you actually being well kind and for deciding upon such incredible subject matter millions of individuals are really desirous to be informed on. My personal sincere regret for not expressing gratitude to you earlier.

  35. harden shoes 29/11/2018 em 03:53

    My spouse and i felt so thrilled that Peter managed to carry out his investigations from the ideas he came across while using the weblog. It’s not at all simplistic just to happen to be handing out guidance that many many others might have been making money from. And we also keep in mind we have the writer to appreciate for that. Most of the illustrations you’ve made, the straightforward blog navigation, the friendships you can assist to engender – it’s everything fabulous, and it’s really letting our son in addition to us consider that this situation is excellent, and that is seriously pressing. Thank you for all!

  36. michael kors outlet 29/11/2018 em 13:52

    I have to express my admiration for your kindness giving support to those people that have the need for help on in this area. Your personal commitment to passing the message around has been really helpful and have usually made girls like me to realize their targets. This warm and helpful tips and hints can mean so much to me and still more to my mates. Thanks a ton; from everyone of us.

  37. moncler jackets 30/11/2018 em 05:20

    I precisely desired to say thanks yet again. I’m not certain the things that I would’ve followed in the absence of the concepts shown by you over that subject. It was a real challenging issue in my view, however , viewing the specialized approach you dealt with it took me to leap with joy. Now i’m happier for this guidance as well as have high hopes you realize what a great job that you are carrying out instructing some other people all through your blog post. I am certain you have never come across all of us.

  38. birkin bag 30/11/2018 em 16:11

    I would like to point out my gratitude for your kindness for all those that require assistance with this particular theme. Your very own dedication to getting the message all over appeared to be extremely valuable and have truly made regular people like me to achieve their endeavors. Your personal important suggestions entails this much a person like me and even more to my colleagues. Thanks a ton; from everyone of us.

  39. vans outlet 30/11/2018 em 22:42

    I wanted to make a quick note to be able to say thanks to you for some of the amazing tricks you are placing at this website. My considerable internet search has at the end been honored with reliable ideas to write about with my classmates and friends. I ‘d suppose that most of us visitors are undoubtedly lucky to exist in a fantastic network with so many awesome people with very helpful ideas. I feel quite lucky to have discovered your entire webpages and look forward to really more enjoyable times reading here. Thanks a lot once again for all the details.

  40. viagrabs.com 09/12/2018 em 18:13

    what was viagra originally invented for viagrabs.com 20 year olds taking sildenafil.

  41. yeezy shoes 10/12/2018 em 04:45

    I would like to voice my affection for your kindness for people who actually need guidance on that situation. Your very own dedication to passing the solution all-around has been remarkably helpful and has frequently made individuals just like me to arrive at their dreams. Your new important help denotes much to me and additionally to my office workers. Warm regards; from all of us.

  42. cialis for sale 11/12/2018 em 04:22

    cialis and viagra interaction [url=http://cialislet.com]cialis pills[/url] can you take cialis with priligy.

  43. generic viagra brands 12/12/2018 em 23:05

    buy sildenafil online in london [url=http://viagrauga.com/]http://viagrauga.com/[/url] what happened
    when i took sildenafil

  44. generic cialis 14/12/2018 em 07:59

    venta legal de tadalafil
    buy generic cialis
    xanax con tadalafil
    [url=http://cialisle.com/]buy generic cialis[/url]

  45. yeezy 500 blush 15/12/2018 em 12:01

    I precisely needed to appreciate you again. I’m not certain what I would’ve achieved without the type of information discussed by you about such a area of interest. It has been a real depressing scenario for me personally, nevertheless being able to view the well-written strategy you handled it took me to cry with happiness. Now i am grateful for your service and then have high hopes you are aware of a great job you have been accomplishing teaching the others by way of your webpage. Most probably you have never met any of us.

  46. buy cialis 20mg 16/12/2018 em 08:27

    pnpxxgfl tadalafil vitiligo http://cialissom.com buy
    cialis buy cialis 10mg come riconoscere tadalafil falso

  47. ultra boost 3.0 17/12/2018 em 11:13

    Thank you a lot for providing individuals with a very pleasant chance to read articles and blog posts from this web site. It’s usually so pleasurable and jam-packed with a lot of fun for me personally and my office friends to search the blog more than thrice in 7 days to learn the latest guides you have got. And lastly, I’m just certainly astounded with your great guidelines you serve. Some two facts in this post are honestly the most impressive we have all had.

  48. westbrook shoes 17/12/2018 em 22:29

    Thank you so much for giving everyone a very terrific chance to discover important secrets from this web site. It’s usually very nice and as well , stuffed with a lot of fun for me and my office mates to visit your blog the equivalent of three times per week to read through the latest guidance you will have. Of course, I am also actually happy with the spectacular creative ideas you serve. Some 2 facts in this posting are clearly the best we have all had.

  49. Buy Cialis 18/12/2018 em 07:42

    tadalafil et tension artérielle http://genericalis.com è
    piu forte il viagra o tadalafil

  50. silagra online 18/12/2018 em 22:16

    why can’t you drink grapefruit juice with sildenafil
    https://salemeds24.wixsite.com/clomid salemeds24.wixsite.com
    sildenafil to treat altitude sickness
    buy dapoxetine
    herbal sildenafil products

  51. adidas ultra boost uncaged 19/12/2018 em 00:04

    I in addition to my friends have been studying the good information and facts located on your web page and then all of a sudden I got an awful suspicion I never expressed respect to the blog owner for them. All the young men were consequently very interested to see all of them and have in actuality been making the most of these things. Many thanks for turning out to be very considerate and also for opting for variety of beneficial subject areas most people are really needing to understand about. Our own honest apologies for not expressing gratitude to earlier.

Deixar Um Comentário