Clipping of news on Brazilian Culture, Law and Citizenship
03/23/2016
This article was translated by an automatic translation system, and was therefore not reviewed by people.
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The Fourth Chamber of the Superior Court of Justice (STJ) determined that, in the inserted undue charge on credit card, proof of immaterial damages is required - registration in delinquent registration, protest or negative publicity to the community - so that you can apply liability for damages.
The board understood, following the vote of the Minister Isabel Gallotti, the improper registration in delinquent registration sets moral damage in re ipsa. This is because the publicity resulting from such discreditable entries reaches personality rights (image and honor), there is no need to question on the subjective characteristics of the injured party to impose the obligation to indemnify.
On the other hand, the mere receipt of credit card bill, which included improper collection, not an offense personality of law, not causing, therefore, by itself, moral damage goal.
With this understanding, the college dismissed claim for compensation made by a consumer who had his credit card misused, generating a debt to the company Forever Living Products Brazil Ltda., Amounting to R $ 835.99 per service or product which was not signed by him.
The case
The consumer filed a compensation lawsuit against Forever Living because of the collection by credit card bill, the amount of R $ 835.99 per service or product for him not hired. The credit card was provided by BMG, and the invoice amount at maturity was automatically deducted from the customer's account.
He claimed he received the invoice with the improper collection and looking for the bank was informed that the responsibility would be the company. Not knowing where to turn, let the time pass.
Months after she got the phone company, which refused to return the money, which, according to the defense, caused him enormous problems, being retired and elderly. So, he asked in return double the amount unduly charged and compensation for moral damages.
illegitimacy passive
The company maintained its passive illegitimacy, since the grant, issuance and authorization of the use of the card, the supply of equipment for the use of the card, the approval of the purchase and its value and the collection were made by the card-issuing bank.
also said it sold goods to those performed with the card, and performs thousands of daily transactions and thus did not make improper collection, merely to accept payment by credit card.
As for the moral damage, he said this did not occur, since there was no registration of the user name defaulter registration, protest or any form of advertising or disclosure to third parties of the collection.
Service failure
The first degree verdict accepted the claim for compensation on the grounds that the company is not discharged to present evidence which could invalidate the misappropriation included in the consumer's credit card bill.
The Court of Rio de Janeiro (TJRJ) considered that the misappropriation through the credit card bill was constituted in accident consumption, in order to characterize the joint and objective responsibility of all members of the chain of events.
Understood set the moral damage by offensive fact of charging non-existent debt on card bill. However, he ruled that there was no evidence in the record that the consumer has repaid the value of purchases, not entitled to restitution for property damage.
damage goal
In his opinion, the Gallotti minister stressed that if it was up to the consumer as the only compensation for damage. It happens that has not been shown to pay only the undue collection.
In addition, the Minister stressed that this is not card issued without the consumer's request, as also not claimed that the company or the card issuing bank has insisted on charging in the following months, when informed of the challenge to that release.
"I think the trivialization of moral damage in case of mere misappropriation without repercussion on the right of personality, increase the cost of economic activity, which would burden ultimately, the consumer himself," the rapporteur said.
Source: STJ
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This article was translated by an automatic translation system, and was therefore not reviewed by people.