In a recent award of the Fourth Panel, the Superior Court of Justice (STJ) has reiterated a core guideline in the field of civil liability and consumer protection: the old age of the victim, by itself, cannot be raised to support moral damage or ground its aggravation in bank fraud cases.
The case in question, which involved a Financial Institution and a retired woman who has fallen victim to the fraudulent contracting of a payroll deduction loan, wound up reasserting a position already outlined in previous precedents, but which still sparks off dissent in trials by judge panels, especially when taking into consideration the principle of human dignity, and the special protection granted to the elderly.
The plaintiff had amounts unduly deducted from her social security benefits as a result of a fraudulent contract, the forgery of which has been proven by graphotechnical expertise. The lower court held that the contractual relationship was null and void, and ordered the restitution of twice the discounted amounts, based on Article 42, Sole Paragraph, of the Consumer Protection Code.
However, the claim for moral damages was dismissed. The key argument was that the plaintiff used the unlawfully credited amount (BRL 4,582.15), and that the inconveniences resulting from the situation did not constitute a violation of personal rights.
This conclusion was upheld by the Court of Appeals of São Paulo (TJSP), which ruled out the existence of any relevant psychological distress.
In the decision of the Special Appeal filed by the plaintiff, Justice Nancy Andrighi filed a disagreement, supporting the existence of presumed moral damage. However, the Justice Moura Ribeiro’s opinion prevailed that the condition of elderly is not, by itself, a factor for eligibility to moral damages, nor does it authorize its increase. The Panel understood that, in the absence of effective proof of psychic distress, embarrassment or undue exposure, there are no compensable moral damages.
The most relevant aspect of the decision is the express rejection of the idea that the victim’s age alone can justify the presumption of moral damage. The position of STJ is to preserve the objectivity of the criteria for grounding nonpecuniary loss, avoiding the so-called “automatic compensation.”
Although the Elderly Statute (Law 10741/2003) recognizes the elderly as a hyper-vulnerable party in consumer relations, the Superior Court pointed out that such a condition does not remove the burden of demonstrating actual moral damage. In other words, there is no absolute presumption of moral distress in favor of elderly victims of fraud, even if they involve amounts discounted from social security benefits.
The precedent under review is meaningful because it represents the point of tension between two fundamental values of the Brazilian legal system: legal certainty and protection of the dignity of the human person.
By ruling out automatic award of moral damages, STJ helps restrain the trivialization of the institute of moral damage. The ruling of the Fourth Panel reaffirms the guideline according to which the substantiation of moral damage requires concrete proof of non-pecuniary loss, even if the case involves fraud against the elderly and discounts on retirement benefits. The decision signals a cautious stance by STJ regarding the automatic recognition of civil liability for damages.
For Law professionals, the decision implies a reflection: how to balance the practice of civil redress with the remedial social function of the Law in contexts of structural vulnerability? The answer will increasingly demand sensibility while reviewing each specific case, without taking for granted the limits of caselaw and current rule of law.
Available in: https://www.migalhas.com.br/depeso/428537/stj-idoso-nao-presume-dano-moral-em-contratacao-fraudulenta
Autor: Daniel Feitosa Naruto • email: daniel.naruto@ernestoborges.com.br • Tel.: +55 67 3389 0123
