The Third Panel of the Superior Court of Justice, in the decision of Special Appeal No. 2.124.423/SP, ruled out the liability of a digital bank where an account received sums transferred by a person who believed they were acquiring a vehicle at auction, passing judgment on a quite current issue in today’s society, given that the digital environment is increasingly used for financial or sales transactions.
Finding that he had fallen victim to a scam, the would-be acquirer of an HR-V filed suit, seeking to recover his loss from the bank.
Not having his claim granted either in the First Instance or in the Court of Appeals of the State of São Paulo, he appealed to the Superior Court to review his case, which brings to light two highly regarded values in today’s society: the simplification of access to banking services and fraud prevention.
This is because Brazilians look for financial freedom and for a streamlined, and naturally, preferably electronic, provision of banking services.
In view of this necessity, the National Monetary Council decided, through Resolution No. 4753, of 09/26/2019, to allow a deposit account to be opened through a simplified approval process, provided that the requirements aimed at curbing money laundering and terrorism, as well as the other current rules of the domestic financial system, are met.
This is a step ahead, as it supports an increasingly agile and smooth provision of services, clearing the path for consumers who intend to manage their own assets and financial operations.
Similarly, remote trading, transactions, and purchases through smartphones are increasingly popular in our consumer society.
However, financial management and customer facilities are not provided to a select group, but to society as a whole, which ends up including citizens with hidden agendas or who may, at a given time, run scams on other individuals.
And, in the face of such fraud, the court system is usually sought to hold financial institutions liable, although they had only opened the deposit account to which the amounts were destined in a direct way, that is, without any further measures to prevent any failure.
Such claim, however, is not only at odds with the Consumer Protection Code itself, which establishes the absence of failure to provide services as an exclusion from strict liability, it encourages customers to be less and less careful with scams and fraud, since, in theory, they would have the subterfuge of seeking compensation from a creditworthy institution.
In this sense, the decision of the Superior Court of Justice is accurate, as it both reiterated the need to comply with regulations and use security mechanisms to check and validate the qualification of holders while opening accounts, and did not unduly hold the institution liable, as it did not find any failure of the institution in the required procedures.
Autor: Ana Francisca De Martino • email: ana.carvalho@ernestoborges.com.br
