On 10/15/2024, the Brazilian Superior Court of Justice (STJ) handed down a majority decision in a case that discussed the liability of those involved in a payment dispute, widely known as a chargeback, which refers to the process of disputing a financial transaction, usually involving credit or debit card purchases, when the cardholder does not recognize it.
The chargeback mechanism is designed to protect the consumer from unauthorized charges, fraud, or products/services that do not meet expectations.
Payment instruments play a critical role in the economy that goes beyond the simple function of facilitating transactions. The instruments used in the structure of the Brazilian payment market involved in this case – cards – are responsible for about 4 million transactions per month in the last eighteen months, second only to the number of transactions via pix, according to data published by the Central Bank of Brazil (BCB).
The issue has resulted in a number of legal disputes, given the lack of clarity regarding the rules governing the structure of the Brazilian Payment System (SPB), regulated by the Central Bank of Brazil (BCB), and the roles and responsibilities of the member agents: issuers, cardholders (consumers), accreditation companies, payment intermediaries (payment banners) and commercial entities.
Specifically, in the case submitted for analysis in REsp no. 2.151.735 / SP, a chargeback was initiated in electronic transactions that were not recognized by the holders of the credit cards used, to their detriment. On the basis of an express contractual clause in which the commercial establishment assumes responsibility for the costs arising from the dispute of this type of purchase, the accreditation company stopped passing on the amount relating to these purchases, thus safeguarding the rights of consumers.
However, this contractual position was questioned by the São Paulo State Court of Justice, which led to an appeal to the Supreme Court of Justice, alleging violation of contractual freedom and non-compliance with the definition of the risks of the contract established by the parties themselves (in this case, the shopkeeper and the accreditation company).
In a dissenting vote, Judge Nancy Andrighi considered that the attribution of liability to the merchant, by means of an express clause, was normal, highlighting the role played by the merchant in guaranteeing the security of sales by digital means and expressing concern about the intervention of the judiciary in the contract concluded between the parties in the payment market; however, the vote was rejected by the majority because the other members of the panel considered it abusive to attribute unconditional responsibility for the costs to the merchant.
In this sense, the decision only confirms that the interpretation of payment agreements is not unanimous and therefore requires attention and caution, given the impact that the issue has on the economy as a whole, from growth to inclusion and financial stability.
Autor: Camila Henrique Leite • email: camila.leite@ernestoborges.com.br • Tel.: +55 67 99901 0803
