3/1/2021
By the judgment published on 02/26/2021, referring to the Special Appeal No. 1.610.821/RJ, the Fourth Panel of the Superior Court of Justice (“STJ”), by unanimous decision, stated that the violation of homogeneous individual rights does not generate collective moral damages.
In the aforementioned case, the Public Prosecutor Office of the State of Rio de Janeiro (“MPRJ”) filed a Public Civil Action against a notorious retailer of appliances and electronics for the practice of reducing the legal warranty period provided for in article 26 of the Brazilian Code of Consumer Protection (“CDC”), by setting a limitation of 7 working days (instead of the 30 days provided by law).
According to the MPRJ, such conduct exposed consumers to abusive commercial practices, making evident the violation of the collectivity which was raised by the Public Prosecutor Office as the only necessary requirements for the configuration of the collective moral damage.
In the first level of judgment, the retailer was condemned for both individual material and moral damages, while the Public Prosecutor Office’s claim with grounds on the occurrence of collective damage was dismissed.
The case was then submitted to the Rio de Janeiro State Court due to the appeal filed by the Public Prosecutor. After the decision has been upheld by the Court, the MPRJ filed a special appeal, which was also dismissed by the Superior Court of Justice.
When justiying his vote, the reporting Justice Luis Felipe Salomão noted that “regardless of the number of people concretely affected by the injury in a certain period, the damage resulting from the violating conduct must be ignoble and significant, affecting inescapably and intolerably the fundamental collective values and interests”.
The Justice also pointed out that collective moral damages would have a distinction between diffuse and transindividual interests. This is because, unlike homogeneous individual moral damages, in which the conviction would be generic and the fixed values intended for the victims, the collective moral damages would have a sanctioning nature, so that the amounts resulting from the conviction would be destined to a fund for the defense of diffuse rights.
Therefore, an emblematic decision, as it sets criteria for the recognition of collective moral damages in the scope of consumer relations, limiting the convictions in cases involving exclusively homogeneous individual damages.
Coauthors: Heitor Tales de Lima Favaro and Harumi Pinheiro Hioki
