12/22/2022
The Third Panel of the Superior Court of Justice decided, in a recent judgment, that a contractual clause prohibiting the transfer of bonus points upon the death of the holder of a mileage program would be valid.
The case deals with the possibility of succession of accrued points in the Tam Fidelity Program (formerly LATAM’s Rewards Program).
The heirs filed a lawsuit in order to obtain the right to such points of the deceased owner, since TAM refused to make the transfer due to the prohibition clause. TAM, in turn, filed a defense alleging the absence of abusive clause in the contract.
The court agreed with LATAM, pointing out that the clauses contained in an adhesion contract shall only be declared null and void when they establish obligations that are considered unfair, abusive, place the consumer at an unfair disadvantage or are incompatible with good faith or equity, which was not observed in this case.
After all, the clause must be read within the context of the contract, which has an adhesion nature and is beneficial to the consumer, since it would generate obligations only to TAM, the institutor of the program.
According to the vote of the reporting justice, Justice Moura Ribeiro, the contract does not require monetary consideration from the beneficiary and provides for liability only to its creator. Thus, as it is a beneficial contract, even if it is an adhesion contract, it has an intuitu personae nature, i.e., it binds only the person who receives the benefit directly.
Thus, the clause that forbids the succession of miles would be fully valid and, in the event of the holder’s death, the points must be returned to the company.
