The Fourth Panel of the Superior Court of Justice (STJ) decided that the violation of homogeneous individual rights, recognized in a public civil action, does not authorize the indemnity for collective moral damage. This is because this type of damage is aimed at diffuse and collective interests, and not homogeneous individuals, whose holders are determined people.
The Public Civil Action was proposed by the MP-RJ in the face of a retail company, claiming that it would have stipulated only a period of seven calendar days, counted from the issuance of the invoice, for the exchange of products, after which the consumer only could seek accredited technical assistance. Conduct that, according to MP-RJ, would be in disagreement with several legal norms, among which articles 18 and 26 of the CDC, regarding the deadline to complain of apparent defects in services and non-durable products.
The sentence condemned the retail company to comply with the CDC rules, particularly with regard to the terms for the exchange of products (non-durable and durable) and the payment of indemnities for individual material and moral damages, upon determination in settlement of the sentence, in due to the recognition of injury to consumer rights.
In view of this decision, the MP-RJ filed an appeal seeking the merits of the request for reparation for material damages and collective moral damages, which was unanimously dismissed by the 4th Civil Chamber of the TJ-RJ. In the appeal in a special appeal addressed to the STJ, the ministerial organ alleged the occurrence of collective moral damage caused by the company’s conduct, since consumers would be exposed to abusive commercial practices, also claiming that the demonstration of this type of damage is limited to the finding of duct hardness.
In the STJ’s decision on collective moral damage it was stated that despite being presumed, requiring for its configuration the mere investigation of anti-legal conduct that violates, in an unjust and intolerable way, rights of off-balance-sheet content of the community, so that no indemnity occurs it is a question of the number of people actually harmed, but of the illicit conduct reaching fundamental collective values and interests, precisely diffuse and collective interests.
In addition, it was noted that the provisions dealing with collective actions for the defense of homogeneous individual interests in the CDC and in Law No. 7,347 / 1985 must be interpreted systematically because they jointly form “the microsystem of the collective process for the defense of consumer rights” .
Wilson Sales Belchior