Moral Damage to the Consumer
Indemnities
At Indemnity Advocacy, we work in the most diverse areas of law, seeking to recover the losses unduly experienced by clients.
These indemnities, depending on the specific case, updated, usually vary between R $ 2,000.00 (two thousand reais) and R $ 20,000.00 (twenty thousand reais).
Our team of lawyers is specialized and will certainly be able to assist you in the search for the rights that you are entitled to. We operate throughout the State of Santa Catarina, more specifically in Joinville, Jaraguá do Sul, Blumenau, Florianópolis, Balneário Camboriú, Criciúma and surroundings.
Moral Damage for Fraud in Opening a Bank Account, Hiring a Loan or Issuing Bank Slips
There is strict liability of the financial institution, under the terms of article 14, of the Consumer Protection Code, when allowing the contracting of loans, account opening and issue of slips through fraud.
The financial institution acts negligently when it does not surround itself with the necessary care, in order to avoid possible frauds committed by a third party in contracting services and making purchases.
And when there is improper registration in the records of serasa, spc, or even protest, the consumer suffers undeserved embarrassment when being prevented from using the possibility of credit, remaining the moral damage claimed, presumably in this case, since the liability of the agent it operates by virtue of the simple fact of the violation.
Therefore, any undue act caused by banks, financial institutions or credit unions that cause undue damage to consumers, among them the registration in the credit protection records, spc, serasa or undue protest, constitutes, unequivocally, illicit acts, which give opportunity for indemnity for pain and suffering.
Moral Damage for Sending Unsolicited Credit Card, Unrecognized Purchases or Credit Card Cloning
In the light of art. 39, III, of the Consumer Protection Code and Precedent 532 of the STJ, the sending of an unsolicited credit card by the consumer and notably, the carrying out of undue charges and threats of negativity or even the registration in the credit protection register, constitutes indemnifiable moral damage.
This is because, in line with the theory of professional risk, financial institutions are responsible for fraudulent operations perpetuated against their clients, characterizing the moral damage indemnifiable by the system's own insecurity.
Therefore, issuing and sending an unsolicited card, as well as allowing the card to be unblocked and improper purchases by third parties, giving scope for enrollment in bad-paying registrations (serasa, spc and undue protest), unequivocally, constitute illegal acts, which give rise to indemnity for moral damages.
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Moral damage due to errors in contracting, issuing or debiting a credit card with a consignable margin reserve
The Superior Court of Justice consolidated its understanding of the strict liability of financial institutions in the face of fraud committed by third parties, in accordance with the entry in Precedent 479, verbis: Precedent 479 of the STJ: Financial institutions are objectively liable for the damages caused by an accident frauds and crimes committed by third parties in the context of banking operations.
If the client has not contracted and / or authorized a loan, either in the common mode or via credit card with a consignable margin reserve for social security benefit, indemnity for moral damages is applicable.
Therefore, by allowing the hiring of fraudulent third parties in bad faith, giving scope for registration in bad payers' records (serasa, spc and undue protest), unequivocally, financial institutions commit illegal acts, which give rise to indemnity for moral damages.
Moral Damage for Undue Protest, Negativity in Credit Restriction Bodies or Undue Maintenance in Register of Defaulters
After the 1988 Constitution, there was no longer any doubt as to the possibility of claiming reparation for moral damage, as can be seen, by means of the following transcribed provisions:
5th. All are equal before the law, without distinction of any kind, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, freedom, equality, security and property, in the following terms:
[...]
V - the right of reply is guaranteed, proportional to the appeal, in addition to the indemnity for material, moral or image damage;
[...]
X - intimacy, private life, honor and people's image are inviolable, the right to compensation for material or moral damage resulting from their violation being ensured;
[...]
(emphasis added)
Civil liability can be of a subjective or objective nature.
In the first, the duty to indemnify arises from the behavior of the subject who causes the damage, through intent or guilt. In the latter, it is only necessary to have damage and a causal link that generates the obligation to indemnify, regardless of the guilty or not guilty conduct of the subject.
Strict liability is based on the principle of equity, which has existed since Roman law. It is based on the premise that everyone who profits from a given situation must be held accountable for the risk that arises from it. It presupposes not intent or guilt, but only the creation of risk, as understood:
Anyone (natural or legal person) who undertakes an activity that, by itself, creates a risk for others, is responsible for the consequences of damages to third parties. There will be no question of whether there was a procedure by the principal in choosing or supervising the representative, that is, guilt is abstracted in eligendo or in vigilando. There will also be no question of whether the employee has done wrong, so that the employer is responsible for the damages caused to third parties (CAIO MÁRIO PEREIRA DA SILVA in, Civil Liability. 10th Ed. Rio de Janeiro: Forense, 2012, p. 381).
Furthermore, as determined by the Consumer Protection Code, since it is a service provision, the defendant's liability is objective, regardless of guilt, as can be seen:
Art. 14. The service provider is responsible, regardless of the existence of fault, for repairing the damage caused to consumers due to defects in the provision of services, as well as for insufficient or inadequate information about their enjoyment and risks. (emphasis added)
It is necessary to analyze the provisions of the Civil Code regarding the unlawful act, in its article 186, listed below:
Art. 186. Anyone who, by voluntary action or omission, negligence or imprudence, violates the right and causes harm to others, even if exclusively moral, commits an unlawful act.
(emphasis added)
At this point, it is worth noting the provisions of the Civil Code, in its article 927, regarding the obligation to indemnify:
Art. 927. Anyone who, by an unlawful act (arts. 186 and 187), causes harm to others, is obliged to repair it.
Single paragraph. There will be an obligation to repair the damage, regardless of fault, in the cases specified by law, or when the activity normally carried out by the perpetrator of the damage, by its nature, poses a risk to the rights of others.
(emphasis added)
Still, Precedent 479 of the STJ, a discipline that "Financial institutions respond objectively for the damages caused by an internal accident related to frauds and crimes committed by third parties in the scope of banking operations". (Precedent 479, SECOND SECTION, adjudged on 6/27/2012, DJe 8/1/2012).
Therefore, the undue protest, the undue negativity in the credit restriction bodies or undue maintenance in the delinquent registry (serasa, spc and others) generates a duty to indemnify, since the consumer's image is shaken.
Therefore, the improper registration or maintenance of the name of consumers in bad credit registrations (serasa, spc and undue protest), unequivocally, constitute illicit acts, which give rise to indemnity for moral damages.
Moral Damage for Non-Existing Vehicle Financing Contract, Lien on Settled Vehicle or Undue Filing of Search and Seizure
Consumer law is considered a fundamental right. Explicit in article 5, item XXXII, of the Federal Constitution, it must be qualified as one of the principles of Economic Order, as provided for in article 170, item V, of the Federal Constitution.
Regarding the consumption relationship, the Consumer Protection Code provides for the definition of consumer and supplier:
Texto
Art. 2 - A consumer is any natural or legal person who purchases or uses a product or service as the final recipient.
Art. 3 - Supplier is any natural or legal person, public or private, national or foreign, as well as depersonalized entities, who develop activities of production, assembly, creation, construction, transformation, import, export, distribution or commercialization of products or services provision.
Therefore, consumer relations are applied in the relationship between consumers and banks, credit unions or financial institutions.
In this case, the service providers (financial institutions) are responsible for proving the existence of the financing agreement or vehicle consortium, the health and the need for maintenance of the lien, and also in relation to the search and seizure action.
If any of these acts is carried out improperly, causing damage to the consumer, the claim for indemnity for moral damage is applicable.
Therefore, by allowing vehicle financing to be contracted by third parties in bad faith, by improperly including or maintaining liens on vehicles, as well as by unequivocally seeking search and seizure, financial institutions commit illegal acts, which give rise to unlawful acts. opportunity for indemnity for moral damages.
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Moral Damage by Flight Delay
It is entitled to indemnity for moral damage if a passenger had to wait too long at the airport or inside the aircraft, causing a delay in the flight and causing loss or delay in important commitments, such as holidays, honeymoons, hearings, and others.
And the airline cannot claim that the delays occurred due to bad weather or operational problems, as technical repairs to planes and management of the flight plan in bad weather are within the ordinary activities of an airline, that is, they are absolutely predictable events, therefore being part of the risk taken when developing an activity in the consumer sector, characterizing a fortuitous event.
Therefore, the delay in flights that generates losses to the consumer, gives rise to compensation for moral damages.
Moral Damage for Flight Cancellation
The service provider, regardless of fault, is responsible for repairing the moral damage caused to the contracting consumer due to his wrongful performance.
The cancellation of a flight capable of compelling the consumer to stay for a long period of time at the airport and to arrive at his destination with a long delay, constitutes a failure in the provision of the service to give rise to indemnified moral illicit.
The right to receive indemnity for pain and suffering if the airline, for example, has limited itself to blame the incident for meteorological restrictions or mechanical failure, without proving as to the impediment to provide the air transport service.
Therefore, the flight cancellation, which generates losses for the consumer, gives rise to compensation for moral damages.
Moral Damage for Lost Baggage
Indemnity for moral damages is applicable if, for example, due to the temporary loss of your luggage, the passenger was obliged to stay for days on foreign soil without her belongings, having to purchase clothes and personal hygiene items.
It is that the loss of luggage, even if temporary, causes inconvenience and inconvenience that go beyond mere discomfort, causing indemnifiable moral damage. The boredom, inconvenience and suffering that this circumstance generates in the passenger's spirit is undeniable, a situation that certainly escapes the condition of daily unpleasantness.
Therefore, the loss or delay in the return of luggage, generates losses to the consumer, giving rise to the right to indemnity for moral damages.
Moral Damage by Overbooking
The company that sells more tickets than the aircraft capacity is responsible for the damage caused by its conduct, practicing overbooking, causing the passenger to be unable to board on the scheduled date beyond reasonable.
The impossibility of boarding by overbooking, which subjects the consumer to prolonged delay, undoubtedly constitutes a failure in the provision of service by the airline.
According to the guidance of the Superior Court of Justice, the moral damage resulting from "overbooking" does not require proof, being configured in re ipsa, insofar as it is presumed and derives from the very illegality of the fact and from common experience.
Therefore, the practice known as overbooking, which consists of selling tickets in greater numbers than the number of available banks, generates losses for the consumer, giving rise to the right to compensation for moral damages.
Moral Damage by Relocation to Lower Class
Indemnity for moral damages is applicable if the passenger is allocated to a flight class or flight conditions other than those contracted.
An example of this is the consumer hiring business or special class travel, but traveling in economy, due to stocking or poor management by the airline.
According to the Consumer Protection Code, since it is a service provision, the defendant's liability is objective, regardless of guilt, as can be seen:
Art. 14. The service provider is responsible, regardless of the existence of fault, for repairing the damage caused to consumers due to defects in the provision of services, as well as for insufficient or inadequate information about their enjoyment and risks.
(emphasis added)
It is necessary to analyze the provisions of the Civil Code regarding the unlawful act, in its article 186, listed below:
Art. 186. Anyone who, by voluntary action or omission, negligence or imprudence, violates the right and causes harm to others, even if exclusively moral, commits an unlawful act.
(emphasis added)
At this point, it is worth noting the provisions of the Civil Code, in its article 927, regarding the obligation to indemnify:
Art. 927. Anyone who, by an unlawful act (arts. 186 and 187), causes harm to others, is obliged to repair it.
Single paragraph. There will be an obligation to repair the damage, regardless of fault, in the cases specified by law, or when the activity normally carried out by the perpetrator of the damage, by its nature, poses a risk to the rights of others.
(emphasis added)
There are several judges recognizing the right to compensation in the event of an arbitrary change (by the airline) in the comfort class contracted for the trip.
Therefore, the unilateral and arbitrary alteration of the travel comfort class, or even the non-functioning of the additionally contracted comfort items, generates losses to the consumer, giving rise to the right to indemnity for moral damages.
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Moral Damage for Improper Telephone Collection
Very common the existence of scam and fraud related to the contracting of telephone services by third parties, on behalf of consumers who are never even in the place where the services were enabled.
It happens that consumers only know of the existence of the fact, when they are already registered in delinquent registrations (spc, serasa or protest), in an undue way. This fact, of course, causes inconvenience in everyday life, which is why it is due to indemnity for moral damages.
The more advanced the sales sector became, the less formal the hiring ended up, facilitating fraud. It has become commonplace, from police reports to police stations, for citizens to confront telephone lines on their behalf without ever having contracted the service. This is because the fraudster easily used his / her data to enter into a contract with the service provider, which does not check whether that data is really of the person providing it and whether the documents, when required, are true or of the carrier.
From this perspective, especially the command that is extracted from art. 14, caput of the CDC, which determines that the service provider is responsible, regardless of the existence of fault, for repairing the damage caused to consumers due to defects in the provision of services, as well as for insufficient or inadequate information on their enjoyment and risks, clarifies the operator's responsibility to compensate the damages borne by the consumer.
Still, regarding strict liability, it is irrelevant the investigation of guilt of the person who assumed the risks of the business activity, and the consumer should only prove the occurrence of the damage, as well as the causal link with the conduct adopted by the service provider.
It is pointed out, in due time, that in the light of the Consumer Protection Code, it is up to the supplier to offer security in the provision of its service, in order to protect the consumer from possible damage. In this line, as a supplier, the telephone operator must endeavor in order to provide maximum security to its customer, in the case of strict liability.
Therefore, the occurrence of contracting telephone services, without the consumer's express consent, with improper enrollment in bad payment registrations, gives rise to indemnity for moral damages.
Moral Damage for Improper Bank Collection
After the 1988 Constitution, there was no longer any doubt as to the possibility of claiming reparation for moral damage, as can be seen, by means of the following transcribed provisions:
5th. All are equal before the law, without distinction of any kind, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, freedom, equality, security and property, in the following terms:
[...]
V - the right of reply is guaranteed, proportional to the appeal, in addition to the indemnity for material, moral or image damage;
[...]
X - intimacy, private life, honor and people's image are inviolable, the right to compensation for material or moral damage resulting from their violation being ensured;
[...]
(emphasis added)
Civil liability can be of a subjective or objective nature.
In the first, the duty to indemnify arises from the behavior of the subject who causes the damage, through intent or guilt. In the latter, it is only necessary to have damage and a causal link that generates the obligation to indemnify, regardless of the guilty or not guilty conduct of the subject.
Strict liability is based on the principle of equity, which has existed since Roman law. It is based on the premise that everyone who profits from a given situation must be held accountable for the risk that arises from it. It does not presuppose deceit or guilt, but only the creation of risk, as understood:
Anyone (natural or legal person) who undertakes an activity that, by itself, creates a risk for others, is responsible for the consequences of damages to third parties. There will be no question of whether there was a procedure by the principal in choosing or supervising the representative, that is, guilt abstraction is made in eligendo or in vigilando. There will also be no question of whether the employee has done wrong, so that the employer is responsible for the damages caused to third parties (CAIO MÁRIO PEREIRA DA SILVA in, Civil Liability. 10th Ed. Rio de Janeiro: Forense, 2012, p. 381).
In addition, as determined by the Consumer Protection Code, since it is a service provision, the defendant's liability is objective, regardless of guilt, as can be seen:
Art. 14. The service provider is responsible, regardless of the existence of fault, for repairing the damage caused to consumers due to defects in the provision of services, as well as for insufficient or inadequate information about their enjoyment and risks.
(emphasis added)
It is necessary to analyze the provisions of the Civil Code regarding the unlawful act, in its article 186, listed below:
Art. 186. Anyone who, by voluntary action or omission, negligence or imprudence, violates the right and causes harm to others, even if exclusively moral, commits an unlawful act. (emphasis added)
At this point, it is worth noting the provisions of the Civil Code, in its article 927, regarding the obligation to indemnify:
Art. 927. Anyone who, by an unlawful act (arts. 186 and 187), causes harm to others, is obliged to repair it. Single paragraph. There will be an obligation to repair the damage, regardless of fault, in the cases specified by law, or when the activity normally carried out by the perpetrator of the damage, by its nature, poses a risk to the rights of others.
(emphasis added)
Still, Precedent 479 of the STJ, a discipline that "Financial institutions respond objectively for the damages caused by an internal accident related to frauds and crimes committed by third parties in the scope of banking operations". (Precedent 479, SECOND SECTION, adjudged on 6/27/2012, DJe 8/1/2012).
Therefore, the undue collection, which can cause the undue protest, the undue negativity in the credit restriction bodies or undue maintenance in the delinquent registry (serasa, spc and others) generates a duty to indemnify, since the consumer's image is shaken.
Therefore, the undue collection, improper registration or maintenance of the name of consumers in bad credit registrations (serasa, spc and undue protest), unequivocally, constitute illicit acts, which give rise to indemnity for moral damages.
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Moral Damage Due to Statutory Debt Collection
The conduct embodied in the abusive collection of clearly prescribed debt, which exposes the consumer to ridicule (art.42, of the CDC), entails the payment of indemnity, a fact that deserves a reprimand by the Judiciary.
If the failure in the collection service is proven, in the face of incisive charges combined with undue protest or enrollment in bad payrolls (spc and serasa) for debt already prescribed, the inconveniences caused to the consumer are evident, which transcend the normal ones of the daily life moral damage, which must be repaired.
Therefore, the improper collection of the prescribed debt, the improper registration or maintenance of the consumers' names in bad payment records (serasa, spc and undue protest), unequivocally, constitute illicit acts, which give rise to indemnity for moral damages.
Moral Damage for Undue Collection in Tax Foreclosure
In view of the provisions of the Federal Constitution of the Republic, States, Municipalities and the Federal Union (Brazil) are objectively liable for the administrative damages. That is to say, it is not required to know whether this or that professional was responsible for the incident that led to the damage.
Article 37 of the Federal Constitution thus provides:
Art. 37. The direct and indirect public administration of any of the Powers of the Union, the States, the Federal District and the Municipalities will obey the principles of legality, impersonality, morality, publicity and efficiency and, also, the following: [... ] § 6 The legal entities of public law and those of private law that provide public services shall be liable for the damages that their agents, in that capacity, cause to third parties, ensuring the right of recourse against the person responsible in cases of intent or guilt.
As if that were not enough, the Civil Code, likewise, adopted the orientation enshrined in the Political Charter:
Art. 43. Legal entities under domestic public law are civilly responsible for acts of their agents that in that capacity cause damage to third parties, except for a regressive right against those causing the damage, if there is, on their part, guilt or intent.
There is also no doubt that the hypothesis calls for the observance of Consumer Law, which, similarly, reserved the civil liability of the public entity, as well as the incidence of said legislation:
Art. 3. Supplier is any natural or legal person, public or private, national or foreign, as well as depersonalized entities, which develop activities of production, assembly, creation, construction, transformation, import, export, distribution or commercialization of products or services provision.
Art. 22. Public agencies, by themselves or their companies, concessionaires, permission holders or in any other form of enterprise, are obliged to provide adequate, efficient, safe and, as for essential, continuous services.
Single paragraph. In cases of non-compliance, in whole or in part, with the obligations referred to in this article, legal entities will be compelled to comply with them and to repair the damages caused, as provided for in this code.
From another perspective, civil liability can be of a subjective or objective nature. In the first, the duty to indemnify arises from the behavior of the subject who causes the damage, through intent or guilt. In the latter, it is only necessary to have damage and a causal link that generates the obligation to indemnify, regardless of the guilty or not guilty conduct of the subject.
Strict liability is based on the principle of equity, which has existed since Roman law. It is based on the premise that everyone who profits from a given situation must be held accountable for the risk that arises from it. It presupposes not intent or guilt, but only the creation of risk.
It is necessary to analyze the provisions of the Civil Code regarding the illegal act:
Art. 186. Anyone who, by voluntary action or omission, negligence or imprudence, violates the right and causes harm to others, even if exclusively moral, commits an unlawful act.
At this point, it is worth noting the provisions of the Civil Code regarding the obligation to indemnify:
Art. 927. Anyone who, by an unlawful act (arts. 186 and 187), causes harm to others, is obliged to repair it.
Single paragraph. There will be an obligation to repair the damage, regardless of fault, in the cases specified by law, or when the activity normally carried out by the perpetrator of the damage, by its nature, poses a risk to the rights of others. (emphasis added)
In addition, as determined by the Consumer Protection Code, since it is a service provision, the defendant's liability is objective, regardless of guilt, as can be seen:
Art. 14. The service provider is responsible, regardless of the existence of fault, for repairing the damage caused to consumers due to defects in the provision of services, as well as for insufficient or inadequate information about their enjoyment and risks.
For these reasons, regardless of the demonstration of guilt, it is clear that by improperly collecting taxes on tax foreclosure, with the blocking of bank accounts, vehicles and properties improperly, the federal entities commit an illegal act, and must indemnify them.
Therefore, the responsibility of States, Municipalities and the Union to demonstrate indemnity in the event of filing with improper tax enforcement is demonstrated.
Therefore, the undue collection of tax debt, the improper registration or maintenance of the name of the taxpayers in bad credit registrations (cadin, serasa, spc and undue protest), unequivocally, constitute illicit acts, which give rise to indemnity for moral damages.
Moral Damage for Absence of Legal Business or Unproven Contracting
As service providers, companies must act with diligence, taking all necessary measures to ensure the security of the business carried out, equipping themselves with the necessary means to avoid possible fraud or errors.
Not acting in this way, patent your objective civil liability.
Consumer service providers, including telephone companies, Internet companies, banks, credit unions, financial institutions, educational institutions, consortia, real estate companies, among countless others, have a legal duty to optimize their means of control so that they are efficient and efficient. avoid damage to third parties, users or not, verifying the veracity of the information provided at the time of hiring, assuming all risk, which imposes the duty to indemnify.
And in fact, having recognized the absence of contracting or the non-existence of the business, it is possible to indemnify due to the losses experienced.
Therefore, the undue collection, improper registration or maintenance of the name of consumers in bad credit registrations (serasa, spc and undue protest), unequivocally, constitute illicit acts, which give rise to indemnity for moral damages.