Recovery of Undue Payments in Consumer Law – STJ Theme 929.

The Superior Court of Justice (STJ) has consolidated the understanding that the double refund provided for in Article 42, sole paragraph, of the Consumer Defense Code (CDC) does not depend on proof of bad faith or willful intent on the part of the supplier.

To apply the double refund rule, one must analyze whether the improper charge resulted from conduct contrary to the principle of objective good faith, taking into account the specific circumstances of the case and whether or not the error was justifiable.

Consequently, a mere claim of an absence of bad faith is no longer sufficient to avoid the double refund. The analysis now focuses on the supplier’s objective conduct regarding the improper charge, particularly whether the error reveals unfair or careless behavior. On the other hand, a double refund is not an automatic consequence of every improper charge; demonstrating circumstances that might characterize a “justifiable error” remains relevant.

This understanding has a significant impact on high-volume litigation, especially in cases involving improper charges, fees, banking contracts, and consumer relations. In defense strategies, it becomes important to demonstrate not only the lack of intent to harm the consumer but also the circumstances that gave rise to the charge, existing control procedures, and the measures taken to identify and correct any inconsistency.

In this context, documents related to the contract, internal systems, customer service and complaint records, as well as measures taken after the problem was identified, can play a crucial role in demonstrating objective good faith and, depending on the case, establishing the existence of a justifiable error.

Another point requiring attention is the modulation of effects defined by the STJ, which must be considered when analyzing the date the improper charge occurred and determining the applicable legal standard for the specific case. Therefore, the assessment of the refund of an undue payment must jointly consider the nature of the charge, the circumstances of the error, the supplier’s conduct, and the timeframe in which the event took place. The precedent reinforces the need for companies to adopt a proactive and well-documented approach—particularly in high-volume operations—where identifying the origin of charges and recording the measures taken can be decisive for an effective legal defense.

Sources:

Allan Gois | allan.gois@nascimentomourao.adv.br

High-Volume Litigation Consultant.