A análise jurisprudencial das correntes do Superior Tribunal De Justiça acerca da configuração do dano moral indenizável em relação à aquisição de produtos alimentícios contaminados com corpos estranhos

Abstract

The jurisprudential analysis of the currents of the Superior Tribunal de Justiça about the configuration of indemnifiable moral damage in relation to the acquisition of food products contaminated. For the construction of the problem, it was verified the existence of two currents that orbit in that Court and that deal with the (im)possibility of the recognition of the consumer to the indemnity for moral damages resulting from the acquisition of contaminated food products. The present study uses the empirical approach method, a condition justified by the extensive jurisprudential analysis. Furthermore, an analysis will make use of elements of the systemic-constructivist method characterized by risk and trust, which are related to industrial mass production and consumer relations. Initially, an approach will bem ade regarding the importante hstorical milestones for the creation and development of Consumer Law. Furthermore, it will be shown what it means to be a consumer, indicating and characterizing vulnerability as an intrinsic elemento of the consumption relationship. Once the condition of consume is recognized, the legal consequences arising the recognition of this condition will be presented. Subsequently, the judicial decisions that gave rise to the former jurisprudential theses 02 and 03, of the Superior Tribunal de Justiça, which were transformed into currents, will be analyzed. In addition, the analysis proposal encompasses a rescue of first and second instance judgments that later arrived at the Superior Tribunal de Justiça. Thus, for the construction of this analysis, through the chapters an approach will be made about consumer rights and food safety. Subsequent to that, the court decisions justifying the old jurisprudential theses will be presented. Finally, the (im)possibility of liability of the food supplier will be verified even if there is no damage. The proposed study is of great importance, while the criteria that guarantee the consumer the right (or not) to compensation for moral damages arising from the acquisition of contaminated food products will be explored. Thus, while the majority current advocates that the consumer will only be entitled to compensation for moral damages if they ingest the food product contaminated with a foreign body, the minority establishes that the consumer will be intitled to compensation for moral damages for the simple purchase of the product food inappropriate for consumption, regardless of the fact that there is no ingestion, due to the violation of the fundamental right to food. In turn, from that point onwards, it began to consider the possibility of damage to the consumer due to the exposure of the consumer`s health and safety to the iminente risk, that is, in a formo f civil liability without the occurrence of damage. This position will be justified through judicial activism, and the applicability of punitive damages in decisions of this nature will be addressed. In cases where the food product is found to be deteriorated, the contamination of the foodstuff denotes a seriou lack of care, exposing the consumer to the iminente risk of damage to their life, health and physical integrity. Thus, the basis of the decision on this premise would overcome the compensatory bias of the indemnity and expose the punitive indemnity character.