Luck x bad luck: cases about prizes and contests in the STJ jurisprudence

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Luck x bad luck: cases about prizes and contests in the STJ jurisprudence

In general, the Brazilian population is adept at some type of game. The proof of this is the increase in the collection of lottery services from Caixa Econômica Federal in 2020, which increased 2.35% compared to 2019 and reached the highest level in history: 17.1 billion reais. And the total amount transferred to the awards was R $ 5.9 billion.

In addition, society and the international market are following the process of regulating sports betting, which should be concluded this year, as well as the discussion on the legalization of the gaming sector in the country as an alternative for the resumption of the economy that is severely impacted by the COVID-19 pandemic.

And, according to the article published by Rafael Costa Monteiro on the JusBrasil platform, on April 18, there are several types of games, such as bingos, contests and promotional actions that distribute prizes and gifts.

The problem arises when the rules are not clear enough, or when the participant feels wronged for something that is not limited to their “bad luck” at the time of the game. Check out the full text below!

The die are cast: conflicts over awards and sweepstakes in STJ jurisprudence

The regulation of lotteries in Brazil is the responsibility of the Ministry of Economy, which has the legal responsibility to authorize, supervise, inspect and regulate these services. In addition to an individual opportunity to improve their lives, the sweepstakes bring collective benefits, as, according to the Constitution, their revenues reinforce the financing of social security.

While the legalization of gambling in Brazil is being discussed in political circles, official lotteries are breaking records. Last year, the global collection of lotteries managed by Caixa Econômica Federal (CEF) grew 2.35% in relation to 2019 and reached its highest level in all history: R $ 17.1 billion. According to data from CEF itself, R $ 8.05 billion was transferred to social spending. The total value of the premiums distributed increased from R $ 5.9 billion.

The Brazilian likes to bet and draw. In addition to lotteries, there are games of all kinds, bingo games, investments in savings bonds, promotions and contests that distribute prizes. But when the rules of the game are unclear, or the player feels frustrated by something more than mere bad luck, the conflict can result in prosecution and add to the many issues stamped in the lottery jurisprudence of the Superior Court of Justice ( STJ).

Lack of clarity

When judging REsp 1,740,997, the Third Panel upheld a decision by the Ceará Court that ordered the Capitalization Leadership, responsible for the Telesena capitalization bond, to pay the equivalent of R $ 60,000 to a consumer who bought a bond and, when scraping the instant prize venue – a modality known as scratch card – found three identical phrases that claimed that he was the winner of a prize of R $ 5,000 per month, for a year.

According to the bettor, the company refused to pay him the prize, claiming that the winning title should bring three equal amounts – as stated in the title itself – and also the expression “call 0800 …” – as provided for in the general conditions of the contest.

The rapporteur, Minister Paulo de Tarso Sanseverino, stressed that, before the Consumer Protection Code (CDC) came into force, the common thing, when the person intended to conclude a contract, exposing himself to the existing offer on the market, was to seek, itself, the necessary, sufficient and secure information about the good or service that it wished to acquire.

However, after the edition of the CDC, which adopted a model of transparency in consumer relations, it started to demand clarity in the information in the pre-contractual period about the business to be concluded.

“In view of the undue collision of information contained in the title, in the sense that three equal amounts would be sufficient for the payment of the premium, and those contained in the general clauses, that it would be necessary, in addition to the three equal amounts, the phrase ‘call 0800 … ‘, the most favorable interpretation to the consumer shall always prevail, in the form of article 47 of the CDC “, stated the rapporteur.

Sanseverino considered the printing of the title to be a real “prank” for the consumer and considered that it is not acceptable to make the chicane official against those who have their constitutional protection recognized.

Collective moral damage

In 2016, in REsp 1,438,815, reported by Minister Nancy Andrighi, the Third Panel decided that, although the exploitation of electronic game machines, slot machines, bingo machines and the like is illegal, as it characterizes a contravention practice described in article 50 of Criminal Misdemeanor Law, such an activity, by itself, does not generate collective moral damage.

The decision originated in an action by the Federal Public Ministry (MPF) against a cultural and sports association responsible for organizing the draw for 16 motorcycles, with a ticket to be purchased for R $ 15. The MPF maintained that private individuals were not allowed to exploit games of bad luck and required that the entity be ordered to abstain from such sweepstakes, in addition to paying collective moral damages.

Although it argued that it was not a game of chance, but simply a drawing of prizes, the association was ordered to pay R $ 15,000 for collective moral damages.

In pronouncing her vote, Nancy Andrighi recalled that the STJ has ruled on more than one occasion regarding the illegality of the practice of gambling and the like. However, she observed that, according to the jurisprudence, the collective moral damage “corresponds to an injury in the extra-patrimonial sphere of a community, due to the violation of collective individual law, capable of causing a negative impact on the morality of the community”.

In the case analyzed, the rapporteur understood that there was no disgust or suffering capable of affecting the dignity of the consumer and removed the obligation to indemnify. “It is not the commission of any illegality that is capable of giving rise to collective moral damage, but only that which, due to its social repercussion, is capable of causing a profound negative impact on the morale of a certain community,” he declared.

Awarded Christmas

When playing AgInt in REsp 1,591,336, the Third Panel maintained the decision of the Court of Justice of Paraná (TJPR) that ordered a commercial association to indemnify a participant in a Christmas promotion who was publicly awarded with a vehicle 0 km after an error in the draw and subsequently prevented from redeeming the prize.

The rapporteur of the process, Minister Paulo de Tarso Sanseverino, pointed out that denying the participant the right to receive the prize, in accordance with the public commitment assumed even by the president of the association organizing the draw, would imply “offending the principle of objective good faith”.

According to the case file, the promotion ticket provided that the order of the draws would be decreasing, starting with the 48th prize until reaching the 1st. 47 cash prizes, worth R $ 500, and a 0 km car would be drawn. It happens that, during the draw, 48 prizes of R $ 500 plus the vehicle were accidentally drawn, which meant that the main prize was attributed to the 49th draw.

When trying to receive the car, the person announced as the winner heard the allegation that an errata was published with the winner’s correction, which would be the 48th drawn, as provided for in the ticket. She then filed a lawsuit to guarantee her right to the car and asked for moral damages.

The TJPR determined that the association should pay the plaintiff the value of the car and the moral damages. Minister Sanseverino observed that, according to the facts recognized by the ordinary bodies, shortly after the mistake in the draw was verified, the president of the commercial association himself publicly declared that there would be 48 prizes of 500 and more, “committing himself, on behalf of the entity, to contemplate the 49th person with the vehicle “.

Worth R $ 1 million

The Fourth Panel, when judging REsp 788,459, accepted a request from BF Utilidades Domésticas Ltda., A Silvio Santos Group company, to reduce the compensation granted by the Justice of Bahia to a participant in the TV show “Show do Milhão” – contest of questions and answers about general knowledge, with a maximum prize of R $ 1 million in gold bars.

As reported by the participant, she was successful in answering the questions, except for the last one, called “question of the million”, which she did not want to answer to safeguard the prize already accumulated up to that point, of R $ 500 thousand. If you gave the wrong answer to the last question, you would lose all the value already earned.

However, she claimed that the organization acted in bad faith in the elaboration of the question, which did not have a correct answer, and claimed the payment of moral damages. In ordinary courts, the company was ordered to pay R $ 500 thousand – an amount that, added to the R $ 500 thousand received in the program, totaled the maximum premium.

The rapporteur at the STJ, Minister Fernando Gonçalves (retired), stated that, as the ordinary bodies concluded that the participant failed to answer the last question due to the logical infeasibility of an adequate response, it was possible to indemnify the lost chance.

However, he stressed that it would not be possible to predict that the normal course of events would lead to the settlement of the issue. “Thus, there is a lack of essential assumption for the appellant’s condemnation to pay the full amount that the defendant would win if it were successful in the final question, namely, the certainty – or the objective probability – of the equity increase capable of qualifying the loss of profit”, evaluated.

The group decided to reduce the indemnity to R $ 125 thousand, considering that this amount would better translate the missed opportunity, due to the fact that the issue has four alternatives.

Gambling debt

In REsp 1,628,974, judged in 2017, the Third Panel decided that the collection of gambling debt contracted in countries where this activity is legal can be done through an action filed by the creditor in Brazil.

When analyzing the case of a debt of more than US $ 1 million that would have been made by a Brazilian in a poker tournament in a Las Vegas casino, in the United States, the class defined that the collection is legally possible, as long as it is proven that the game it is legal in the place where it was practiced.

The rapporteur, Villas Bôas Cueva, explained that collection would only be impossible if it offended national sovereignty or public order, which was not configured in the case.

“The collection of gambling debt is not offensive to national sovereignty, since the granting of validity to a legal transaction carried out abroad does not remove the power of the State in its territory, nor does it create any form of dependence or subordination to other sovereign states”, he summarized the minister.

Villas Bôas Cueva said the analysis of the offense against public order was delicate, an allegation that, if accepted, would make the collection unfeasible. The rapporteur pointed out that different types of games are allowed in Brazil, such as lotteries and scratch cards; thus, it is reasonable to charge for a regulated game at the place where the events occurred.

“There is, therefore, equivalence between foreign law and Brazilian law, as both allow certain games of chance, supervised by the State, and, for these, collection is allowed. Thus, there is no glimpse of a result incompatible with public order” , stressed the minister.