Cláusulas abusivas nos contratos bancários: a defesa do consumidor como princípio da ordem econômica constitucional

Abstract

The present work aims to analyze clauses provided for in bank contracts in the light of the principle of consumer protection in the constitutional economic order, investigating the concepts that involve the consumption relationship and the legality of various practices and controversial aspects of banking law. The study aims to investigate, above all, whether the treatment given by the judicial decisions handed down by the Superior Court of Justice, the Supreme Federal Court and the Court of Justice of the State of São Paulo to the various clauses inserted in bank contracts, which are commonly challenged in court, take into account the principle of consumer protection in the constitutional economic order, as guided by art. 170 of the Federal Constitution. In addition, the work aimed to verify whether state regulation in the administrative sphere considers the principle of consumer protection in relation to contracts in its performance. The judicial decisions analyzed in the present work were those issued in the last 10 years, that is, from 2010 to 2020, with special emphasis on those decided after the edition of the Civil Procedure Code of 2015 under the regime of joint judgment of special appeals and repetitive extraordinary terms, under the terms of art. 1.040 of the Code of Civil Procedure, since these decisions are binding on other Courts and impact the economic order of the entire country. The present work adopted the exploratory and descriptive research methodology, with a qualitative approach, eminently bibliographic and documentary, of an applied nature.