BANKING CONTRACTS WITH ILLITERATE INDIVIDUALS: A COMPARATIVE ANALYSIS OF THE THESES OF IRDR 2/TJTO AND 17/TJCE, IN LIGHT OF THE IMPACT OF THEME 1116/STJ

Abstract

This article analyzes the validity of bank contracts signed by illiterate consumers through signature by proxy, in light of the hyper-vulnerability of this group and the system of precedents established by the 2015 Code of Civil Procedure. It begins with the question of whether formal compliance with Article 595 of the Civil Code is sufficient to ensure the formation of free and informed consent in bank contracts, characterized by high technical complexity and marked informational asymmetry. The research adopts the hypothetical-deductive method, with a qualitative approach, using bibliographic, legislative, and jurisprudential research, with emphasis on the comparative analysis of Incidents of Resolution of Repetitive Demands No. 2 of the Court of Justice of the State of Tocantins and No. 17 of the Court of Justice of the State of Ceará, as well as the jurisprudence of the Superior Court of Justice related to Repetitive Theme No. 1,116. The results show that, although signature by proxy is a legally valid mechanism, its formal observance is not sufficient to guarantee the effective understanding of the contractual content by illiterate consumers. A material analysis of consent and consideration of the possibility of defects of will are necessary. It is concluded that protecting this group requires an interpretation that reconciles the formal validity of the contract with the fulfillment of the duty to inform, objective good faith, and the protection of hyper-vulnerability.