By Barbara Oliveira

Certainly, the discussion regarding the inadmissibility of compensation for moral damages caused by mere annoyances in everyday life has already been exhausted. However, debates still arise regarding the distinction between the setbacks of everyday life and the real characterization of the damage.

In the consumerist context, the tendency is to place the largest possible burden of the supplier's economic activity on the consumer, creating methods, such as self-service platforms, that allow for a significant reduction in the structure of providing in-person support. Furthermore, anyone who has had problems in consumer relations knows the difficulties imposed by suppliers in resolving them.

The transfer of service methods to self-service platforms, although it has significantly reduced the search for personal service, has increased the waiting time for such service, given the drastic reduction in available providers.

Both the time spent waiting for a service to be provided and the time spent trying to resolve a problem may give rise to compensation for loss of useful time when they exceed the reasonable limit. This is the understanding of the Superior Court of Justice in recent decisions.

With the ratification of the STJ's understanding in several judgments, there was a consequent increase in decisions by the Courts of Justice recognizing the application of compensation for this reason.

The Third Panel of the STJ understood that the optimization of time is a collective interest, which must be protected by the legal system and, therefore, must be compensated when harmed[1]. This was the Court's first decision to recognize the applicability of the Consumer Productive Deviation Theory, also called Theory of Lost Time.

The creator of the theory, jurist Marcos Dessaune, defines it as follows:

“Productive deviation is characterized when the consumer, faced with a situation of poor service, needs to waste his time and divert his skills — from a necessary or preferred activity — to try to solve a problem created by the supplier, at an undesirable opportunity cost, of an irrecoverable nature”

As with other compensation for various moral damages, the analysis to determine the need for compensation for lost time, as well as to set the amount, is absolutely subjective. quantum compensatory, being essential to consider the amount of time wasted, the purpose of the loss of time, the activity that the consumer could be performing during that period, in addition to other criteria common to general moral damages.

The understanding given by the judges is the result of the constant change in social values, and the importance given by society to the possibility of using time in everyday life is unquestionable, given its scarcity, which undoubtedly makes it worthy of protection.

[1] STJ – REsp: 1737412 SE 2017/0067071-8, Rapporteur: Minister NANCY ANDRIGHI, Judgment Date: 02/05/2019, T3 – THIRD PANEL, Publication Date: DJe 02/08/2019.