If you have an account on Itau, must have had a headache this Thursday (3). The bank started having problems with statements and payments in the morning, with people complaining about too much or too little in their accounts. Afterwards, the application was down until the inaccuracies were resolved. Now, the question remains: what happens to those who spent the money that was there by mistake?
“Brazilian law says that we cannot use what is not ours. This can be both a criminal and civil issue”, explains lawyer Adriano Mendes, a specialist in digital law at Assis e Mendes Advogados, to the technoblog.
The lawyer cites articles 876 and 884 of the Civil Code and 169 of the Penal Code.
The understanding is the same as that of lawyer Carolina Carvalho de Oliveira, from Campos & Antonioli Advogados Associados.
“Whoever misused the money that entered the bank account by mistake, may be held criminally responsible for the crime of misappropriating things made by mistake, fortuitous event or force of nature, provided for in Art. 169 [do Código Penal]”, says Oliveira to the technoblog.
Article 169 of the Penal Code provides for imprisonment from one month to one year or a fine.
Oliveira also comments that this type of criminal offense has a milder punishment than Article 168, which provides for misappropriation and institutes imprisonment from one to four years, in addition to a fine. The difference between the two is the bank’s error, which causes the case to fall under article 169 rather than 168.
Itaú corrects balances and leaves customers in the red
At the end of the afternoon of this Thursday (3), the Itaú app started working again, and the balances, statements and payments were normalized. With the corrections, some customers were left with a negative balance.
A Twitter user says that she spent the money that was in the account and now, with the balance corrected, it is in the negative. Another, being in the same situation, asks the bank what to do.
To the technoblog, Mendes says that the bank can collect the debts generated by a pre-approved credit, such as an overdraft. The company will need to go to court to collect debts beyond this amount.
Lawyer Alexandre Vargas, specialist in fintechs and payment methods at Cescon Barrieu Advogados, explains to the technoblog that a deposit account is a contract with assets and liabilities.
This means that when the customer has money, it is his credit against the bank, that is, the bank owes him. When the customer is in the negative, it is a credit from the bank against him, that is, he owes the bank.
Therefore, those who spent money that was too much due to an error will have to return this amount to the financial institution, which will be able to charge the amount in court.
Use of money can generate lawsuit
Even if it doesn’t go to jail, the case can have other consequences.
Mendes mentions a recent case involving Rede Globo. A company employee sent a Pix worth R$300,000 to the wrong account. The man who received the amount bought a house with the amount. The broadcaster has filed a lawsuit to recover the money.
“If the money isn’t yours, don’t use it. Wait a day or two for the balance to settle. If not, open a call to return it, because this is correct and ethical”, says Mendes.
The lawyer’s recommendation is the same as Procon-SP. The agency notified Itaú to provide clarification on the episode, such as the number of affected customers and data security procedures.
Even so, the consumer protection entity is emphatic: “Amounts improperly deposited as a result of the failure of the Itaú website and app must not be used and must be returned.”
And when the error is the bank?
Not every Itaú customer who woke up with an extra amount in their balance. Many people went through just the opposite: they had less money. In some cases, the value remains below what it should even now, with the application up and running again.
And now, what happens? What should the customer do?
“In this case, the bank will be responsible for reimbursement of the amounts and indemnification for the damages caused”, says Mendes to the technoblog. “That is, in addition to the total amount that was already due to the account holder, all costs with fines, protests and expenses to legally recover the missing amounts must be borne exclusively by the bank.”
The attorney recommends contacting customer service and your account manager in writing. This is a necessary protocol to escalate the complaint to the Central Bank. In addition, the so-called made may justify a claim for compensation for moral damage if the customer suffers losses.