Plaidoyer for a “dynamic distribution of the burden of proof” and for the “spheres of risk theory” on the light of the recent Supreme Court´s decision, of 18/12/2013: the (admirable) “new world” on the homebanking?

Hugo Luz dos Santos

Keywords

Dynamic distribution of burden of proof; spheres of risk; consumer; homebanking; information gap; bounded rationality

Abstract

The present article intends to, on the light of the recent Supreme Court´s decision of 18/12/2013, emphasize the mobilization of the dynamic distribution of burden of proof theory within the homebanking´s range; specifically viewing, ultimately, the weakening of the burden of proof that is enshrined on the consumer ambit and the coetaneous rising of the burden of proofof bank entities (homebanking´s service provider).

In another scope, we look forward, likewise, to analyze the need to summon the sphere´s of risktheory, regarded as a complementary criteria of burden of proofand as a corollary of the well known dicothomy obligation of means/obligations of result, aiming to draw a line to what is meant to be a personal fact, which is enshrined on the sphere of riskof the bank entity, whom, by their turn, are obliged to a special duty of care in order to avoid any harm on the consumers patrimony.

This increase of burden of proof, which is due to be enshrined on the bank entity´s range, is arguably justified by the information gapthat separates the consumer (one shot player)and the bank entity (repeat player).