Fernando Capez: Caixa has a duty to try to find the winner of R$ 162 million.

On Wednesday (31), the second winner of the most coveted lottery among Brazilians, the Mega da Virada, failed to collect his share of the prize from Caixa Econômica Federal; an amount equivalent to R$ 162,6 million. This situation, besides being intriguing, raises some questions: Did the winner die? Did he lose the ticket? Did he not know he had won?

Well, regardless of the reason, it seems unacceptable, given today's technologies, for the bank responsible for the claim to refuse to locate the beneficiary, setting a fixed deadline for withdrawing the amount.

The rules used by Caixa for the delivery of the prize are based on article 17 of decree-law nº 204/1967 (before the advent of the internet, therefore), which establishes that the prize will expire in 90 days, counted from the date of its extraction. However, this provision is found in a normative instrument that is no longer in effect in the Brazilian legal system and was enacted before the 1988 Federal Constitution and the Consumer Protection Code (CDC).

As is well known, in Brazil, all sub-constitutional norms must be compatible with the Constitution, and in case of any conflict, they must be removed from the legal system or interpreted in accordance with the Constitution. Unless I am mistaken, this is what should happen in the present case!

The constitutional text enshrines in its article 5, XXXII, the defense of consumer interests as a fundamental guarantee of the citizen. In turn, the Consumer Protection Code, in addition to recognizing the vulnerability of the consumer in the consumer market, established that transparency and good faith must permeate the consumer/supplier relationship (article 4, "Caput", I) and that information is a basic right of the consumer (article 6, III).

In accordance with the system established by the Constitution and consolidated in the Consumer Protection Code (CDC), since the winning bet was made electronically through prior registration, Caixa Econômica Federal (CEF) could not exempt itself from its duty to attempt to contact the winner or their heirs, as their identification is entirely possible.

It is undisputed that the prize winner and CEF (Caixa Econômica Federal) established a consumer relationship, which, in turn, is broadly protected by the Constitution and the Consumer Protection Code (CDC) in order to protect the weaker party in this relationship, the consumer. In this case, we understand that the law imposes on Caixa the duty to exhaust all possible means to contact the winner, only then beginning the 90-day period for claiming the prize.

(*) Fernando Capez is a Public Prosecutor for the Public Ministry of São Paulo, holds a doctorate in law, and is the executive director of Procon-SP. He published the above article in the 'Trends / Debates' section of Folha de S.Paulo.