Distribuição de prejuízos e imputação de responsabilidades resultantes das operações não autorizadas no homebanking

Uma análise crítica sobre o regime do ónus da prova, o (des)acerto da opção legislativa e os posicionamentos recentes da jurisprudência portuguesa

Abstract

In a market economy where, due to technological developments and regulatory pressure to make payments traceable, most payments are made using bank money, it is difficult to underestimate the importance of payment services from a socio-economic point of view. Given the enormous practical relevance and undeniable dogmatic interest of these issues, this study will analyse the legal regime applicable to payment transactions executed by PSPs but not authorised by the respective users and holders of the debited accounts. In the typical situation, the Bank and the user are bound by a long-term contractual relationship, under which the former executes a payment transaction on behalf of and in the name of the latter, in response to an order that appears to have been issued by the legitimate account holder, but which later turns out not to have been legitimately authorised. What will be discussed, therefore, are the grounds for the parties' claims, the distribution of losses and the respective attribution of liability, criticising, above all (drawing on Portuguese case law), the standard of gross negligence.