A vulnerabilidade do consumidor diante da exigência de prévia tentativa de solução extrajudicial da controvérsia: do IRDR Tema 91 do TJMG ao Tema Repetitivo 1.396 do STJ.

Abstract

This study examines the requirement of a prior attempt at the extrajudicial resolution of disputes in consumer performance claims, based on the legal thesis established in IRDR Theme 91 of the Court of Justice of the State of Minas Gerais and its subsequent submission to Repetitive Theme 1,396 before the Superior Court of Justice. The research is grounded in the context of judicial overload and the consolidation of mechanisms for judicial standardization, focusing on the tension between the rationalization of judicial activity, the constitutional guarantee of access to justice, and consumer protection. The objective is to assess whether this requirement is compatible with consumer vulnerability, considering both the normative framework of consumer protection and the factual-structural characteristics of contemporary consumer relations. The study adopts a legal-dogmatic approach, with qualitative analysis and a predominantly deductive method, developed through a case study of IRDR Theme 91, as well as bibliographical, legislative, documentary, and case law research, complemented by the analysis of secondary data from official sources. The findings indicate that the requirement is incompatible with consumer vulnerability, as it shifts to the vulnerable party the burden of first seeking the supplier and documenting the supplier's refusal to satisfy the claim. Furthermore, the measure transfers to consumers the costs of rationalizing the justice system without adequately addressing the structural causes of mass litigation, particularly the conduct of repeat players, recurring unlawful business practices, and the limited effectiveness of administrative dispute resolution mechanisms.