Consumer Law was consolidated in Brazilian Law with the enactment of Law 8.078/90 (Consumer Protection Code – “CDC”). In addition to aiming to prevent abuses against those who are in a situation of “disadvantage” and vulnerability, the Code also aims at protecting the consumer market, repressing unfair competition in business practices and streamlining public services, stipulating also criminal penalties in specific cases.
The consumer relation, as considered in Brazilian Law, is bipolar, formed by a consumer and a supplier, both linked by a common object which is, necessarily, a service or a product. These three elements must necessarily coexist, under penalty of the Consumer Protection Code not applying to the specific case, and instead only civil law, which governs the relations between private parties.
The CDC defines consumer as the final intended party that purchases goods or contracts services (Article 2 of the CDC). In regard to the supplier, product and service, Article 3 of the CDC defines them as:supplier is any “individual or legal entity, public or private, domestic or foreign, as well as depersonalized entities engaged in the activities of production, assembly, creation, construction, transformation, import, export, distribution or commercialization of products or services”. Product is “any movable or immovable good, material or immaterial”, while service is “any activity supplied in the consumer market, upon remuneration, including banking, financial, credit and insurance activities, except those that are supplied under labor agreements“.
It is important to observe that financial institutions must also comply with the Consumer Protection Code. This understanding was confirmed by the Federal Supreme Court (STF) in its Informative Acts 452, 430, 425 and 417 and in its ruling of the Unconstitutionality Claim ADI 2.591/DF of 06/07/2006. Therefore, it has adopted a consolidated understanding that the definition of “consumer” under the Consumer Protection Code covers any individual or legal entity that utilizes, as a final consumer, banking, financial and credit services.
Accordingly, the CDC has a broad coverage and guarantees that the consumer will be protected against consumption defects and incidents (Articles 12, 14, 18 and 20 of CDC), i.e. against products or services that cause damages to the consumer itself or others in the utilization thereof (product/service incidents) or that do not function properly, lowering the value of the product or service (product/service incidents). The consumer protection regulations also establish mechanisms for the effective judicial protection of the consumer in order to facilitate their defense, such as the ‘reversal of the burden of proof’, ‘strict sense liability’, ‘indemnification of patrimonial and moral damages’, among others.
Among the guarantees mentioned above the strict sense liability of the supplier (Article 12 of CDC) stands out. Contrary to civil law, which requires proof of fault, under consumer law the plain existence of damage effectively caused to the consumer suffices. This means that the supplier (whether it is a producer, distributor, dealer etc.) is accountable for the damage caused to the consumer irrespective of its fault, insofar as the consumer presumably lacks conditions to defend itself for economical or technical reasons, or even because it is the weaker party in a suit. Accordingly, strict sense liability intends to place the consumer and the supplier on a same level.
Another important aspect established in the CDC is the supplier’s obligation to provide to the consumer certain information on the product or service, such as its features, quality, quantity, composition, etc. If the supplier fails to voluntarily provide it, the judge or the administrative authority will order the supplier to do so, irrespective of the obligation to indemnify and of the administrative and criminal penalization. This obligation to inform is mandatory and the information must be necessarily provided in Portuguese, inclusively in regard to products that are intended for export.
Another aspect that should also be emphasized is the requirement for the product to be accompanied by an instructions manual, as well as a warranty certificate, both written in a clear and simple language, and also in Portuguese. These requirements are mandatory in accordance with Article 50 of the CDC, and such information must be provided by the supplier for products that are commercialized in Brazil and for products that are exported. With this material the consumer has the opportunity of acknowledging the product’s contents and handling information, and in the lack thereof, the contract that governs the consumer relation will not bind the consumer (Article 46 of the CDC).
According to the CDC, the consumer may, by rule, exercise its right to complain the defects found in products and services in the following cases: 1 – In up to 30 (thirty) days in case of visually perceivable defects and 2 – In up to 90 (ninety) days in case of non-apparent defects. The term to claim in court the damages suffered because of the defective product or service is 5 years (Articles 26 and 27 of the CDC). The consumer may also complain before administrative organs such as the state and federal consumer protection agencies (PROCON), which act in favor of the consumer and usually figure as mediators, or through class action lawsuits.
In this regard the CDC expressly authorizes consumers to adopt class action lawsuits and public lawsuits (Law 7.347/85) through which those who may do so (Article 82), to defend the interests and rights of the consumers as a collectivity (Article 81 et seq.) may file, in their own name and in the interests of the victims or their successors, a class action for indemnification of the damages that were individually suffered, in accordance with the Law.
Lautenschlager, Romeiro e Iwamizu Advogados
Av. Paulista, 1842, Torre Norte, 22º andar
01310-200 – São Paulo-SP
Phone: +55 (11) 2126 4600
Fax: +55 (11) 2126 4601
E-mail: [email protected]