1 – Introduction
The Brazilian State acknowledged the need for legal protection of consumers as from the 1988 Brazilian Federal Constitution, which guaranteed the fundamental rights and determined that “the State shall promote, pursuant to the law, the consumer protection”, since it was noted that consumers, as a rule, are vulnerable if compared to the supplier, due, to a large extent, to the dynamics of the contemporary market, characterized by a growing number of products and services.
Therefore, the Consumer Protection Code was created in order to grant the consumers mechanisms that permit a rebalancing of their relationship with the supplier, always seeking to harmonize the principle pursuant to which the Judicial Branch (judges) may only decide in accordance with positive laws of the Brazilian legal system, and the balance between the parties.
Based on the quality doctrine, pursuant to which the law imposes on the entire chain of suppliers a duty of quality of the products offered in the market and of the services provided1, the consumer protection legislation sought to use all efforts to ensure that the existing risks are maintained within a reasonable limit that does not threat the social security. This is actually the purpose of the Law, which has insufficient strength to completely eliminate the risks, but tries to control them, within a margin deemed reasonable for survival of the social body.
Having this in mind, the lawmaker listed a series of situations that cause losses to the consumer and, therefore, must be indemnified by the supplier, usually in cash – the so-called civil liability.
2 – Strict Liability of the Suppliers as a Rule in the Consumer Protection Code
At this point, it is important to note one of the main differences between the civil liability contemplated in the Civil Code and that contemplated in the Consumer Protection Code. With respect to the second legal system – the subject matter of this article –, the supplier shall always have strict liability, i.e., irrespective of proof of fault of the agent that has caused the damage.
One of the grounds for the adoption of strict liability in the consumer legislation is based on the theory of risk of the venture, which is based on the premise that all suppliers are required to repair any damage caused by goods or services it supplies, since their activities are subject to creating risks to the consumers, and they are required to supply only quality products or services, in order to guarantee the consumer health, under penalty of being liable for indemnifying any damage caused.
Therefore, the supplier shall be legally liable for situations representing one of the events of consumption accident, resulting from any kind of defect in the product or provision of service, for it to redress the offense to the physical and psychological safety of the consumers.
3 -Exclusions of Liability of the Supplier and Subjective Liability of Self-Employed Professionals
However, and irrespective of the statutory provision on strict liability within the scope of consumer relations, we note that the Consumer Protection Code lists events of exclusion of liability of the supplier, which are: (i) if the supplier proves that it has not offered the product in the market2, (ii) that even having offered the product in the market or supplied the service, the alleged defect does not exist3, or also, (iii) that the resulting damage occurred due to the exclusive fault of the victim or of a third party4.
In addition, we note that the strict liability, i.e., the liability that waives proof of fault, does not apply to self-employed professionals, as provided in paragraph 4 of article 14 of the Consumer Protection Code.
The reason for that is that except for self-employed professionals, the strict liability of the other suppliers is characterized because they agree to reach a certain result or to transmit a product with certain characteristics with respect to quality, quantity etc.
In the obligations of result, the debtor (supplier) agrees and the creditor may require that the expected result be reached, under penalty of the obligation being deemed defaulted. For that reason, the fault is not important. What is important is the non-occurrence of the promised and agreed result.
With respect to self-employed professionals, as a rule they assume obligations of means, and not of result. Therefore, the professional is expected to adopt all cautions and perform the obligation assumed with the utmost expertise, caution and care. And only after proof that the self-employed professional acted with fault or intent and of the respective causation, his or her liability may be cogitated.
4 – Civil Liability of the Supplier in the person of its members, managers or directors. Piercing of the Corporate Veil
However, the Brazilian consumer legislation also sets forth a list of situations in which the suppliers, in the person of their members, managers or directors, are also liable in court for damages caused to consumers, by means of the so-called piercing of the corporate veil, where all individuals responsible for the companies become defendants in the lawsuit, and are joint and severally liable for all damages caused – and, as a consequence, within the scope of the civil law, their property may also be reached to pay the indemnifications due to the affected consumers.
Also in this respect, considering that the redress of the consumer is of social interest, and to the extent that the Judiciary is deemed an agent for reduction of the vulnerability inherent in the consumers, the judges may promote the piercing of the corporate veil at their own initiative, i.e., irrespective of an express claim by the parties, in case they note the existence of any of the situations set forth in that special legislation.
Also for that reason – because the redress of the consumer is of social interest – once the CDC applies to the case, the piercing of the corporate veil occurs in a broader manner, i.e., it may occur in a series of situations that, in other legal systems, as the Civil Code itself, would not be sufficient to reach personal assets of the members and similar persons.
In these terms, we note that the consumer legislation sets forth that in the event of [i] abuse of right; [ii] excess of power; [iii] violation of law; [iv] wrongful fact or act; [v] violation of the By-Laws or articles of association or [vi] insolvency, closing or inactivity of the company (if caused by mismanagement), the members, managers or directors may be included as defendants in the lawsuit.
5 – Criminal Liability of the Supplier in the person of its members, managers or directors. Piercing of the Corporate Veil
Irrespective of the above, the Consumer Protection Code also provides events of criminal liability of the suppliers, establishing twelve conducts as criminal offenses against the consumers.
We note that other laws define crimes against consumer relations, such as, for example, the Penal Code itself, which defines as a crime, in the chapter crimes against the public health, the conduct of whomever manufactures, sells, displays for sale, has in storage for sale or otherwise delivers for consumption a thing or substance that is harmful to health, even if it is not designed for consumption as food or for medicinal purposes.
The definition of these conducts as a crime aims at protecting the legal assets classified as collective or diffuse in nature, such as the life, public health, popular economy and physical integrity. The crimes of this nature contemplate an absolute presumption of danger, i.e., it is not necessary to prove that the conduct of the agent has actually jeopardized the protected legal asset for definition of the conduct as a crime.
Therefore, since they are crimes against the life and safety of consumers, the lawmaker understood that this type of conduct deserved a more severe punishment, requiring the government intervention to restrain its practice and, for that reason, they are contained both in the CDC and in the Penal Code itself.
Therefore, in these crimes against the consumer relations, the conduct of the agent, alone, could jeopardize the legal asset protected by the definition of crime, i.e., there is an absolute presumption of danger, and it is not necessary to actually prove that the action of the agent jeopardized the legal asset protected.
Therefore, the consumer legislation expressly provides on the possibility of liability of the members, directors and managers of the companies, expecting, therefore, intensification of the measures to restrain these criminal conducts.
Please note that to attribute criminal liability to an individual, be it a member, officer, administrator or manager, it is not sufficient that the agent holds any office in the company’s executive board. It is necessary that such agent has not only caused the result, but also acted with the subjective element of intent or fault, since the criminal liability is a strict liability.
Thus, we note that the consumer legislation is, in general, severe when it establishes punishments to the suppliers of products and services in the event of damages caused to the consumer, both under the civil and under the criminal law, it being understood that the members, managers and directors may be held liable in both cases.
For that reason, we conclude that with respect to the defense of the rights of consumers, the Brazilian legal system is very broad and able to restrain, both under the civil and criminal law, harmful conducts in which the suppliers engage. The Consumer Protection Code, which is the main law created to balance the consumer relations, and since it is a legal microsystem, contemplates all mechanisms required to determine the effectiveness thereof, including the criminal liability of the individuals who “hide” behind the corporate veil.
1 – With respect to this issue, the books of authority add that “the CDC imposes a theory of quality: the products and services offered in the market by the suppliers shall have a ‘quality-security’ and a ‘quality-adequacy’“. (BENJAMIM, Antonio Herman V.; MARQUES, Claudia Lima; MIRAGEM, Bruno. Comentários ao Código de Defesa do Consumidor, 4th reviewed, updated and extended edition – São Paulo: Editora Revista dos Tribunais, 2013.)
2 – art. 12, § 3°, I.
3 – art. 12, § 3°, II e 14, § 3°, I.
4 – art. 12, § 3°, III e 14, § 3°, II.
Authors: Daniel Marcus, Marina Bianchi Petecof, Fabiana Toledo
Schalch Sociedade de Advogados
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