32.4.1. Introduction
The Brazilian State recognized the need for legal protection of the consumer based on the 1988 Federal Constitution, which, by ensuring fundamental rights, determined that “the State shall promote consumer protection, pursuant to the law” since it was verified that consumers, as a rule, are in a condition of vulnerability in relation to suppliers, largely due to the dynamics of the contemporary market, characterized by a growing number of products and services that impose speed in mass agreements, fundamentally, through adhesion contracts.
Therefore, the Consumer Protection Code was created in order to provide consumers with mechanisms that allow rebalancing the relationship maintained with suppliers, always seeking to reconcile the operative principle, which is based on the premise that the Judiciary (judges) can only decide in accordance with the laws established in the Brazilian legal system, and the balance of the parties.
What was sought through consumer protection legislation, based on the theory of quality, according to which the law imposes a duty on the entire chain of suppliers to ensure the quality of the products that are placed on the market and the services that are provided1, was to use all efforts to ensure that existing risks remain within a reasonable limit, that they do not threaten social security. This, in fact, is the function of law, which, not having enough strength to entirely eliminate risks, seeks to control them, within a margin that it considers reasonable for survival of the social body.
Thinking about that, the lawmakers listed a series of situations that, because they cause damage to consumers, shall be indemnified by the supplier, usually in cash – the so-called civil liability.
32.4.2. Strict Liability of Suppliers as a Rule of the Consumer Protection Code
At this point, it is important to make a brief, but important caveat, with respect to one of the main differences between the civil liability provided for in the Civil Code and that provided for in the Consumer Protection Code. As for the second legal system – which is the subject matter of this article –suppliers shall always be strictly liable, i.e., their liability does not depend on proof of fault of the agent causing the damage.
One of the grounds for the adoption of strict liability in consumerist legislation relates to the theory of risk of the enterprise, which is based on the premise that every supplier is obliged to redress any damage caused by goods or services it may supply, considering its activity is subject to create risks to consumers, and it is required to provide only quality products or services, in order to guarantee the health of consumers, under penalty of being liable to indemnify any damage caused.
Therefore, the supplier shall be liable for situations in which one of the events of consumption accident occur, resulting from some type of defect in the product or provision of services, thus aiming to repair the offense to the physical and psychological safety of consumers.
1Regarding this subject, the jurists add that “the CDC imposes a theory of quality: the products and services placed on the market by suppliers shall have a ‘quality-safety’ and a ‘quality-adequacy’“. (BENJAMIM, Antonio Herman V.; MARQUES, Claudia Lima; MIRAGEM, Bruno. Comentários ao Código de Defesa do Consumidor, 4th revised, updated, and expanded edition – São Paulo: Editora Revista dos Tribunais, 2013.)
32.4.3. Exclusions from the Supplier’s Liability and Subjective Liability of the Self-Employed Professionals.
Irrespective of establishment of strict liability within the scope of consumer relations, we note that the Consumer Protection Code provides on events that exclude supplier liability, to wit: (i) if the supplier proves that it has not placed the product on the market2, (ii) that even having placed the product on the market or provided the service, the defect pointed out does not exist3 and (iii) the resulting damage occurred due to the exclusive fault of the victim or a third party4.
It is also worth noting that strict liability, i.e., that which is independent of proof of fault, does not apply to self-employed professionals, as set forth in art. 14, paragraph 4 of the Consumer Protection Code.
And this aspect is justified by the fact that, with the exception of self-employed professionals, the strict liability of other suppliers is characterized because they undertake to achieve a certain result or to transmit a product with certain characteristics of quality, quantity, etc.
In the obligations of result, the debtor (supplier) agrees and the creditor can demand achievement of that expected result, under penalty of considering that the obligation was defaulted. Hence, the fault is of little interest. What is of interest is the non-occurrence of the promised and agreed result.
With regard to self-employed professionals, as a rule, their obligation is an obligation of means and not of result. It is expected, therefore, that the professional adopts all precautions and performs the obligation assumed with the utmost skill, prudence, and diligence. And only based on proof that a self-employed professional acted with fault or intent and the respective causal link with the damage claimed by the consumer, his or her liability can be considered.
32.4.4. Civil Liability of Suppliers in the person of their partners, managers, or directors and officers. Piercing of the Corporate Veil.
The Brazilian consumer legislation also provides for a list of situations in which suppliers, in the person of their members, managers, or directors and officers, are also liable in court for damages caused to consumers, through the so-called piercing of the corporate veil, where the individuals responsible for the companies become defendants in the claim, being jointly and severally liable for all damages caused – and, consequently, under the civil law, their assets may also be affected to cover the indemnities due to consumers harmed.
Still in this respect, and considering that the payment of damages to the consumer is of social interest and to the extent that the Judiciary is seen as an agent for reducing the inherent vulnerability of consumers, judges may pierce the corporate veil on their own initiative, i.e., regardless of the parties’ express request, if one of the situations provided for in this special legislation occurs.
Also for this reason – the consumer’s indemnification being in the social interest –, once the CDC applies to the case, the piercing of the corporate veil will be broader, i.e., it may occur in a series of situations that, in other legal systems, such as the Civil Code itself, would not be sufficient to reach the personal assets of members and the like.
Therefore, we note that the consumer legislation provides that in the event of [i] abuse of rights; [ii] excess of authority; [iii] violation of the law; [iv] unlawful fact or act; [v] violation of the Bylaws or articles of association, or [vi] insolvency, dissolution, or inactivity of the company (if caused by mismanagement acts), the members, managers, or directors and officers may be included as defendants in the claim.
32.4.5. Criminal Liability of Suppliers in the person of their members, managers, or directors and officers. Piercing of the Corporate Veil.
Notwithstanding the above, the Consumer Protection Code also provides for events of criminal liability of suppliers, defining various conducts as criminal offenses against consumers.
It is worth mentioning that there are provisions for crimes against consumer relations in other laws, such as the Criminal Code itself, which defines as a crime, in its chapter on crimes against the public health, the conduct of anyone who manufactures, sells, displays for sale, has in deposit to sell or, in any way, deliver for consumption a thing or substance that is harmful to health, even if not designed as food or for medicinal purposes.
The definition of these conducts as a crime aims to protect legal interests that are classified as collective or diffuse in nature, such as life, public health, the popular economy, and bodily integrity. Crimes of this nature contemplate an absolute presumption of danger, that is, there is no need to prove that the agent’s conduct effectively jeopardized the protected legal interest in order for the conduct to fall under the definition of a crime.
Therefore, as these are crimes against life and consumer safety, the lawmakers stated that this type of conduct deserved a more severe penalty, demanding state intervention to curb the commission thereof, and for that reason they are provided both in the CDC and in the Criminal Code itself.
Therefore, in these crimes against consumer relations, the agent’s conduct, per se, is capable of jeopardizing the legal interest protected by the definition of crime, that is, there is an absolute presumption of danger, with no need for effective proof that the agent’s action jeopardized the protected legal interest.
In view of that, the consumer legislation expressly establishes the possibility of holding members, directors and officers, and managers of companies liable, in the expectation that, therefore, the precautions for inhibiting such criminal conduct will be enhanced.
It is important to point out that in order to hold individuals liable under the criminal law, whether these individuals are members, officers, directors, or managers, it is not sufficient that the agent merely holds a management position in the company, as it is necessary that such agent has not only caused the result, but has also acted with the subjective element of intent or fault, given that criminal liability is subjective.
In this area, we note that that the consumer legislation is, in general, severe in providing for punishments to suppliers of products and services in cases of damage caused to consumers, both under the civil and criminal law, it being understood that the members, managers, and directors and officers may be held liable in both spheres.
Therefore, we conclude that the with regard to the protection of consumer rights, the Brazilian legal system proves to be quite broad and able to curb under the civil and criminal law harmful conducts committed by suppliers. The Consumer Protection Code, which is the main law to balance consumer relations and because it is a legal microsystem, includes all mechanisms required to determine effectiveness thereof, including the criminal liability of individuals who “hide” behind the veil of a legal entity.
2art. 12, paragraph 3, I.
3art. 12, paragraph 3, II and 14, paragraph 3, I.
4art. 12, paragraph 3, III and 14, paragraph 3, II
Authors: Daniel Marcus, Marina Bianchi Petecof, Fabiana Toledo
Schalch Sociedade de Advogados
Avenida Faria Lima, 4509, Itaim Bibi
CEP: 04538-133 – São Paulo/SP
Phone: +55 (11) 3889-8996
E-mail: [email protected]
Internet: www.ssaadv.com.br