32.4.1. Introduction
The Brazilian State recognized the need for legal protection of consumers starting with the Federal Constitution of 1988, which, by ensuring fundamental rights, established that “the State shall promote, as provided by law, consumer protection” (art. 5, item XXXII of the Brazilian Federal Constitution), given that consumers are generally in a position of vulnerability in relation to suppliers. This vulnerability arises largely due to the dynamics of the modern market, characterized by an increasing number of products and services, which imposes speed in mass contracting, mainly through adhesion contracts.
Thus, the Consumer Protection Code was created with the aim of providing mechanisms to consumers that allow for the rebalancing of the relationship with suppliers, always seeking to reconcile the principle of legality – a typical principle of civil law systems, based on the premise that the Judiciary Branch (judges) may only decide in accordance with the laws codified in the Brazilian legal system – with the need to ensure balance between the parties.
Currently, the regime established by the Consumer Protection Code applies to both natural and legal persons when they are the end users of the products or services acquired (as per article 4 of the Consumer Protection Code). Regarding the legal entities, in cases where they are not the final recipients, court precedents (especially from the Superior Court of Justice3) has adopted the so-called mitigated finalistic theory, which provides that, even if a company is not the final recipient, the Consumer Protection Code may still apply if the company can demonstrate a situation of vulnerability in relation to the supplier. The objective of consumer protection legislation is to make every effort to ensure that existing risks remain within a reasonable limit, so as not to endanger social safety. Indeed, this is the role of law: since it does not have the power to completely eliminate risks, it seeks to control them within a margin considered reasonable for the survival of the social body. This purpose is particularly evident in the so-called theory of quality, under which the law imposes on the entire supply chain a duty to ensure the quality of the products placed on the market and of the services provided1.
With this in mind, lawmakers listed a series of situations that, when causing harm to the consumer, must be compensated by the supplier, usually in monetary terms – under what is known as civil liability.
32.4.2. Strict Liability of Suppliers as a General Rule under the Consumer Protection Code
At this point, it is important to make a brief but significant distinction between one of the main differences between civil liability as provided under the Civil Code and that established under the Consumer Protection Code. With regard to the latter – which is the focus of this article – the supplier’s liability is always strict, that is, it does not require proof of fault on the part of the agent who caused the harm (as established in articles 12 and 14 of the Consumer Protection Code).
One of the foundations for adopting strict liability in consumer legislation is related to the theory of enterprise risk2, which is based on the premise that every supplier is obligated to compensate for any damages caused by goods or services they provide, since their activity is naturally subject to creating risks to consumers. Therefore, it is their duty to offer only products or services that meet quality standards, in order to safeguard consumer health, under penalty of having to compensate for any resulting harm.
Thus, the supplier will be legally liable in cases where a consumer accident occurs, arising from some kind of defect in the product or the provision of services, thereby aiming to repair any harm caused to the physical and/or psychological well-being of the consumer.
1 Regarding this topic, opinion of jurists adds that: “the Consumer Protection Code imposes a theory of quality: the products and services placed on the market by suppliers must ensure both ‘safety-quality’ and ‘adequacy-quality’.” (BENJAMIN, Antonio Herman V.; MARQUES, Claudia Lima; MIRAGEM, Bruno. Comentários ao Código de Defesa do Consumidor, 4th ed., revised, updated and expanded – São Paulo: Editora Revista dos Tribunais, 2013.)
2 As explained in legal doctrine: “In consumer relations, risk is based on the idea of ‘risk-benefit’, since the supplier—for example, the manufacturer—derives economic profit from the commercialization of its products or services. Therefore, it must also bear all risks arising from the consumption of those goods.” KHOURI, Paulo R. Roque A. Direito do consumidor: contratos, responsabilidade civil e defesa do consumidor em juízo, 7th ed. – São Paulo: Atlas, 2021.
3 As an example, the following precedent is pointed out: STJ – AgInt no AREsp: 1076242 SP 2017/0068623-3, Reporting Justice: Justice ANTONIO CARLOS FERREIRA, Date of Judgment: 08/08/2017, T4 – FOURTH PANEL, Date of Publication: DJe 8/16/2017
32.4.3. Exemptions from Supplier Liability and Subjective Liability of Liberal Professionals.
Despite the codification of strict liability within consumer relations, it is important to highlight that the Consumer Protection Code provides for specific exemptions from supplier liability, namely: (i) if the supplier proves that the product was not placed on the market2, (ii) that, although the product was placed on the market or the service was provided, the alleged defect does not exist3 and (iii) that the damage was caused exclusively by the consumer or by a third party4.
It is also worth noting that strict liability, that is, liability that does not require proof of fault, does not apply to liberal professionals, as set forth in § 4 of art. 14 of the Consumer Protection Code.
This distinction is justified by the fact that, with the exception of liberal professionals, the strict liability of other suppliers is based on their obligation to achieve a specific result or to deliver a product with certain specifications of quality, quantity, etc.
Thus, in result-based obligations, the debtor (supplier) commits to a specific outcome, and the creditor (consumer) has the right to demand that outcome, under penalty of breach of contract. In such cases, fault is of little relevance; what matters is the failure to deliver the promised and contracted result.
In contrast, for liberal professionals, the obligation is generally one of means, not of result. It is therefore expected that the professional exercise the assumed duty with the highest degree of skill, prudence, and diligence. Only when it is proven that the liberal professional acted with fault or intent, and that there is a causal link between the professional’s conduct and the damage claimed by the consumer, can liability be considered.
2 art. 12, paragraph 3, I.
3 art. 12, paragraph 3, II and 14, paragraph 3, I.
4 art. 12, paragraph 3, III and 14, paragraph 3, II
32.4.4. Civil Liability of the Supplier Through Its Partners, Administrators, or Officers. Disregard of Legal Entity.
Brazilian consumer legislation also establishes a set of situations in which suppliers, through their partners, administrators, or officers, may be held personally liable in court for damages caused to consumers, through the legal mechanism known as disregard of legal entity. This legal instrument allows individuals and/or legal entities who are partners of the company to be included as defendants in judicial proceedings, and held jointly and severally liable for all damages caused (as a consequence, the personal assets of the company’s partners may also be targeted to ensure the fulfillment of compensation owed to affected consumers).
In this context, it is important to emphasize that, unlike the general regime under the Civil Code, piercing the corporate veil under the Consumer Protection Code is subject to less stringent requirements. While the Civil Code requires a clear demonstration of abuse of the corporate entity (that is, deviation of purpose or commingling of assets (as set forth in Article 50 of the Civil Code), the Consumer Protection Code does not require such proof. Under this regime, the corporate veil may be pierced “whenever the legal entity’s personality constitutes, in any way, an obstacle to the compensation of damages caused to consumers”. (art. 28, §5 of the Consumer Protection Code).
Thus, the legal provision of art. 28, §5 of the Consumer Protection Code implies that, if the company does not have sufficient assets to cover the compensation owed to consumers, its corporate personality may be disregarded (through a specific procedural incident1), allowing consumers to pursue compensation directly from the company’s partners, regardless of any proven fraudulent conduct on their part.
Even in the absence of the company’s insolvency, the theory of piercing the corporate veil under consumer law is also applicable in cases where there is evidence of: [i] abuse of rights; [ii] excess of power; [iii] violation of the law; [iv] unlawful act or conduct; [v] violation of the company’s bylaws or articles of incorporation (as provided in art.28 of the Consumer Protection Code).
Therefore, it is evident that consumer protection under Brazilian law extends beyond abstract and contractual safeguards, offering concrete mechanisms to ensure the effective enforcement of consumers’ pecuniary rights against suppliers, one of which is the disregard of legal entity.
1 Sobre o tema: THEODORO JÚNIOR, Humberto. Curso de direito processual civil – 66. ed., revised, updated and expanded – Rio de Janeiro: Forense, 2025.page 359
32.4.5. Criminal Liability of the Supplier Through Its Partners, Administrators, or Officers. Disregard of Legal Entity.
Notwithstanding what has been presented so far, the Consumer Protection Code also establishes scenarios in which suppliers may be held criminally liable, setting forth various behaviors classified as criminal offenses against consumers.
From a broader legal perspective, the Federal Constitution provides for the possibility of criminal liability of legal entities in two provisions (art. 225, §3 and art. 173, §5). However, although these provisions allow for liability in cases involving offenses against the economic and financial order and against popular economy, they lack proper regulation regarding enforcement and do not extend specifically to the consumer protection context.
In this regard, Tartuce emphasizes that the Federal Constitution does not expressly recognize criminal liability of legal entities for crimes against consumer relations. This matter has already been addressed by the Federal Supreme Court1, which held that criminal liability in such cases “can only be attributed to a natural person – an individual – who, as a representative of the legal entity, acts on its behalf in the commission of the criminal offense or contributes to its execution”.
It is in this context of a lack of specific regulations that the Consumer Protection Code plays an important, albeit not exclusive, role in regulating the scenarios of criminal liability of suppliers.
From this perspective, it is worth noting that there are also criminal provisions related to consumer relations in other legal instruments, such as the Brazilian Criminal Code, which, for instance, criminalizes the conduct of anyone who “manufactures, sells, offers for sale, holds in stock for sale, or in any way distributes for consumption any item or substance harmful to health, even if not intended for food or medicinal purposes” (art. 278 of the Criminal Code).
In short, the criminalization of such conduct aims to protect legal interests classified as collective or diffuse in nature, such as: life, public health, popular economy, and physical integrity.
Therefore, given that these are crimes against life and consumer safety, the legislator deemed such conduct worthy of more severe penalties, requiring State intervention to prevent and punish such practices. For this reason, such offenses are addressed both in the CDC and in the Criminal Code itself.
As such, in criminal offenses committed within the scope of consumer relations, the agent’s conduct alone is sufficient to endanger the legal interest protected by the criminal statute. In other words, there is an absolute presumption of danger, and it is not necessary to prove that the agent’s action actually endangered the protected interest, let alone that it caused actual harm to any individual.
In this sense, the consumer protection legislation expressly provides for the possibility of holding the supplier personally liable in the figure of the company’s partners, officers, or administrators, with the aim of increasing due diligence to prevent the commission of such criminal acts.
Before addressing the specific issue of criminal liability of partners, officers, and administrators, it is important to highlight that the Consumer Protection Code outlines various criminal offenses applicable to suppliers in specific provisions. By way of example, art. 63 establishes the supplier’s duty to clearly disclose any important information regarding the harmful or dangerous nature of the offered product or service, in order to avoid causing harm to consumers.
In another example, art. 69 requires suppliers to maintain a database to substantiate any advertising they produce; failure to do so constitutes a criminal offense punishable by detention.
More specifically, the Consumer Protection Code extends, albeit briefly, criminal liability to natural persons who are part of the legal entity classified as a “supplier”. In this regard, it is essential to clarify that in order to impose criminal liability on a natural person – whether a partner, director, administrator, or manager—it is not enough for the person to simply hold a leadership position within the company. It is also necessary that they have directly contributed to the criminal conduct and acted with a subjective element of intent or fault, as criminal liability is inherently personal.
This is precisely the premise addressed by art. 75 of the CDC, which establishes that the director, administrator, or manager of the legal entity may be held criminally liable, to the extent of their culpability, if they “promote, permit, or in any way approve the supply, offer, display for sale, or storage of products, or the offer and provision of services under conditions prohibited by the Code.”
This provision mirrors, to some extent, the language of art. 292, must be interpreted restrictively, and as Luiz Regis Prado emphasizes: “a particular act can only be attributed to a director, administrator, or manager when there is evidence that they acted with intent or fault”
In this context, it can be seen that consumer protection legislation is, in general, strict in prescribing penalties for suppliers of products and services in cases of harm caused to consumers, both in civil and criminal spheres. In both areas, there may be liability imposed on partners, administrators, and officers.
It can therefore be concluded that the Brazilian legal system, with regard to the protection of consumer rights, is quite comprehensive and capable of curbing harmful conduct by suppliers through both civil and criminal means. The Consumer Defense Code, the main legal instrument aimed at ensuring balance in consumer relations and, being a legal microsystem, includes all the necessary mechanisms to ensure its effectiveness, including the criminal liability of individuals who “hide” behind the legal entity.
Authors: Daniel Marcus, Ian Silva de Andrade e Thaisa Torres de Souza
Schalch Sociedade de Advogados
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