Highlights of Brazil

Authors: Lautenschleger, Romeiro e Iwamizu

The Consumer Law is a pretty new branch of the Brazilian Law. It has been in force since Law 8078 was enacted in 1990 (Consumer Code - CDC). Besides aiming to restrain abuses against those who are in a situation of evident "disadvantage" of the consumer itself, the CDC also values for the avoidance of abuses that may affect the consumer market, such as unfair competition in the business practices and the streamlining of public services. The CDC also stipulates criminal penalties, in some specific cases.

The consumer relation, as considered in the Brazilian Law, is bipolar: formed by a consumer and a supplier, both linked by a common object that will necessarily be a service or a product. These three elements must necessarily coexist, under penalty of not being applied the Consumer Protection Code to the case, but the common law, which governs the relations between common individuals. According to the CDC, the consumer is classified as any final addressee which purchases goods or hire services (art. 2 of the CDC). The concept of supplier, product and service are explicitly defined in the Article 3 of the CDC. Thus, the supplier is reputable as any "person or legal entity, public or private, domestic or foreign, as well as the depersonalized entities carrying out the activities of production , assembly, creation, construction, transformation, import, export, distribution or commercialization of products or services". Product is "any movable or immovable asset, material or immaterial", while service is "any activity provided in the consumer market, with remuneration, including those of banking, financial, credit and insurance nature, except those resulting from labor relations". It is also important to clarify that the financial institutions must also comply with the principles and regulations of the Consumer Protection Code. This perception was confirmed recently by the Federal Supreme Court (STF), according to Informative no. 452, 430, 425 and 417 and the decision rendered in the Direct Unconstitutionality Action ADI 2.591/DF of 06/07/2006. Therefore, it is consolidated that the "consumer" for the purposes of the Consumer Protection Code, is any person or legal entity that uses, as final addressee, banking, financial and credit services.

Consumers are protected against vices and acts of consumption (Articles 12, 14, 18 and 20 of CDC), that is, against products or services that cause damages to the consumer himself or others when using it, or those which possibly have not functioned as they should. The consumerist legislation also provides the following mechanisms for the effective judicial protection of the consumer in order to make their defense easier: the 'reversal of the burden of proof', the 'objective liability', 'compensation of patrimonial and moral damages', among others.

One of the most important innovations introduced by the CDC refers to the objective liability of the supplier (Article 12 of CDC). It explains that contrary to what the civil law requires when it claims the need for proof of guilt in the relation between consumers, such proof may be fully dismissed, it is sufficient the existence of actual damage to the victim. That is, by means of the objective liability, the supplier (be it the producer, distributor, dealer etc.) is held liable for the damage caused to the consumer regardless of fault. This usually occurs because the consumer often suffers of lack of defense conditions, due to economic and technical reasons or even given its position in the court relation. The objective liability exists to make the relation more equal in consideration of the consumer's disadvantage.

Another important point constant in the CDC is the duty of the supplier to inform the consumers about certain data of the product or service, such as features, quality, quantity, composition etc. If the supplier fails to proceed like this voluntarily, so will determine the judge or the administrative authority, regardless of the obligation to repair and of administrative and criminal repression. This duty to report is mandatory and must necessarily be done in Portuguese, even for products intended for export.

One theme that is also worth highlighting relates to the need for the product to be accompanied by the instruction manual and the warranty certificate, both written in a clear and simple way. These items are mandatory, as forecast in the art. 50, CDC, which must be provided by the supplier for both products commercialized in the country, as for those produced for export. Thus, the consumer will have the opportunity to take prior knowledge of the product content and handling. If these items are not present, then consumer shall not be subject to the contract provisions (Article 46 of the CDC).

According to the CDC, consumers may generally exercise their right to claim for defects in products and services in the following cases: 1 - Within 30 (thirty) days in case of manifest defect and 2 - Within 90 (ninety) days in case of latent defect. To exercise the right against damage, that is, because of the product or service, the consumer has a term of 5 years to do it.

It is recommended that any dissatisfaction in the consumption relation is solved directly between the parties (consumer-supplier relation). If the parties could not reach an agreement it will be possible to register a complaint before the administrative organs, such as state and federal protection associations etc., which are very active in the country and often serve as mediators, or when the question involves a large volume of the market, assess the collective actions for the benefit of the community of the affected consumers.

The CDC also empowers the consumers with the use of collective actions and public actions (Law 7347/85) to defend the interests and rights of the consumers as collectiveness (article 81 of CDC). This statement has a legal foundation in the Article 91 of the CDC, which provides to all legitimate parties referred in the Article 87 of the CDC (Public Prosecutor Office, Federal Government, State, municipalities, entities, organizations and agencies of the public authorities, directly or indirectly and associations) "(...) to file, on its own name and in the interests of the victims or their successors, a civil collective action of liability for the damages individually suffered."

The consumer defense does not endure just in punishing those who violate the rights of the consumers and those who practice tort, but also seeks to aware the consumers about their rights and duties, without forgetting to also clarify the manufacturers, suppliers and service providers about their obligations, demonstrating that once acting in line with the underlying principles of the consumer law, they, at the same time, respect the consumer and expand its consuming market, contributing to the development of the country.