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Date: October 20, 2020
Posted by: CPDMA Team

The new role of the merchant in the intermediation of the repair of products purchased by the consumer: an analysis of the new understanding of the STJ

Daily we are faced with new realities, and it is inconceivable that we are aware of the incessant flow of information and technological advances that society imposes on us. Just as the citizen cannot keep up with the pace imposed by the current modus operandi of postmodern society, the law is also unable to regulate the new needs that arise all the time.

The act of creating laws, constitutionally attributed to the Legislative Power, is notoriously a slow procedure that, by its very nature, cannot keep up with the accelerated pace of society's advances.

It is in this temporal gap that, on several occasions, the higher courts are provoked to give new contours or even new interpretations to the norm, so that the interpretive meaning attributed is in line with the reality of today's society, not allowing its obsolescence. 

When we deal with the Consumer Defense Code (CDC) - enacted exactly 30 years ago - there is a dynamic similar to the one mentioned above, in which the current social, informational and technological context has been significantly altered, giving rise to new interpretations beyond the formal literality of the law devices. Within this context of constant need to reinterpret and update the rules that the Superior Court of Justice (STJ) decided to change its understanding with respect to who can receive from the consumer purchased products that need to be repaired. 

Well, article 18 of the Consumer Protection Code provides that product suppliers are jointly and severally liable for the defects they present, so that, once the defect is found, the consumer can demand the replacement of the defective parts. 

In addition, paragraph 1 of article 18 establishes that if the defect is not remedied within 30 days, the consumer may demand one of the following three possibilities: a) replacement of the product by another of the same type; b) the refund of the amount paid; or c) the proportional reduction of the value. However, it is important to emphasize, the consumer is conditioned to give the supplier the opportunity to repair the product so that he enjoys the prerogatives of the first paragraph. 

Having made a brief summary of the article of law in question, it is worth pointing out the innovations brought by the recent understanding of the STJ. In practical terms, the reality was that, when a product defect was found, the consumer was responsible for forwarding the product to technical assistance – within the statute of limitations of 30 days for non-durable products and 90 days for durable products. It so happens that the STJ, through the judgment of Special Appeal No. 1,568,938, understood that the entire supply chain (manufacturer, distributor and trader) is jointly and severally liable for the guarantee of quality and suitability of the product to the consumer, in view of that everyone was responsible for making the product available on the market. 

Based on this notion, the STJ understood that it is the trader's obligation to receive products that are defective and to act as an intermediary in forwarding them to technical assistance, unlike what happened before, in which the consumer was responsible for this task. 

Thus, in the opinion of the Superior Court, this new dynamic offers the consumer the opportunity to choose which way will be less costly or embarrassing to exercise their right to have the purchased product repaired, either by taking it to technical assistance, to the manufacturer or directly to the merchant who sold him. 

In this way, the STJ reiterates the protective force that the consumer has in the Brazilian legal system, offering mechanisms that try to balance the vulnerability and hyposufficiency of the consumer in the face of large companies. 

Source: Felipe Meneghello Machado, lawyer for Cesar Peres Dulac Müller.

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