Many people have already encountered the following situation: they acquired a good through a contract, for example, a purchase and sale contract, and after some time they discovered that the object of this contract had a defect or vice - hidden at the time of purchase - that made it unfit for use or diminished its value. Cases of addictions in real estate or automobiles are quite recurrent. 

To regulate this situation, the Civil Code (CC) provides for redibition (hence the term redhibitory vice), which is the judicial annulment of the contract or a reduction in its price. Cases of redhibitory vice are characterized when an acquired good has its use compromised by a hidden defect, in such a way that, if it had been known previously by the person who acquired it, the deal would not have been carried out. 

In addition to the annulment of the contract, the CC provides in article 443 for compensation for damages. If the defect was already known by the person who transferred possession of the asset, the amount received must be refunded, plus damages; otherwise, the refund will only cover the amount received plus contract expenses. 

Of a much broader character, the Consumer Defense Code (CDC) represented a great evolution for consumer relations and expanded the range of possibilities for solving problems, including cases of redhibitory vices. The consumer protection law values “the guarantee of products and services with adequate standards of quality, safety, durability and performance”, as provided for in article 4, item II, subparagraph d. 

Since 1990, when the CDC was enacted, the institute of redhibitory vice has lost ground in the protection of consumer rights. The consumer code imposes broad liability on the supplier in the face of product or service defects, regardless of the conditions that the law requires for the recognition of the redhibitory defect - such as, for example, the existence of a contract or the fact that the defect is hidden and previous to the closing of the deal. 

However, the redhibitory addiction institute remains relevant in situations not covered by the CDC, such as transactions between companies (as long as they do not meet the code requirements to characterize a consumer relationship) and many businesses carried out between individuals. 

In several judgments, the Superior Court of Justice (STJ) has interpreted the provisions of the CC and CDC with regard to redhibitory vices. Follow some of the Court's pronouncements on the subject. 

Redhibitory addiction vs consent addiction 

The Third Panel of the STJ, when judging REsp 991,317, established the distinction between redhibitory vice and consent vice, arising from a substantial error. For Minister Nancy Andrighi, the appeal's rapporteur, the issue is delicate and prone to confusion, mainly due to the existence of theories that try to explain the responsibility for redhibitory vices, maintaining that they derive from the ignorance of those who purchased the product. 

In that process, a lot of shoes were acquired for resale. The first six pairs sold were defective (heel breakage) and were returned by consumers. In view of this, the sale of the other pairs was suspended to return the entire batch, which was refused by the manufacturing company. 

In the second instance, the hypothesis was considered a substantial error. According to the judgment of the Court of Justice of Minas Gerais (TJMG), the sole reason for the consent of the purchaser of the lot of shoes was “the certainty that the goods purchased were of good quality, the absence of which justifies the cancellation of the agreement”. 

However, in the understanding of Minister Nancy Andrighi, whoever purchased the lot of shoes did not make a substantial mistake, as he received exactly what he intended to buy. The rapporteur understood that “the shoes only had a hidden defect in the heels, which made them unfit for use”. 

“In the redhibitory vice, the contract is signed with a view to an object with attributes that, in general, everyone trusts it to contain. But, contrary to normal expectation, the thing presents a hidden vice peculiar to it, a defective characteristic uncommon to others of its kind”, said the minister. 

According to her, redhibitory vices are not related to the agent's initial perception, but to the presence of an economic or utility dysfunction in the business object. “The substantial error reaches the contracting party's will, operating subjectively in his mental sphere”, he maintained. 

deadline to complain 

In relation to hidden defects, the CDC provides in article 26, paragraph 3, that the deadline for the consumer to complain begins at the moment the defect becomes evident. 

In the judgment of REsp 1,123,004, Justice Mauro Campbell understood that, characterized by a hidden defect, the statute of limitations starts from the date on which the defect is evidenced, even if there is a contractual guarantee. However, the criterion of the useful life of the durable good cannot be abandoned, so that the supplier is not responsible for solving the defect forever. 

In view of this, the minister reformed a decision that considered the responsibility of the product supplier to be removed, in cases where the defect is detected after the end of the legal or contractual warranty period. 

In REsp 1,171,635, the judge summoned Vasco Della Giustina, of the Third Panel, concluded that the consumer's inertia in proceeding with the claim within the expiry period authorizes the extinction of the process with resolution of the merits, as guided by article 269, item IV , of the Civil Procedure Code (CPC). 

The consumer purchased two tricycles and, less than a month later, discovered a problem with their operation. After coming and going looking for a solution, after six months, he filed a complaint with Procon. Only after more than a year, the consumer brought a lawsuit. 

"This Superior Court has already ruled that there is no illegality, when the consumer's nonconformity occurs on a date greater than the period of decay", said the rapporteur. 

Who answers? 

In the judgment of REsp 1,014,547, the Fourth Panel decided that the responsibility for a defect found in a car, acquired through bank financing, is exclusive to the seller, as the problem is not related to the activities of the financial institution. 

A consumer purchased a used Kombi, which was defective before the end of the warranty period – 90 days. The car had been acquired through a down payment, paid directly to the dealer, and the rest financed by Banco I.. 

The consumer went to court and, in the first instance, obtained the termination of the purchase and sale agreement, as well as the financing entered into with the bank. Both were jointly condemned to refund the amounts of the installments paid and, in addition, the dealer was ordered to indemnify the author for moral damages. The Federal District Court of Justice (TJDF) upheld the sentence. 

Dissatisfied, Banco I. appealed to the STJ and pointed out a violation of articles 14 and 18 of the CDC. He maintained that the financing agreement would be different from the purchase and sale of the vehicle, signed with the selling company. Therefore, the defects would refer to the vehicle and this would not imply any defect in the financing agreement. 

According to Minister João Otávio de Noronha, the financial institution cannot be considered as a supplier of the good that was offered as a guarantee of financing. The minister explained that the provisions of the CDC affect the banking institution only in terms of the services it provides, that is, its financial activity. 

For him, the consumer formalized two different contracts. “In relation to the contract for the purchase and sale of the vehicle and the loan with the financial institution, there is therefore no accessory, so that one of the contracts does not bind the other nor depends on the other”, he maintained. 

Properties 

In relation to existing defects in a property financed by Caixa Econômica Federal (CEF), the Fourth Panel decided, when judging REsp 738.071, that the financial institution was a legitimate party to respond, together with the construction company, for defects in the construction of the property whose The work was financed by the Housing Financial System (SFH). 

CEF appealed to the STJ arguing that it would not have joint responsibility for the construction defects existing in the property, located in the Ângelo Guolo Housing Complex, in Cocal do Sul (SC), intended for low-income residents. 

Minister Luis Felipe Salomão, rapporteur of the special appeal, explained that the passive legitimacy of the financial institution would not simply result from the fact that it had financed the work, but from having provided the undertaking, prepared the project with all the specifications, chosen the construction company and have negotiated directly, within the popular housing program. 

According to the majority understanding of the Fourth Panel in this judgment, the responsibility of CEF in cases involving construction defects in properties financed by it must be analyzed on a case-by-case basis, based on the regulations applicable to each type of financing and the obligations assumed by the parties involved. 

Processes: REsp 991317, REsp 1123004, REsp 1171635, REsp 1014547, REsp 738071 

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Source: AASP Portal.