Sem categoria 7/8/2018

The impossibility of late payment fees imposition in the case of late delivery of products sold over the internet

Gustavo Henrique de Faria Passarelli –
Gisela Romancini Ribeiro –

The Public Prosecutor’s Office of the State of Sao Paulo (MPSP) filed a Public Civil Action (ACP) for the imposition on Kalunga Comércio e Indústria Gráfica Ltda. (Kalunga) of late product delivery fine relative to in its online sales, asserting that the assessment of late payment fees on consumers without the corresponding penalization of the merchant for late product delivery constitutes absence of contractual understanding between the vendor and consumer as respects penalty, violating the concept of contractual reciprocity.

The ACP was dismissed by the trial court. On appeal, however, the Court of Justice of the State of São Paulo (TJSP) determined that all of Kalunga’s online sales apply a 2% late delivery fee or full refund in the case the consumer wishes to cancel the order.

The matter was then brought by Kalunga as Special Appeal No. 1.412.993/SP before the Fourth Chamber of the Superior Court of Justice, arguing for reversing the TJSP decision and dismissing the ACP.

Kalunga’s position is that as was expressed so well by Superior Court of Justice magistrate Maria Isabel Gallotti whose opinion, followed by a majority of her fellow magistrates, was that the assessment of late fees on the consumer for late payment only exists in the case of credit card purchase and that it is the financial institution issuer of the credit card that applies the charge and not the vendor.

As the credit card agreement signed between the consumer and the financial institution card issuer has no relation to the vendor’s Internet sales environment there is no justification for the imposition of late delivery fee or full refund in the case of cancellation of order.

We understand Superior Court of Justice magistrate Maria Isabel Gallotti’s reasoning to be entirely correct in that as the late payment fees are not directly assessed by the vendor there is no violation of the principal of contractual reciprocity as argued by the MPSP.

When a purchase is made by credit card, the amount due is not due to the vendor but to the financial institution card issuer, which at the moment of purchase assumes the position of mediator of the sale.

Should the consumer be late on the payment of his or her credit card bill, it is the financial institution card issuer, the actual creditor of the amount due, that applies the late fees, in accordance with the agreement signed between it and the consumer, an agreement that does not include the online vendor. As is evident, the vendor is in no way benefited by the assessment of late fees as no amount of this penalty is passed on to him or her.

It is also worth noting that credit cards are not the only form of payment available to the consumer. Credits cards only facilitate the sale, including for the benefit of the consumer, who can thus pay for purchases in installments. To avoid late fee assessment by the financial institution card issuer, the consumer may instead choose to purchase via a bank-issued payment voucher, in which case late payment fees do not apply but only automatic cancellation of the order in the case of non-payment.

Almeida Advogados has a team of lawyers specialized in Civil Law and Consumer Relations, with extensive experience in defending client interests before the judicial and administrative courts, which team is available to provide any clarification necessary on the subject matter of this article.