Authors:
Gustavo Henrique de Faria Passarelli – ghfaria@almeidalaw.com.br
Gisela Romancini Ribeiro
One of the basic principles of Consumer Law is the recognition of its (the consumer) vulnerability to the supplier, who stands out as the economically favored party. This principle is expressly provided for in Article 4º, I, of the Consumer Protection Code (CDC), whereby the consumer is placed under the protection of the State in order to compensate for its unequal position and to balance the consumer relation.
It is because of the consumer’s vulnerability that Article 6º, VIII, of the Code of Consumers’ Defense (CDC) establishes the reversal of the burden of proof in favor of the supplier, while Article 14 of the CDC provides for the strict liability of the supplier for any damage caused to the consumer by the provision of services, regardless of fault.
Although the State’s protectionism regarding the consumer is perfectly plausible precisely because the unfavorable position in the consumer relationship, it must be recognized that the consumer is not always correct in pleading his rights in court. In fact there are recurrent cases in which there is abuse of the protection granted by the State to achieve objectives that are unlawful or contrary to objective good faith.
An example of this is actions undertaken to fulfill obligations or obtain indemnities for which the consumer maliciously claims not to have received a product purchased on an online platform because it was delivered to a third person, even at the address indicated at the time of purchase.
In such cases the consumer, knowing that the merchant company cannot prove the third party that received the product passed it on to the buyer, unlawfully claims new delivery of the item and/or compensation for the damages allegedly caused, clearly aiming at illicit enrichment.
In actions such as applying the principle of vulnerability and consequently the provisions of article 6º, VIII and 14 of the CDC, it is common for magistrates to erroneously understand that the delivery receipt for the item at the address indicated by consumer, but signed by a different person, does not prove that the consumer has received it.
Thus, even if the company has fulfilled its obligation to deliver the product, it is unjustly condemned by the Judiciary Power simply because it was not able to prove that the recipient of the merchandise passed it on to the real buyer.
The Judiciary’s position is unreasonable and deserves notorious reproof, as it punishes the passive part of the deed not because the author was successful in demonstrating his right, but because he imposed on the defendant (supplier) the onus of an impossible proof that, not being presented in the proceedings, led the court to assume that the false arguments put forward by the consumer were valid.
Now, cases like these need a more cautious analysis of the Judiciary because it is not acceptable the consumer be allowed to abuse the protection provided for by the law to illicitly enrich.
Although the liability of the supplier is objective and there is a basis for reversing the burden of proof, magistrates should be aware that such points cannot imply the production of evidence is impossible or excessively difficult for the supplier, since it is a barrier imposed by art. 373, §2º, of the Code of Civil Procedure (CPC):
Art. 373,§ 2o , of the CPC: The decision provided for in paragraph 1 of the article [reversing the burden of proof] cannot create a situation in which the party’s responsibility is impossible or excessively difficult.
Incidentally, it should be clarified that the delivery of products purchased on an online platform is not strictly personal (done only to the buyer). In fact, anyone who has the recipient’s authorization, such as a neighbor, family member or porter of the delivery address, can receive the order, precisely because it is not always possible to find the buyer at the final address.
It is extremely common, for example, that the buyer requests the delivery of the product at his residence, but works at another address during the day so that for delivery to take place another person who resides or works at the address indicated receives the product. In this situation, if the company does not deliver the order to the person who is there, it is clear that it will never be able to do it within the established time limit, since it will not find the buyer in order to do so.
Thus, if the supplier fulfills its duty to deliver the product at the address indicated at the time of purchase, it is evident that the fact that the third party signs the delivery receipt cannot constitute default, since it is perfectly presumed that the order was passed on to the customer buyer.
This, inclusively, is the majority positioning predicted in statements No. 05 of the Fórum Nacional dos Juizados Especiais (FONAJE)[1] and No. 25 do Fórum de Juizados Especiais do Estado de São Paulo (FOJESP)[2], when they consider as valid the delivery of judicial correspondence to the address of the party as long as the receiver is identified. The same understanding can be used for the delivery of products.
Almeida Advogados has a team specializing in Civil Law and Consumer Relations with extensive expertise in the defense of the interests of its clients, both in the judicial and administrative spheres, available to provide any clarification on the subject addressed in this Article.
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[1] Statement No. 5, FONAJE – The correspondence or counter-faith received at the address of the party is effective for citation purposes, provided that the recipient is identified.
[2] Statement No. 25, FOJESP – The correspondence or counter-faith received at the address of the party is effective for citation purposes, provided that the recipient is identified.