One question that always comes to light in discussions related to suppliers and service providers – private or public – is that related to the liability due to damage or defects in their services. This matter has been changed throughout the history in order to follow the modifications in the consumer market, attributing an objective liability to suppliers, as a rule for this relationship.
However, before it happens the consumer was unprotected when claimed on the defects in contracted services or on damages resulted from such contracts. Even with the development on a large scale, with mass production and adhesion contracts for contracting of services, we can say that the consumer class assumed a risk of hiring a defected service, which in fact weakened the validity of any claim. They were vulnerable, as the responsibility for damage caused by the service provider should be proved by the consumers. Because of the necessity of ensuring more protection for consumers in a society which is ruled by consumption, the liability – which once depended on the proof of fault – has become objective since 1990 with the enactment of CDC (Consumer Protection Law), that innovated the Brazilian Law when established in Articles 12 and 14 the liability for products and services provision, regardless of suppliers’ proof of fault, known in Europe as ‘non-culpable’ liability.
As Claudia Lima Marques described, the Consumer Law agrees with the European tendency, changing the Brazilian system, that in the past required acknowledge of the fault (supplier fault). The principle of objective liability is the assumption of the business risk by suppliers who offer their services and products on the market, aiming at the profits resulted from this economic activity. The legislator presupposes that the suppliers – when provide their services and products – obtain incomes which enable them to assume the consumer losses resulted from failures that may occur in services provision. Because of that, it is irrelevant – to have obligation by suppliers to repair faults or damage – to determine when the event occurred. It is only necessary to confirm the cause and effect relationship between the conduct practiced by the service provider and the harmful result, so there is the duty to repair.
However, this attempt to “balance” the relationship can not be considered as absolute to punish suppliers in situations that the absence of causation is proved, for example, the exclusive fault of the consumer, as mentioned in the paragraphs 2 and 3 of Article 14. In such cases, legislator established situations that the service provider shall not be liable for damages or defects raised by consumers. Indeed, in these cases, legislation tried to temper the objective responsibility in Consumer Law with the purpose of establish situations where the supplier is not liable for damage experienced by consumers. We can say that such provisions are fundamental to the service providers’ protection, as it is not rare to find consumers who use the Consumer Law to claim in situations that consumers themselves caused the damage.
As an example of the situation mentioned, we emphasize the service providers of electric energy that are subject to demands which often there is improper use of electrical installations by consumers. Although the matter in this article may be classified as usual, the proof to show the fault by consumer requires high technical expertise, knowledge of specific laws and especially good legal sense in the elaboration of the defense argument. It also requires caution by the Law, as it must acknowledge the exceptions and treats them as such, attributing the liability of service providers accordingly.
When attending service provision companies, Almeida Advogados meets these situations and leads each process accordingly, aiming at the correct application of the objective liability, presenting exceptions to the rule.
1 Art 14. The service provider is liable – regardless of the existence of fault – for the injuries caused to consumers because defects relating to the provision of services, as well as insufficient or inadequate information about their satisfaction and risks “.
2 Art 14. The service provider is liable – regardless of the existence of fault – for the injuries caused to consumers because defects relating to the provision of services, as well as insufficient or inadequate information about their satisfaction and risks.
3 Contracts in the Consumer Protection Law, page 1209.
4 As the author Luiz Antonio Nunes Rizzatto comments in his work “Curso de Direito do Consumidor”.
5 Art 14 (caput).
§ 2º Service is not considered defective by new techniques.
§ 3 ° Service provider shall not be liable when prove:
I – there is not any defect when provided the service;
II – there is exclusive fault of the consumer or third parties.
Source: Almeida Advogados – Cassio Augusto Ambrogi e Ana Carolina Renda