Given the current scenario experienced by Brazilian society due to the spread of the SARS-CoV-2 coronavirus (“Covid-19”), we have selected some key points of a civil nature arising from the crisis.
In the field of consumer relations, considering that the general rule determines that the supplier of products and/or services is objectively liable (i.e., regardless of the assessment of fault/intent) for damages caused to the consumer, it is of utmost importance to reinforce clarity, objectivity and precision in the information provided to the consumer.
In the event of any defect and/or flaw in the product and/or service, it is known that according to the Consumer Protection Code (“CDC”), there are few exceptions that authorize the exclusion of the supplier’s liability, and it is certain that, in the current situation, there will be much discussion about the application, or not, of the force majeure institute as a way of altering and even eliminating obligations arising from consumer contracts.
Expressly provided for in article 393 of the Civil Code and implicitly provided for in the CDC, the force majeure institute aims to break the link of liability due to the occurrence of an unlawful act, which causes harm to the consumer, but resulting from an event totally beyond the control of the supplier - an institute that differs from fortuitous event, as this institute, on the contrary, determines that the supplier of products and/or services must be liable for the damage caused, as it is a risk to its activity.
Thus, the Judiciary will often see the allegation of the existence of the force majeure institution aimed at justifying the impossibility of fulfilling obligations and, therefore, the consequent need to remove the duty to compensate.
Considering that the issue has not yet been properly analyzed by Brazilian courts, and that there is currently no consolidated position on whether the force majeure institute will, in fact, be applied to readjust/extinguish obligations, it is recommended that any disputes be resolved on a case-by-case basis, extrajudicially, between suppliers of products and/or services and the consumer.
In this sense, it is considered appropriate for the supplier of products and/or services to demonstrate that, within the measures within its reach, all measures were taken to meet the consumer's wishes, when provided for in the consumer relationship.
Furthermore, also with a view to reducing the spread of Covid-19, the National Council of Justice (“CNJ”) determined that Brazilian courts (with the exception of the Federal Supreme Court and the Electoral Court) would have all their deadlines suspended until April 30.04.2020, XNUMX, except for the analysis and judgment of matters of an urgent nature, a fact that could also delay the analysis of compensation claims filed by consumers.
This reinforces the understanding that extrajudicial settlement, on a case-by-case basis, is the best way to resolve disputes, especially in times of crisis.
Still from a consumerist point of view, it is true that the CDC preserves the consumer's interest when the supplier of products and/or services cancels the delivery of the product and/or service, and it is up to the consumer to claim the cancellation of the transaction and receive compensation, as well as losses and damages, if any, in accordance with articles 18 and 20 of said code.
Thus, in principle, even if force majeure can be argued, the supplier of products and/or services is obliged to comply with the provisions of the aforementioned legal articles. However, it should be emphasized that, at the current time, from both an economic and social perspective, there are alternatives that can be applied within the legal framework, which can be aligned between suppliers of products and/or services and consumers in general.
Therefore, notwithstanding the guarantee of the rights indicated above, the parties are permitted to agree, for example, to reschedule the delivery of the product and/or the provision of the service or even the delivery of another similar product and/or adjustment to the service to be provided, provided that this is expressly accepted by the consumer.
The use of the above guidelines can – and should – be used in all consumer segments, respecting specific standards in the most varied sectors, such as the aviation industry, e-commerce, etc.
When dealing with consumer relations in the aviation field, the Brazilian government quickly issued Provisional Measure No. 925/2020, which aims to provide greater financial breathing space to airlines operating in Brazil and, most importantly, to indicate the modus operandi regarding the reimbursement of airline tickets in the event of flight cancellations.
There is unanimous agreement that the aviation sector was one of the hardest hit by Covid-19, and the financial flow of these companies was fatally compromised. For this reason, albeit with some gaps, the Provisional Measure determined the postponement of payment deadlines for fixed and variable contributions owed by airlines to Brazilian regulatory bodies.
Furthermore, the Provisional Measure determined that, for air transportation contracts concluded up to December 31.12.2020, 12, airlines have a period of 12 (twelve) months to refund air tickets. For consumers who accept a refund of the amount paid for air tickets through the granting of a credit, to be used within XNUMX (twelve) months, counting from the date of the contracted flight, it was established that such credit will be exempt from any penalties arising from the original air transportation contract.
Due to the nature of the Provisional Measure, which consists of a unanimous act by the President of the Republic, it is certain that such a measure must be reanalyzed, modified and, ultimately, approved by the members of the Brazilian National Congress.
Finally, another point that deserves attention refers to matters involving insolvency.
Considering the economic recession caused by the reduced flow of business in the Covid-19 scenario, the risk of delays in fulfilling obligations, lack and/or shortage of inputs, contractual defaults and even paralysis and consequent closure of companies' activities (especially small and medium-sized ones) increases exponentially.
In this scenario, despite the measures adopted by the Brazilian government to stimulate the economy (adjustments in employment contracts and postponement of deadlines for payment of taxes, for example), it is important to adopt measures that enable the continuity of the company, instrumentalized in the use of extrajudicial recovery regimes or judicial recovery, if the legal and procedural requirements for such measures are met.
It is important to emphasize, once again, that the scenario is extremely dynamic. Therefore, before adopting any measures in a specific civil case, we always recommend seeking legal guidance to preserve and defend rights and legal relationships.
