Business activity risks must be distributed between the supplier and consumer

Since the entry into force of the Consumer Defence Code, the Brazilian Judiciary has consolidated the understanding that the risks associated with business activity are not distributed between the supplier of products or services and the consumer. Case law has systematically been constructed in favour of imputing any and all liability, regardless of fault for the losses borne by consumers in a consumer relationship, onto suppliers.

The inequality between supplier and consumer as a given fact for solving their disputes and above all the consumer being in a position vulnerability have always guided decisions handed down by our Judges in applying the rules of said Code.

As a result, after more than two decades of the Law being in force, an unwanted pattern of disproportionate and unreasonable awards has been achieved, which ultimately burden all interested parties.

On the one hand, suppliers of products or services are squeezed by huge legal liabilities in terms of quantity and amount. On the other, consumers start to pay higher prices as a result of suppliers passing on the costs, corroborating the saying that every court decision has a cost to be borne by someone. It is not hard to demonstrate the direct relationship of cause and effect in this situation.

We also cannot ignore that in a Country of continental dimensions, with more than two hundred million inhabitants, where the State is absolutely incapable of meeting the most basic demands of its population, this case law ends up providing true relief for our governors, since it transfers obligations that should be supplied by Public Authorities to private initiative.

It is enough to see what happens with the Operators of Health Insurance Plans, who, due to the inefficiency of the Public Authorities in offering quality health care to the Brazilian population, are urged by the Judiciary to provide non-contracted treatment to its users. Treatment, it should be repeated and emphasised, that should be supplied by the State. The result, as is well known, is the situation of scarcity in the sector, providing services of questionable quality in return for charging expensive monthly payments.

This is repeated in the area of public security, where private initiative, still on account of this law, is obliged to hire private security at an extremely high cost, with the ideal of keeping consumers unharmed and safe from violence, as if in practice this were possible. Quite the opposite. This apparatus created at the margins of the State only lends itself to increasing the risk of violent clashes between thugs and private vigilantes, further exposing consumers’ safety. In any case, the cost of maintaining this private security is entirely passed on to the prices of the products and services purchased by the population.

Within the presented scenario, the question that should be asked today is: are Brazilian consumers willing to continue to bear the high cost of this case law, without being called to share the risks of business activity with the supplier?

The Superior Court of Justice, fortunately, has woken up to this matter and, mindful of all these nuances, has been reviewing case law that deals with the subject. The premise now adopted becomes the expectation that consumers hold with respect to a particular supplier when purchasing a product or service that is offered to them. That is, depending on the expectation generated in consumers, in terms of what they consciously expect to receive in return, suppliers are exempt from paying compensation for losses borne in a consumer relationship.

A typical example happened recently in the judgment of a motion for resolution of conflict in special appeal no. 1,431,606/SP, by the Second Section of the Superior Court of Justice (STJ), where the “McDonald’s” chain was not ordered to pay compensation for the theft of a customer’s motorcycle in the parking area of its drive-thru restaurant.

In the opinion of the majority of the Justices that make up the Second Section of the STJ, the consumer could not have had an expectation of security in the case, which would justify the sought redress. Unlike what happens in Shopping Centres and Hypermarkets, which have basic security items, such as fences, gates, ticket delivery and entry and exit control, the car park in question is offered to its customers as a mere courtesy, as is the case in commerce in general, such as bakeries, pharmacies and gas stations, in addition to not being essential for the success of the business.

Indeed, aware of the security constraints in the car park at the drive-thru restaurant of the said chain, it would not be reasonable to conclude that the consumer was led by the supplier to a frustration of trust due to the theft. Thus, in situations such as this, a distribution of the risks of business activity are now imposed between supplier and consumer, removing the obligation to compensate.

Incidentally, the distinction established between car parks in Shopping Centres and Hypermarkets and car parks in drive-thru restaurants, in order to remove the application of Precedent 130 of the STJ and to temper the interpretation of §1 of Article 14 of the Consumer Defence Code, is a practical example of how case law is beginning to change, mindful of the need to contribute to the rebalancing of the distribution of business activity costs between suppliers and consumers.

May this new line of interpretation be definitively consolidated into our case law, in order to bring a more mature and responsible ideal of justice, free from paternalism.