Walter Basilio Bacco Junior
Walter Basilio Bacco Junior is a Partner and Lawyer at Dannemann Siemsen's office.read +
by Walter Basilio Bacco Junior
August 24, 2020
Due to Covid-19, which has been plaguing the world and our country, draft law 1,179/20 started to be debated in the Federal Senate in the middle of April this year, dealing with establishment of new urgent rules through the creation of an emergency and transitory legal regime for legal relationships under private law during the period of the pandemic.
Said draft law does not have the power to change current laws. However, given the emergency nature of the crisis caused by the pandemic, it aimed to create transitional rules in order to protect certain legal relationships that, in some cases, temporarily suspended the application of provisions of codes and uncodified laws, being limited to dealing with predominantly private matters.
In the area of consumer relations, said draft law brings to light a single article in Chapter V (Article 8), which strictly dealt with suspending – until 30 October 2020 – the application of the rule in Article 49 of the Consumer Defence Code (the so-called “consumers’ cooling-off period”) if a product or service is bought using home delivery. Cooling-off periods, we should recall, are the legal benefit granted to consumers that allow them to undo an agreement, at no expense, if it has not been entered into in the manufacturer’s or merchant’s physical establishment, since in this situation consumers cannot precisely and accurately ascertain what is being bought, and their expectation can be frustrated.
Let us see, then, the original wording of Article 8 contained in draft law 1,179/20: “Article 8. If a product or service is purchased using home delivery then the application of Article 49 of the Consumer Defence Code is suspended until 30 October 2020.”
The fact is that the wording of the said legal text caused enormous discomfort and insecurity to merchants who operate in retail and wholesale e-commerce. This is because it was not specified which goods and services should be subject to the transitory effects of this emergency regime, as well as whether said rule would apply to all sectors and segments of industry, without distinction, since the only condition is that the goods and services are purchased using home delivery (it should be highlighted that the growing e-commerce market in the country generated around R$ 75.1 billion in 2019).
The insecurity created led several businesspeople to question the uncertain impacts of this rule on their businesses, especially on the legal and contractual guarantee for their goods and services, as well as the impacts on the entire consumer chain and the adaptations that should be made to the strategy for post-sale customer service. Undeniably, the warning light of an avalanche of post-pandemic consumer disputes was lit to the detriment of the industry in general, bringing more concern from the financial point of view of businesspeople.
Fortunately, these worries were resolved when federal law 14,010, of 10 June 2020, was sanctioned. With the advent of the new law, Article 8 was modified to limit its scope to goods that are perishable or immediately consumed and medicines. Let us see below the wording contained in the new law: “If products that are perishable or consumed immediately and medicines are purchased using home delivery then the application of Article 49 of the Consumer Defence Code is suspended until 30 October 2020.”
In our understanding, the changes made in the legal provision to limit and only include in the said transitional legal regime the suspension of consumers’ cooling-off periods for products that are consumed immediately and medicines were extremely important and very welcome
In conclusion, the wording enshrined in Article 8 of Federal Law 14,010, of 10 June 2020, makes it clear the cooling-off period set forth in the Consumer Law is suspended, but that this benefit is valid only for home delivery of perishable products and medicines and does not impact or affect manufacturers and businesspeople that sell products from other sectors of industry and commerce, to which the rules currently in force apply.