The civil liability of the provider by the violation of duty of information

With the intention of protect the consumers relationships, the 8.078/1990 Act, known as the Code of Consumer Protection, has established the rights and duties to be followed between consumer and provider. Among them, we can highlight the duty of information.

The consumer has the right to receive the necessary information concerning the using of products and services, in a clear and specific way, according to the item III[1] of the article 6º of the Code of Consumer Protection.

For this reason, the provider must suit his products and services, so that the specifications be written in a clear and objective way, moving away any possibility of doubt concerning their use. That is what the article 8º[2] prescribe:

Art. 8º – The products and services put on the Market will not offer any risk to the security or health of the consumers, except the damages considered normal or predictable in due to their nature and fruition, compelling the provider, in any hypothesis, to give the necessary information and adept about it.

Likewise, the information provided may not be made with technical terms, instead, must be written in a way to give an easy comprehension, as well as, be correct and clear.

In some cases, for example, for the supply of industrial products[3], the Code of Consumer Protection determine that the information be made by printed information materials, which must come with the product.

The importance of a clear and specific information consists on the premise that the consumer is the vulnerable part in the relationship, and, therefore, by rendering the information in a detailed way, making it easy to understand, the provider allows that the consumer make conscious decisions in the use of the product, balancing the relationship and putting away civil liability of the provider in any contingent damage caused to the consumer.

It is worth highlighting that the rules do not only are applied between products and consumer goods, for services, for example, the information and publicity of the terms and contractual clauses must remain clear and accessible by anyone.

Recently, in the last Tuesday, 12/03/2019, the Third Panel of the Superior Court of Justice (STJ), judging the special appeal number 1.837.434, guaranteed the protection of a consumer that had his cellphone stolen during the 2016 Carnival, condemning the insurance company to indemnify the plaintiff. The allegations of the company were based in an article of the insurance contract, agreed by the parties, in which the insurer only would have the duty to pay the amount of insurance specified at contract in cases which the victim suffer an aggravated theft.

However, as said by the rapporteur minister Nancy Andrighi, the consumer has the right to obtain the main information contained in the contract, and the supplier must contribute to the clarity of the semantic and terms used.

Therefore, the court decided that the article of the insurance contract, which firm the protection only in cases of aggravated theft, without explaining his meaning and differentiate it of a simple theft, provides an abuse e failure of the company of his duty to inform.

In this way, in order to accomplish the duty of information, protecting, the consumer of an eventual damage, as well as the provider from an eventual civil liability and duty to indemnify, it is recommended that the provider always have the support of a lawyer, to insure that his products, services, contracts and information materials are aligned with the Code of Consumer Protection.

[1]Art. 6º – Are basics consumer rights:

(…)

III – An proper and clear information concerning the different products and services, with the right specification, features, composition, quality, tributes and price, as well as, the risks it contains;

[2]Art. 8º – The products and services put on the Market will not offer any risk to the security or health of the consumers, except the damages consider normal or predictable in due to their nature and fruition, compelling the provider, in any hypothesis, to give the necessary information and adept about it.

[3] Art. 8º (…)
§1º Dealing with industrial products, the provider must give the information mentioned in this article,through printed informatives which must come with the product.

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Correia da Silva

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Rafael Poinha Romero

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Core Business Advisory and Litigation

Category: BUSINESS ADVISORY, BUSINESS CONTENT, Francielle Santos

Tags: CSA; CDC; consumer; duty of information; duty; information; provider; civil liability; litigation; information materials; products; services; publicity; indemnify; duty of indemnify

Posted in: 12/12/2019

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