The decision issued by the Superior Court of Justice (STJ) relating to Special Appeal No. 1.634.851-RJ presents important definitions regarding the duty of cooperation between retailer and manufacturer in remedying defects in consumer goods. The specific case questioned the policy of a retail company to conduct exchanges of products purchased by the consumer only within three business days after the direct sale. The retail company claimed that, after that period, it would be incumbent on the manufacturer alone to remedy any defect in the product and, therefore, it sought to exempt itself from liability.
The STJ reviewed a decision by the Rio de Janeiro Court of Appeals (TJ-RJ), which established the existence of a duty on the part of retailers to receive the products within the legal time limit to try to bring back into good standing the defect indicated by the consumer, thereby sending himself the product for technical assistance. In this sense, the TJ-RJ mentioned the 30-day deadline established by the Consumer Protection Code (CDC) to remedy defects in products. According to the TJ-RJ, joint liability among all members of the consumer chain would also imply the duty of retailers to assist consumers in obtaining the repair of products. In other words, retailers who sell directly to consumers should bear the burden of forwarding the product to the manufacturer for proper service.
The STJ dealt with the interpretation of article 18 of the CDC in view of the limitation provided in article 26 of the CDC in order to determine whether retailers have this duty. In conclusion, for the STJ, yes, retailers do have this duty of cooperation, as the burden to repair the product should not fall on the consumer. Even in situations where technical assistance is provided in the very same city, this would not exempt the retailer from the duty to send the product for technical assistance.
The opinion also mentioned civil liability for the intolerable unjustified loss of useful time by the consumer, a theory adopted by some legal scholars, who consider traveling to the technical assistance location and time without the consumer good to be indemnifiable damages. Even though the STJ does not expressly accept this theory in the opinion, the mere mention causes a reflex for retailers to be attentive to this topic.
In summary, the STJ understands that retailers must intermediate the relationship between consumer and manufacturer, as they have a legal duty to ensure the suitability of the product offered for consumption. In this sense, consumers must choose the alternative to exercise their right: whether directly with the manufacturer or with the intermediation of the retailer. In any case, despite the decision unfavorable to the retail company, the STJ maintained the decision by the TJ-RJ regarding the claim for collective moral damages, which were considered not due.
The decision should be understood as a necessity for retailers to foresee such scenarios when negotiating with manufacturers. Whenever possible, supply contracts should provide for: (i) compensation or reimbursement of costs arising from handling products from the retailer to the manufacturer; (ii) the replacement of goods by the retailer when the 30-day deadline for remedying the defect set forth in the CDC applies; or (iii) a provision to hold the retailer harmless in the event of suits brought by the consumer because of product defects that should be remedied by the manufacturer.
Relevant articles of the Consumer Defense Code:
Article 18. Suppliers of durable or non-durable consumer products shall be held jointly and severally liable for defects in quality or quantity which render them unfit or unsuitable for their intended use or for their reduction in value, as well as for those defects that arise from a disparity with the description provided on the container, on the packaging, labeling, or advertising message, subject to the variations due to its nature, and the consumer may demand replacement of the defective parts.
Paragraph 1. If the defect is not remedied within a maximum period of thirty days, the consumer may, alternatively and at his discretion, demand:
I - replacement of the product with another of the same type, in perfect conditions of use;
II - immediate return of the amount paid, monetarily adjusted, without prejudice to any losses and damages;
III - proportional reduction of the price.
Article 26. The right to complain about obvious or apparent defects expires in:
I - thirty days in the case of provision of non-durable goods and services; (...)