THE SUPERIOR COURT OF JUSTICE HAS HELD THAT THE COOLING-OFF RULE APPLIES TO E-COMMERCE
The Superior Court of Justice recently issued a final decision that the cooling-off rule applies to consumers in purchases made over the internet or by telephone, or in other words, to purchases made outside of a commercial establishment. It issued this ruling in Special Appeal number 1.340.604 and 930.351, as well as in Preliminary Injunction Appeal number 22.722.
As technology develops and Brazilian consumers seek more practical options in their day-to-day lives, they are making purchases over the internet with ever greater frequency. Because of this, they often make impulse purchases without knowing that they can change their minds about the transaction and get their money back without needing to give any explanation to the seller.
The cooling-off rule is established in article 49 of the Consumer Defence Code: “the consumer can back out of an agreement, within seven days from the signature date or the receipt of the product or service, whenever the agreement to supply products or services occurred outside of a commercial establishment, especially by telephone or in the home”. This law also states that “if a consumer exercises the right to back out of an agreement under this article, any amounts paid, for whatever reason, during the cooling-off period will be immediately returned, adjusted for inflation”.
As is normal, the interpretation of this law has led to various disagreements about its breadth and applicability. First among these has been the issue of shipping costs, since there is always the question of who will pay shipping when a consumer decides to back out of the purchase. The Superior Court of Justice has held that “any losses suffered by the supplier in this type of agreement are inherent in the aggressive method of sales outside of a commercial establishment”. In other words, the businessperson must bear shipping costs.
The reporting judge in Special Appeal 1.340.604, Justice Mauro Campbell Marques, states that “accepting the contrary option would create a limitation on the cooling-off rule that is not legally provided for, as well as discouraging this type of commerce, which is so common in our time”. Put another way, the terms of article 49 of the Consumer Defence Code are interpreted to mean that, if the consumer has a change of heart, he or she must not be subject to any cost resulting from the purchase backed out of.
Jul-Sep 2015 issue
Barretto Ferreira e Brancher