Put Leonardo Neri and Barbara Oliveira  – 29/04/2020

The consumer relationship is formed, in its regularity, by three essential elements, namely: the consumer, the supplier and the product or service that connects them. The consumer is understood as the one who is the final recipient of the product or service provided. The supplier is anyone who inserts a product or service into the consumer market on a regular basis.

In this sense, the supplier has extensive knowledge of the production chain and the provision of the service itself, compared to the consumer, who is seen in the relationship as the weaker party, due to having a restricted and limited perspective of the consumption chain. For this reason, the consumer relationship originally presumes an imbalance of positions between the supplier and the consumer. Thus, to balance the relationship, the Consumer Defense Code provides certain rights to consumers, in order to make the hierarchy in the relationship horizontal. The reversal of the burden of proof, the theory of appearance, among others, are some examples of this rebalancing provided by the norm.

In addition to the specific legislation that regulates the matter, the consumer relationship is also guided by a series of principles, which also seek to establish balance in the relationship between consumer and supplier, such as the principles of good faith, proportionality and transparency.

However, in atypical and unpredictable situations, such as the current situation experienced worldwide due to the COVID-19 pandemic, there is a consequent disruption to the most diverse contractual relationships, given the change in the factual reality experienced by the parties, as a result of factors beyond their control.

In consumer relations, these changes can make the supplier vulnerable, and the full maintenance of consumer rights can, in this case, unbalance the consumer relationship, making it unviable for the supplier, given their temporary and relative insufficiency.

Given the atypical nature of the situation, consumer rights must be mitigated and relativized, analyzing, in each case, the weaknesses faced by the supplier in dealing with the crisis.

The situation is particularly worrying in the tourism and hotel sector. The sector, which previously accounted for a large part of the country's financial movements, reaching R$270.8 billion in Gross Domestic Product (GDP) in 2019, is now estimated to have seen a reduction of R$38.91 billion in revenue due to the impacts of the pandemic, according to a study carried out by FGV Projetos. According to experts, the sector could take up to a year to stabilize after the crisis ends.

In this scenario, the supplier is also at a disadvantage, especially in the face of government interventions aimed at containing the spread of the virus causing the pandemic, making it impossible to apply certain legal guarantees to consumers.

The relativization of consumer rights and, also, of contractual terms eventually adjusted, is based on the occurrence of an unforeseeable event of force majeure, which ends up placing an excessive burden on one of the parties to the relationship, making it impossible to fulfill the obligation in the manner initially agreed. An event of force majeure is understood as one in which it is not possible to avoid or prevent its effects, as described in the sole paragraph of art. 393 of the Civil Code.

In general terms, these are unexpected and unpredictable situations, beyond the control of the parties, and which, because of their characteristics, do not allow the adoption of preventive or preventive measures in relation to the event that occurred. It can therefore be stated that the Coronavirus pandemic is a force majeure situation, given the logical impossibility of predicting the incidence and proportion of the virus, nor the drastic consequences it would bring.

However, the existence of a pandemic is not enough to deny consumer rights or justify non-fulfillment of a contractual obligation. The impossibility of fulfilling the obligation must result directly from the unforeseeable event. In other words, there must be a causal link between the non-fulfillment and the unforeseeable event, and compliance with the unaffected obligations must be ensured.

In practice, restrictions on the operation of certain activities, as well as the recommendation of social isolation, resulted in the cancellation of several services provided by suppliers who had their establishments closed for an indefinite period, but who, on the other hand, cannot bear the losses and consequences of a fact that they could not foresee and avoid.

For this reason, Provisional Measure No. 948/2020 was created, which allows suppliers to adopt alternative measures in the event of cancellation of services, reservations or events, such as providing credit or rescheduling. MP 948/2020, among other provisions, also eliminates the penalties imposed on suppliers by the CDC, in addition to eliminating the incidence of moral damages in cases of cancellation.

MP 948/2020 corroborates the idea that, given the atypical nature of the situation, requiring suppliers to comply with their obligations as required by law would make their activities unfeasible. This is because the requirement for reimbursement by the consumer, combined with the drop in revenue resulting from the restriction of activities, would lead the sector to a collapse that would be difficult to repair, with serious repercussions on the country's economy.

However, the existence of legal regulations that protect the supplier does not prevent the emergence of disputes resulting from consumer dissatisfaction with the measures adopted by the supplier. Therefore, it is necessary for the supplier to maintain constant and objective communication with its consumers, and it is also recommended to adopt an emergency dispute resolution policy, through contract negotiation channels and, if necessary, the use of a legal mediation platform, as a way of maintaining customer loyalty, minimizing the risk of a devastating effect, due to the high contingency due to the accumulation of lawsuits in the judicial sphere.