Clipping of news on Brazilian Culture, Law and Citizenship
04/04/2013
This article was translated by an automatic translation system, and was therefore not reviewed by people.
It is illegal lending contract cell phone provider in the consumer requires length of stay greater than 12 months. The decision is the Fourth Chamber of the Superior Court of Justice (STJ), the appeal judge TIM Celular against a consumer of Mato Grosso do Sul, who requested termination of the contract before fulfilling the 24-month grace period provided in the contract.
Following the vote of the rapporteur, Minister Marco Buzzi, the Panel considered that the fidelity required by carriers in itself is not illegal, provided that in exchange for the telephone company will provide some advantage to the customer effectively, whether in the form of reduction in the value of services or discount on the purchase of appliances.
However, understand that the term exceeds 12 months evades reasonableness and hurts the consumer's right to seek better deals on the market. According to the rapporteur, the evolution of communication systems, the universal service and expand coverage services become very dynamic, a point not justify the commitment of a long term contract users.
The lending practiced by operators usually works as a kind of loan that occurs in the transfer of ownership of the unit completed after the grace period or after payment of penalty in cases of termination.
Two contracts
In the case considered by the Supreme Court, a microenterprise signed contract to provide mobile phone service, with a grace period of 12 months, and a lending contract nine handsets, with a grace period of 24 months. After little more than a year, citing dissatisfaction with the services requested termination.
According to the lawsuit, the operator said that the termination of lending ahead of schedule entailed a fine corresponding to the value of the equipment divided by 24 and multiplied by the number of months remaining to complete the term. In that case, the devices would have to be returned.
Another option given by the operator was the acquisition of equipment for the customer, upon payment proportional to the time that was needed to terminate the contract. The consumer filed in court asking for the termination of lending without penalty, the argument that the contract for the provision of cellular service had him pegged within just 12 months already served.
Venda married
The trial judge rejected the claim, but the Court of Mato Grosso do Sul (TJMS) dismissed the appeal in favor of the consumer, understanding that the loyalty clause that imposes a fine in the event of termination before the contracted term sets' sale married ", a practice prohibited by Article 39, I of the Code of Consumer Protection.
For the TJMS, this loyalty clause is void because it "causes excessive burden to the consumer, which is required to remain faithful to the operator, even though the service is not being provided to the satisfaction."
By analyzing appeal by TIM Celular, STJ rejected the thesis of "tying", but kept the decision in favor of the consumer on the other grounds.
Legitimate demand
For the Fourth Class, there is "tying" because the consumer is able to purchase the device without binding deadlines, or even purchase it from other companies, and there is no abuse in predicting term loyalty.
"Under the contract to provide mobile telephony services, linking the consumer to a minimum is legitimate whenever it obtains, for the duration of that period, pecuniary advantage resulting from charging lower values (compared to consumers who hires same services without tying up the loyalty clause), "said Minister Marco Buzzi.
"Already in terms of lending enabled devices use those same phone lines," continued the reporter, "also reverses the grace period on the consumer benefit, in that it allows, on its part, acquire certain handset by price substantially below market, subsidized, so the phone company. "
Anatel
The minister pointed out that the lawfulness of the term loyalty is recognized by the General Telecommunications Standard 23/96 and Resolution 477/07, the National Telecommunications Agency (Anatel). The NGT 23, however, limits this term to 12 months at most.
According to the rapporteur, this limit is important because a business that previously was shown interesting consumer can become obsolete before the pluralism of conditions offered by the market.
"Despite the stipulation term viability of minimum stay, the aforementioned period may not be long enough to mitigate the freedom of consumer choice, ie the freedom to decide whether to stay in a particular plan or bound to a carrier specific, "he said.
The Fourth Panel declared that the 24 months stipulated by TIM is abusive because it violates the norm of Anatel and enforces consumer relationship for too long, violating their freedom of choice.
Information failure
The minister also dismissed plausible the argument raised by the client operator confusingly the existence of different terms in the contracts, when common sense suggests that both are 12 months. The minister, who was still valid in case the forecast separate deadlines, the operator failed to provide the information properly.
The rapporteur considered that the information provided to consumers was deficient because the prediction of two separate deadlines for legal relations related to the same provision of telephony services to interpretation dubious, given the appearance that the term of the contract duration possess unique.
The situation, according to Marco Buzzi, reveals "absolute gap" with the provisions of the Consumer Protection Code (Articles 6, III, and 54, paragraph 4), which require clear writing, with information immune to confusion.
The Panel considered that the consumer fulfilled in both contracts, the grace period allowed, which is 12 months, which allows imposition of contractual termination without penalty.
Source: Procon Campinas
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This article was translated by an automatic translation system, and was therefore not reviewed by people.