The Right of Regret in the Brazilian Consumer Code provides the Consumer the prerogative to withdraw from the purchase of a product or hiring a service that has not been held in a physical store. Currently, this rule applies normally to purchases made via Internet, where the consumer doesn't maintain any physical contact with the product, which might increase the likelihood of dissatisfaction in the moment that she receives the purchased product. This situation frequently happens because the advertised illustrations of the product are not, in fact, compatible with the actual item that was purchased.
It is important to make clear that The Right of Regret in the Brazilian Consumer Code does not apply to purchases made in a physical store. Thus, if the product does not have any kind of defect there is no legal support for replacement or refund. If it is the case of exchange or refund by the Seller without the existence of any vice or defect, he is doing this free willingly, probably as a marketing policy to gain more market share and satisfied Consumers.
The Right of Regret and your application
The Right of Regret is a tool that can be used even in cases in which the Consumer has no specific cause for withdrawal from the Agreement, i.e., it is not necessary for the Consumer to explain why she doesn't want to keep the product or the service purchased. So there is no need to prove any defect in product or failure to comply with the services hired when invoking the Right of Regret.
The seven-day time-line starts on the date immediately after the hiring of the service or of the delivery of the product, not being interrupted on holidays or weekends. If the date immediately after hiring the service or delivery of the product is not a business day or if it falls on a holiday, the beginning of such period should be postponed to the following business day. If the final day for the Consumer to invoke the Right of Regret should fall on a date on which the Sellers establishment is not opened for business, the consumer has until the next business day to manifest this desire.
It is important to note that the Supplier may voluntarily grant to the Consumer more than the seven-day period stated in the Brazilian Consumer Protection Code. However, this exception must be provided by formal Agreement. On the other hand, the opposite situation is not permissible by Brazilian Law. In other words, the Supplier will not be allowed to reduce by voluntary Agreement with the Consumer the term established in Brazilian Consumer Code. Should this situation occur it shall be interpreted as a violation of Consumer rights.
The Right of Regret and purchases made over the Internet
Pursuant to Article 49 of the Brazilian Consumer Protection Code, in some cases, the Consumer can withdraw from a contract within seven calendar days from the date of signature of the Agreement or from the day he or she receives the product or service sold. This situation, however, in Brazil, can only happen when the Agreement for the provision of goods and services occurs outside of the commercial establishment (for example: on transactions held by phone or at home, when a salesperson offers the product or the service door-to-door directly to the Consumer). It is important to emphasize that Article 49 of the Brazilian Consumer Code cannot be read literally, because in 1991, the year that this Statute came into force, there still wasn't in Brazil the availability of purchases over the Internet, so Consumer Rights in these cases were not a relevant issue. Thus, considering that Brazilian Law should be interpreted dynamically, updating to the extent that the Consumer Society changes, purchases made over the Internet are now all regulated under Article 49 of the Brazilian Consumer Code. It is now understood that the Consumer who purchases via Internet also has the Right of Regret concerning items purchased.
The Right of Regret and contractual expenses
Should the Consumer, during that period of seven days, decide to exercise her Right of Regret, any amount paid, for any reason, should be promptly reimbursed by the Seller, who shall add to the amount paid all other transaction costs. So, the Seller must include in these values all expenses with postal services for returning the product and the monetary restatement, amounts which cannot be passed on to the Consumer.
In reality we observe that this Consumer rule is constantly violated by Brazilian Companies, either because the reimbursement of values paid does not occur immediately and when it occurs it normally does not receive the necessary monetary restatement; or because the Seller simply denies the reimbursement, forcing the Consumer to go to a Court as means to enforce the Right of Regret.
The most common arguments used by Sellers to justify their refusal on reimbursement of the amount paid by the Consumer is that she (i) couldn't have removed the product from the box; (ii) couldn't have removed the price tag or couldn't have broken the security seal of the item; or (iii) couldn't have used the product. Nevertheless, how could the Consumer examine the product without removing it from the box? How could the Consumer examine the product without breaking its security seal? Or, in some cases, how could the consumer examine the product without making some use of it? For this reason, it should be mentioned that these arguments are in direct contradiction with the intent of the Consumer Law. When Article 49 of the Consumer Protection Code was enacted the legislature's intention was to allow the Consumer, precisely in this seven-day period, to evaluate whether the product met the expectations she had at the time of the purchase.
Some Sellers require that the amount paid shall only be reimbursed if the product is in its original box, imposing on the Consumer the duty not to discard the original package in which the product was sold. However, this argument turns out to be totally illogical, because the Right of Regret befalls not on the packaging or wrapping of the product but on the purchased product itself.
The Brazilian Consumer Protection Code does not indicate a specific formal procedure that the Consumer must observe or attend as to manifest the Right of Regret. So in the absence of an explicit legal provision and considering the very short seven-day period that the Consumer has, it is understood that she can invoke the Right of Regret in any reasonable form of communication to the Seller of the wish, as for example either by phone, by message through email or by letter sent by mail with return receipt or even by fax.
Any kind of financial loss had by the Seller on this type of Agreement is considered a loss that is simply inherent to business practice held outside of the commercial establishment (i.e., via internet, phone or door-to-door selling). So the economical disadvantages maintained by Companies are to be taken as normal business risks. If this were not to be the case, we would be denying a basic right to the Brazilian consumers, discouraging them from engaging in this more efficient and agile form of trade, which is so common nowadays.
The Right of Regret in the Brazilian Consumer Code is designed to protect consumers who purchase products or services that have not been held in a physical store, i.e., without any possibility of immediate and direct contact with the product or service they aim to acquire. Some authors have reported, however, that this right is often misused by consumers. Some well known Brazilian Court decisions have ruled certain cases in which the exercise of The Right of Regret was considered inapplicable, considering the fact that the regret by the consumer would be excessive and unproportional (such as the application of the Right of Regret related to products that were costume made by request of the consumer who latter changes his mind on purchasing the product - ( Tribunal de Justiça do Mato Grosso, Ap 2116/2000, DES. JOSÉ FERREIRA LEITE, TERCEIRA CÂMARA CÍVEL, Julgado em 28/06/2000, Publicado no DJE 24/08/2000 ).
Analyzing the Right of Regret, as is now provided through art. 49 of Consumer Code, it is possible to see that this rule is not able to fully regulate the institute as it should. For this reason there is a legislative bill that is being discussed in Brazilian Congress (Legislative Project n. 281/2012) that intends to better regulate electronic commerce, recognizing that the general provisions of the Consumer Code will be applicable to this area of commerce. This bill, if enacted into law by Congress, will bring significant improvements to the exercise of the Right of Regret, as well as to the electronic commerce in Brazil.
The Corporate Lawyers who work for Companies that have branches in Brazil should care about this issue because the rules of Consumer law vary from country to country and it is important to be well informed about the differences that Brazilian legislation may present.
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Procon Paraná website http://www.procon.pr.gov.br/modules/conteudo/conteudo.php?conteudo=506
Procon São Paulo website http://www.procon.sp.gov.br/texto.asp?id=3316
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