By Rodrigo Barcellos
After a long process, Law No. 14.181/2021 comes into force, reforming the CDC to prevent and address the relevant issue of Consumer over-indebtedness [1].
The text was drafted by a committee of leading Brazilian jurists, based in particular on French legislation.
The vaccine
On the prevention side, the law intends to change reality, aiming at more responsible credit concession.
Respecting the structure of the Consumer Code, the legislator included, among the principles of the National Policy on Consumer Relations, the "fostering of actions directed to the financial and environmental education of consumers" and the "prevention and treatment of over-indebtedness as a way to avoid the social exclusion of consumers".
As highlighted by EROS GRAU, Article 4 of the CDC is an "objective rule": it indicates the purpose, the goal of the National Policy of Consumer Relations. Such rule is of vital importance in the interpretation of the CDC: all other rules of the CDC "instrument the realization of the objectives, based on the principles set forth in art.4". And the distinguished professor concludes that the objectives and principles guide the application of the CDC: "the interpreter who approaches them will be applying the CDC. He who departs from them will be breaking the law"[2].
From now on, therefore, in order to achieve the goal of meeting the "needs of consumers, respect for their dignity, health and safety, protection of their economic interests, improvement of their quality of life, as well as the transparency and harmony of consumer relations" set forth in the main section of Article 4, the principles (i) of encouraging actions to educate consumers financially (item IX); and (ii) of preventing and treating consumer over-indebtedness, thus preventing them from being socially excluded (item X), must be observed.
Being familiar with the structure of the Code, the jurists ' commission also included among the basic consumer rights set forth in Article 6 of the CDC, "the guarantee of responsible credit practices, financial education and prevention and treatment of over-indebtedness situations, preserving the existential minimum, pursuant to the regulations, through debt review and renegotiation, among other measures" (clause XI) and "the preservation of the existential minimum, pursuant to the regulations, in debt renegotiation and credit granting" (clause XII).
The essence of the Consumer Code is set forth from article 1 to article 7. In such articles the legislator (i) specifies the principles and basic rights (Articles 4 and 6); (ii) makes explicit the constitutional origin of the Code and that the rules are of public order and social interest (Article 1); (iii) clarifies the hypothesis of incidence of the rule, with its objective and subjective elements (Arts. (Article 2 and 3); (iv) it lists the instruments that the public power may count on to execute the National Policy of Consumer Relations (Article 5); (v) it admits the dialogue of sources in this complete, but porous legal microsystem (Article 7, caput); and (vi) it provides for the joint liability of suppliers (sole paragraph of Article 7). The remaining one hundred and twelve articles of the Code will detail the application of the principles and basic rights set forth in Articles 4 and 6 of the CDC.
Following the structure of the Code, the prevention of over-indebtedness is regulated in detail in a separate chapter (Chapter VI-A).
The Law makes it clear that only bona fide debtors are protected by the rule, such as consumers who, when they made the financial commitment, had sources of funds, but who, in a second moment, had an "accident of life" (loss of employment or income, divorce, birth of a child, etc.) and no longer had sufficient resources to meet the obligation. Alongside consumers who have not actively contributed to insolvency, there are those who have abused credit. In this last case, of active over-indebtedness, there is a grey area, and the degree of awareness of the consumer at the time of taking the credit must be ascertained, to define good or bad faith in the specific case.
The norm brings the concept of "existential minimum", which is not to be confused with the "maintenance of the quality of life". The consumer must have the minimum to maintain their dignity (Article 1, II, of the FC), enabling the fulfillment of their basic needs (feed themselves, pay bills, etc.).
The consumer's basic right to information, provided in art. 6, III, of the CDC and detailed in several articles of the Code, is the object of provision in Arts. 54-B and 54-D of the CDC, establishing what must be stated in the credit offer, giving the consumer the opportunity to be aware of the obligation undertaken.
Also aiming at the responsible concession of credit, Arts. 54-C and 54-G of the CDC prohibit certain abusive conducts of the supplier (Art. 6, IV, of the CDC) when offering credit.
Article 54-F of the CDC establishes the connection of product and service supply agreements with ancillary credit agreements in the events set forth in clauses I and II, providing for the effects in paragraphs 1, 2, 3 and 4 of the same article [3].
The remedy
The treatment is regulated in Chapter V, seeking the conciliation of the consumer with all his creditors, with the presentation of a payment plan (an experience that has already been successful in Rio Grande do Sul).
Unsuccessful conciliation, the process of over-indebtedness is established, in which it is assured to the creditors, the receipt of, at least, the principal amount corrected monetarily. The law is not authorizing the default of the consumer, therefore.
Thus, if one considers the difficulty in recovering such credits today, the law, contrary to what may seem at first glance, may favour creditors by opening a new possibility of receiving at least the adjusted principal of credits considered as lost.
If the conciliations or the process of over-indebtedness are successful, the Law now in force may generate positive microeconomic effects, with the rescue of those consumers who were out of the consumer market, and macroeconomic, when taking into account the billions of reais that would be re-included in the market, by the millions of over-indebted consumers who would start consuming again and paying their debts in installments.
In this way, thinking of Law as an instance of reality [4], the great problem of over-indebted consumers led the Legislator to change the normative text and, consequently, the new law will have the power to change reality. And therein lies the importance of the concrete application of Law as a thought at the service of life [5]. We will all see if the law will achieve the ambitious effects intended.
1] I was able to discuss the topic with some of the Business Law classes of the Post-Graduation course at FGV Direito SP, and the debate was very rich, which is why I would like to take this opportunity to thank my students.
2] Consumer Law Magazine nr. 5, p.188/189. Vicente Ráo, already in 1952, claimed for the need to "restore the meaning, the reach and the strength of the general principles, now threatened, if not of destruction, at least of oblivion". And he added that "the jurist must intervene and reaffirm the basic principles of Law, whose sacrifice would mean the sacrifice of the entire legal order and the brutal break with the past".(O Direito e a Vida dos Direitos, 1º vol.)
3] On the network of related contracts and their legal consequences, BARCELLOS, Rodrigo. The Shopping Center Contract and the Atypical Intercompany Contracts, São Paulo, Atlas, 2009, pages 89/96.
4] Law "is an element of the mode of social production", acting "also as an instrument of social change, interacting in relation to all other levels - or regional structures - of the overall social structure" (Eros Roberto Grau, O Direito posto e o Direito pressuposto, São Paulo, Malheiros, 6th ed.
5] As referred to by Luís S. Cabral de Moncada, in Filosofia do Direito e do Estado.
