Consumers are defined as the final recipients of products or services, according to art. 2nd of the Consumer Protection Code (CDC). However, art. 17 of the CDC states that people affected by damages caused by a product or service are also equated with consumers.

Thus, since its promulgation, the CDC allows the expansion of the concept of consumer to also include "collateral" victims caused in the context of the production and consumption chain.

The subject arouses the attention of companies and lawyers, including for its impacts on business in general, and each judgment of the Superior Court of Justice (STJ) on the issue rekindles the interest of scholars.

In several cases mentioned below, we can see how the STJ's precedents on the consumer by equivalence matter have been evolving over time.

In 2012, for example, when ruling a case involving a vehicle accident, one of them being a taxi, the STJ understood that "the subject of the consumer relationship does not necessarily have to be a contracting party, but may also be a third party victimized by this relationship that U.S. law – in which the institute originated – calls a bystander."[1]

Although, in this case, there was no effective assimilation of the victim to a consumer because the taxi was not in service at the time of the collision, there was, as can be seen from the transcribed excerpt, recognition of the possibility of application of the institute.

Also in 2012, during the assessment of a famous case of aircraft accident, the STJ recognized that all those who were affected by the disaster, regardless of whether they were passengers of the affected airplane, should be considered consumers by equivalence.

The reporting minister in the case stressed that "the victims of air accidents located on the surface are consumers by equivalence (bystanders), and the rules of the Consumer Protection Code regarding damages due to the fact of the service (art. 17, CDC) should be extended to them."[2]

In 2016, when faced with a case involving oil spill in an area of environmental protection, the STJ granted the application of the CDC to the victims of the harmful event by equivalence: "The authors were victims of a consumer accident, since their fishing activities were harmed by the oil spill that occurred in the State of Rio de Janeiro. The provisions of article 17 of the Consumer Protection Code shall apply to the case."[3]

More recently, in 2020, the STJ's understanding was tested during the trial of a case about the running over of a street cleaner by a bus carrying passengers. That is, the victimized professional had no connection with the consumption relationship between passengers (all were unscathed from the accident) and the carrier.

Even so, the rapporteur judge of the case in STJ asserted the following: "The
circumstance that the only victim of the accident caused by the bus owned by the defendant, when providing services for the transport of persons in Rio de Janeiro, being a third party to the consumer relationship does not remove his condition as a consumer by equivalence, but exactly materializes the hypothesis of article 17 of the CDC,  which expanded the basic concept of consumer of article 2nd of Law 8078/90".[4]

Thus, the STJ understood that it is enough to have a consumer relationship and that the service or product is being offered within the scope of the CDC so that, in the accident resulting from this relationship, the consumer legislation and all its protective institutes apply to the victims, involved or not in the consumption chain itself.

In this context, although none of the carrier's direct consumers was injured, STJ decided to extend the CDC's protective measures to the street cleaner victimized by equivalence.

Finally, in 2023, STJ once again ruled on the possibility of equating accident victims to consumers: in an action for compensation of damages resulting from the exploitation of hydroelectric plants, it was questioned whether the victims of such damages could be considered consumers by equivalence.

In this opportunity, STJ alluded to the theory of enterprise risk adopted by the CDC, concluding that "in the event of individual damages arising from the exercise of business activity aimed at the manufacture of products or provision of services, it is possible, due to the characterization of the consumer accident, the recognition of the figure of the consumer by equivalence,  which attracts the incidence of the provisions of the Consumer Protection Code".[5]

In analyzing these precedents, it is possible to observe a continuous evolution of the issue in the court. It is strategically important to closely monitor this evolution, since the correct and rapid identification of consumers by equivalence in concrete cases allows to determine whether consumer protection legislation can be applied with the aim of balancing the relationship between consumers, even those assimilated, and suppliers.

Identifying in each specific case who the potential consumers are (even if by equivalence) allows the supplier of products and services to anticipate crucial issues in disputes, such as the facilitated application of the reversal of the burden of proof, the competence for the processing of actions and even the rights to be observed by the judge.

 

[1]REsp 1125276/RJ, rel. Minister Nancy Andrighi, Third Class, judged on 02/28/2012, DJe 03/07/2012.

[2]REsp 1281090/SP, rel. Minister Luis Felipe Salomão, Fourth Class, judged on 07/02/2012, DJe 15.03.2012.

[3] CC No. 143.204/RJ, rapporteur Minister Ricardo Villas Bôas Cueva, Second Section, judged on 02.29.2016. In the same sense, "According to the jurisprudence of this Superior Court, defined in a case similar to that of the case, in the present hypothesis, the authors are comparable to consumers, configuring the oil spill as a consumer accident, which, supposedly, would have harmed the fishing activity of the interested parties" (CC n. 132.505/RJ, rapporteur Minister Ricardo Villas Bôas Cueva, Second Section,  Judged on 03.02.2015).

[4]REsp 178.731-8, rapporteur Minister Paulo De Tarso Sanseverino, Third Class, judged on 06/16/2020, DJe 06.18.2020.

[5]REsp n. 2.018.386/BA, rapporteur Minister Nancy Andrighi, Second Section, judged on 10/5/2023, DJe of 12/5/2023.