Data

Date:: 25-05-2021
Country:: Brazil
Number:: XXXXX-62.2019.8.13.0049
Court:: Juizado Especial Cível de la Comarca de Bom Despacho, Tribunal de Justiça de Minas Gerais
Parties:: Elizabeth Porcelanato Ltda. v. Bela Casa Materiais de Construcao LTDA - ME

Keywords

SERVICE CONTRACT FOR MOBILE PHONE TECHNICAL SUPPORT – BETWEEN TWO BRAZILIAN PARTIES - REFERENCE TO UNIDROIT PRINCIPLES TO CONFIRM THAT SOLUTION PROVIDED BY APPLICABLE DOMESTIC LAW IS IN CONFORMITY WITH INTERNATIONAL STANDARDS (BRAZILIAN LAW)

REFERENCE TO ART. ART. 7.4.8 UNIDROIT PRINCIPLES IN ORDER TO AFFIRM THAT THE NON-PERFORMING PARTY IS NOT LIABLE FOR HARM SUFFERED BY THE AGGRIEVED PARTY TO THE EXTENT THAT THE HARM COULD HAVE BEEN REDUCED BY THE LATTER PARTY’S TAKING REASONABLE STEPS

Abstract

A Brazilian telecommunications company was sued by a Brazilian legal entity after the unjustified interruption of telephone service. The plaintiff alleged that, as a direct consequence of this interruption, one of its clients—Selma—filed a claim against it for material and moral damages, which had affected its business image among third parties. It therefore requested compensation for material and moral damages.

The Court began by recalling that, in the case of legal entities, moral damages are not automatically presumed in the event of a service interruption: it is necessary to demonstrate that there was concrete harm to their objective reputation. In this case, this evidence was considered sufficient, given the legal action initiated by the client, which called into question the company's reputation.

When setting the amount for moral damages, the Court applied the two-phase method used by the Superior Court of Justice (STJ). This method begins with an analysis of precedents in similar cases to determine a base value, and then adjusts that amount according to the circumstances of the specific case, such as the severity of the incident, the conduct of the parties, and their financial capacity. In the first stage, it was found that, in similar cases, the values ranged between R$5,000 and R$14,480. In the second stage, the judge determined that there were no factors that particularly aggravated the damages, and that both parties had significant financial capacity. Thus, he set compensation for moral damages at R$10,000.

Regarding material damages, two items were recognized: the payment that the plaintiff company had to make to the client Selma as a result of its own contractual breach, and the reimbursement of the legal costs it incurred in that proceeding. These amounts were set at R$14,000 and R$750, respectively, with monetary correction from the disbursement and late payment interest from the damaging event.

Finally, the judge determined that the monetary compensation for non-material damages would be applied from the date of the judgment, and interest would be applied from the moment the claim was filed. Since the case was processed under the rules of special courts, no costs or fees were awarded.

The ruling ultimately recognizes that a legal entity may suffer non-material damages when its reputation with third parties is compromised by a service provider's failure, provided that a causal link is proven and the principle of proportionality is respected in determining compensation.

Excerpts of interest:

There are also other express provisions of the institute, such as the Unidroit Principles (art. 7.4.8), referring to international trade contracts, published in 1994 in Rome, and the European Contract Code, both with identical theory:
(1) The non-performing party is not liable for harm suffered by the aggrieved party to the extent that the harm could have been reduced by the latter party’s taking reasonable steps.
(2) The aggrieved party is entitled to recover any expenses reasonably incurred in attempting to reduce the harm.
Due to these considerations, it is important now to outline how the duty to mitigate the loss is applied in Brazil.

English translation of the Spanish abstract written by Alejandro Gómez-Coronado Castillo for CISG Spain

Fulltext

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Source

Abstract and fulltext in Spanish:
- available at the University of Carlos III website, http://www.cisgspanish.com}}