 | Issue: | Latin America II 2000 |
| Article no.: | 10 | |
| Topic: | E-Commerce Law in Brazil | |
| Author: | Georges Charles Fischer | |
| Title: | Senior Partner | |
| Organisation: | Fischer & Forster Advogados | |
| PDF size: | 20KB |
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Article abstract
There are no specific laws in Brazil that deal with electronic commerce. In the absence of specific laws, electronic contracts are governed by the general principles set out in the 1916 Brazilian Civil Code (CC), the 1850 Brazilian Commercial Code and the 1990 Brazilian Consumer Code (Consumer Code), among other relevant statutes.
Full Article
As a general rule, the validity of a contract depends upon: o the legal capacity of the parties; o the legality of the object of the contract; and o being in a form required, or not prohibited, by law (Article 82 of the CC).In this regard, only a small number of contracts, such as those involving real estate (Article 134, II, of the CC), are subject to specific legal formalities. Under Brazilian law, contracts need not be necessarily in written form or, when in writing, formally signed in order to be valid and enforceable (Article 129 of the CC). Acceptance of a contract can be inferred from the acts or conduct of the parties. In principle, mail contracts or even verbal contracts – provided the latter are duly witnessed – are fully enforceable, to the extent relevant legal requirements and formalities, if any, are complied with (Articles 1079 and 1086 of the CC. Thus, the general rule under Brazilian law is freedom of form. The essential element of a contract is the agreement of the parties, which is often expressed by the acceptance of an offer. As a result, the mere fact that a contract has been created by electronic means should not impair its validity or enforceability. In principle, the offeror is bound by the offer, unless the offer itself states the contrary, or the business custom or the circumstances surrounding the transaction warrant a different conclusion (Article 1080 of the CC). Thus, when a prospective customer accesses an electronic page and places an order, a binding contract between the offeror and the customer is created. The offeror and customer become bound to the contract at the moment the customer mails its acceptance, with some exceptions. These exceptions apply when: o the customer withdraws its acceptance before the acceptance reaches the offeror; o the customer indicates that the contract will go into effect upon the offeror’s explicit acceptance (as in the case of a counter offer); or o the acceptance is not received by the offeror by the close of the term of validity of the offer (Article 1086 of the CC). On-line transactions would likely be deemed contracts between “present” parties (as opposed to “absent” parties), despite the physical distance. As a result, failure by the offeree (customer) to immediately accept an offer that does not contain a fixed term of validity releases the offeror from the obligation to honour the offer (Article 1081, I, of the CC An offer that is not limited by time does not need to be honoured unless im-mediately accepted and if the transaction is between parties that are meeting face to face. Transactions made over the phone are deemed to be transactions between people meeting face to face. As a result, real time transactions where both parties are sitting in front of a computer (instead of speaking over the phone) will likely qualify as transactions between present parties. “…consumers may revoke, within seven days counted from execution of the contract or delivery of goods, contracts that were entered into outside of the premises of the offeror.” E-mail contracts, in turn, in which transactions are not concluded on the spot, would probably be deemed contracts between absent parties, similar to those that take place by mail (Article 1086 of the CC). Under the Consumer Code, consumers may revoke, within seven days counted from execution of the contract or delivery of goods, contracts that were entered into outside of the premises of the offeror. The Consumer Code does not specify immovable property (real estate, a building…), but that is what certainly is meant by “premises of offeror.” It is unlikely that a home page would be considered a premise. The purpose of the provision was to permit consumers to unilaterally rescind the transaction in cases where merchandise was purchased sight unseen. The provision would typically permit consumers to return the merchandise for a refund. Perhaps with the passage of time when one will be able to virtually “touch” goods on the screen, the juris-prudence will evolve to accept a home page as a premise. The Consumer Code provides protection to both individuals and legal entities that acquire goods in the capacity of end-users. “…both legal scholars and jurisprudence agreed that the interpretation of these .contracts – adhesion contracts is subject to special rules.” Although Brazilian law made no specific reference to adhesion contracts until 1990 (when the Consumer Code was enacted), such contracts were nevertheless recognized by Brazilian legal scholars and jurisprudence as generally valid and enforceable long before such time. Moreover, both legal scholars and jurisprudence agreed that the interpretation of these contracts is subject to special rules. An adhesion contract may be defined as a standardised contract under which the seller of goods or services offers the same to a customer on an essentially “take it or leave it” basis; that is, the adhering party is not given a realistic opportunity to bargain. This is the case, for example, for contracts commonly used for the sale of goods on the Internet. Moreover, though in many cases adhesion contracts are in fact signed by the adhering party, this is not an absolute prerequisite for their validity and enforceability under Brazilian law. Acceptance of an adhesion contract can be inferred from the accepting party’s acts or conduct. Since an adhesion contract relegates to the subscribing party only the opportunity to adhere to its terms or reject it and, as a result, does not satisfy the freedom of bargaining principle, which is so dear to Brazilian Civil Law, both legal scholars and the courts and, more recently, positive law have established a number of rules that are clearly protective of the party in the weaker bargaining position. Obscure or ambiguous language in an adhesion contract is generally interpreted in a manner most favourable to the weaker party. Moreover, courts have repeatedly declared void provisions in adhesion contracts deemed abusive or that place the weaker party at a clear disadvantage. The abusive or disadvantageous nature of a contractual provision, however, is determined on a case-by-case basis. The Consumer Code also may be used to invalidate consumer contracts where the buyer is denied the opportunity to review the contract before acceptance, or where the contract is written so that the meaning is difficult to understand (Article 46). “The risks of entering into agreements with individuals .that do not have legal capacity,… should be reduced by the use of codes, encryption keys, digital signatures and certifying authorities.” The same persons (individuals or entities) that are authorised to execute agreements may, in general, also enter into electronic contracts. The risks of entering into agreements with individuals that do not have legal capacity, e.g. minors or company employees that do not have the required legal authority, should be reduced by the use of codes, encryption keys, digital signatures and certifying authorities. Sellers will probably want to take advantage of all available technical means, if necessary, to demonstrate to a court of competent jurisdiction the authenticity of both the relevant electronic contract and the customer’s agreement. If the person accepting the click wrap contract does not have the proper capacity or authority, the transaction would be either void or voidable, as the case may be. In such an event, the transaction should be canceled and money should be refunded to the payor when the goods are returned to the seller. If goods are not returned and the seller is not paid, the seller would become entitled to claim indemnity (Article 158 of the CC).The most difficult issue that plaintiff would face in enforcing an electronic contract in a Brazilian court, would not be that of showing that the contract is valid and enforceable, but rather convincing the court that the media and the form of acceptance of the contract are sufficiently reliable to constitute legal evidence. To that end, the court is likely to rely on the opinion of technical experts. Conclusion No digital signature law yet exists in Brazil. The Sao Paulo Chapter of the Brazilian Bar Association has produced, however, a draft bill regulating electronic documents and digital signatures. Moreover, at least one local company is already issuing digital certificates, which are stored on a browser or server to identify the communicating parties. Several bills, which aim to make electronic contracts more secure, are currently pending before Congress.
