I INTRODUCTION TO THE PRODUCT LIABILITY FRAMEWORK

In Brazil, consumer laws were enacted primarily to protect consumers from problems arising from products or services suppliers. The first bill of law for this specific purpose came about in the country in 1977, but the codification of consumer rights took place 11 years later with the enactment of the 1988 Federal Constitution.

The Constitution was responsible for establishing three important principles for consumer protection: protecting consumer rights;2 ensuring its imperative within the economic order;3 and, in the Act of Transitory Constitutional Provisions, making these protective rules mandatory, both in private and public law, by creating the Consumer Protection Code (CDC).4 The CDC was approved in 1990 by the National Congress, and became effective on 11 March 1991.

The enshrinement of the CDC within the Constitution vests consumer protection with extreme importance within Brazilian private law in terms of its social function;5 the protection granted to the consumer goes beyond the mere economic and encompasses the protection of life, health and safety.6

The CDC protects consumer rights both in terms of products and services. Although the CDC is the primary statute, it is not the sole legislative source of rights and obligations applicable to consumer relationships. It is also possible to apply general laws (such as the Civil Code) to fill in gaps in the CDC. Furthermore, there are various other federal laws applicable to specific industries, such as consumer relations involving insurance, telecommunications, the internet, private health services, financial services, and the creation and maintenance of databases. The CDC also has implications for procedural law, especially Law No. 9,099/1995, which created and governs civil and criminal special courts, before which a significant number of consumer lawsuits are heard.

The CDC is thus considered a law of hybrid nature: it contains rules that are civil, administrative and criminal in nature, in addition to rules of procedural law.

Article 2 of the CDC defines ‘consumer’ as an end-user of a product or service, without differentiating between individuals and legal entities, nor between purchasers and users. In practice, the CDC grants equal protection to consumers and to all those that have been victims of defect-related accidents or of any abusive practices listed in Articles 17 and 29.

As far as legal opinions are concerned, there are two theories to define a ‘consumer’: maximalist7 and finalist.8 According to the former (maximalist), a consumer is understood as a person who actually removes an item from the market, irrespective of the purpose of such act, thus encompassing professionals. According to the latter (finalist), the consumer is considered the factual and economic recipient of a product who does not make use of it professionally, thus excluding intermediate consumption, in which the product returns to the production chain.

The Superior Court of Justice (STJ)9 has adopted the finalist theory, but this theory has been applied with moderation in relation to legal entities in a process referred to as ‘deepened finalism’, authorising the application of the CDC even when the consumer is not the final recipient of the product or service but is still vulnerable to actions of a supplier (technical, legal, factual or informational vulnerability).10

The CDC is not applicable when neither party is considered a consumer, as described before. Instead, the general rules set out in the Civil Code will apply, which grants the egalitarian treatment to sellers and purchasers of products and services. The considerations submitted herein mind the application of the CDC’s specific rules.

It must also be emphasised that the Constitution11 establishes concurrent jurisdiction between the federal government, the states and the Federal District to legislate on production and consumption matters. So, as well as federal laws, state and district laws also apply to consumers, the application of which are restricted to the territories of the federative entities in which they were enacted.

II REGULATORY OVERSIGHT

The CDC authorised the creation of the National Consumer Defence System (SNDC).12 This network is made up of private entities and federal, state and municipal agencies, and agencies of the Federal District, including public consumer protection foundations (known as Procons), civil consumer protection associations and the Public Prosecutor’s Office.

There are many public and private entities that form the SNDC, and in order to promote cooperation between them, the Department of Protection and Consumer Defence (DPDC), a federal agency under the Ministry of Justice, was created. Many of the responsibilities of this department were assumed in 2012 by the National Consumer Office (Senacon), also subordinated to the Ministry of Justice.

Senacon carries out activities such as the maintenance of the National Consumer Protection Information System (Sindec), which ensures broad access to consumers and suppliers to information related to the industry so as to allow more transparency in consumer relations.

Senacon is also in charge of managing and inspecting product recalls, as set out in Article 10 of the CDC, paragraphs 1 and 2 of which compel suppliers to communicate to authorities and consumers any possible risks associated with the use of the product identified after its introduction to market. Currently, Ordinance No. 487 of 15 March 2012, enacted by the Ministry of Justice, regulates Article 10 of the CDC and establishes that ‘the supplier of products and services that, subsequent to their introduction on to the consumer market, learns of any hazard such products may have, must immediately notify’: (1) the DPDC (Senacon); (2) a Procon; and (3) any competent regulatory agency.

Senacon also advises consumers on their rights and receives complaints or suggestions submitted by representative entities or public or private legal entities; it further determines whether any consumer rights have been violated and applies administrative penalties in cooperation with the Procons.

As previously noted, Procons are public foundations dedicated to the protection of consumers. The creation of a Procon depends on the administration of each of the states and municipalities. The states and the Federal District have the foundations of the Procons already in place, with offices in the state capitals and also in other important urban centres. A Procon’s main purpose is to harmonise relations between consumers and suppliers by means of the planning, coordination and performance of national and state policies of consumer protection and defence. This takes place at an administrative level without any direct subordination to the judicial branch.

Procons also process consumer claims in which suppliers should attempt conciliation and closure of any potential litigation. Such complaints may also lead to an administrative proceeding. If the existence of any violation of consumer rights is confirmed, the Procon may enforce administrative sanctions on suppliers such as fines, the removal of products or services from the market, cancellation of registration and authorisation to sell such products or services with the competent agency, and prohibition of manufacture or importation of products.

The civil consumer protection associations are non-profit private entities. They are engaged in parallel to public agencies in the protection of individual or class consumer rights. Once they have been in existence for more than a year, the CDC authorises them to file class actions on behalf of consumers.13

The Public Prosecutor’s Offices are authorised, through the establishment of the Consumer Protection Justice Prosecution Offices, to investigate any violations of consumer law and to file lawsuits to ensure collective rights.

III CAUSES OF ACTION

The main causes of action under which suppliers of products and services may be held liable for losses suffered by consumers are the existence of deficiencies or defects in the products and services provided, faults in the provision of clear information to consumers, and misleading advertising or advertising in violation of the rules set out in the CDC.

A product is deemed defective when it does not offer the safety that it is lawfully expected to offer, taking into account the following aspects:14

  • a the presentation of the product;
  • b the use and risks that can reasonably be associated with it; and
  • c the time it was put into circulation.

Specifically, a product may be deemed defective as a result of faults in its design, manufacture, assembly, use, presentation or packaging, or of insufficient or inadequate information about its use and risks.15 In such a case, the law establishes that its domestic or foreign manufacturer, producer, builder and importer are liable for the losses suffered by the consumer, regardless of fault. Merchants are only held liable for such consumer losses when the manufacturer, builder, producer or importer is unknown or when the product is supplied without clearly identifying the manufacturer, builder, producer or importer, or when the product is not properly stored and looked after.16

Likewise, a service is deemed defective when it does not offer the safety that it is expected to offer, taking into account material circumstances, such as the manner of its provision, the result and risks that can be reasonably expected from it, and the duration of the service.17 In such a case, the law establishes that the service provider is liable for the losses suffered by the consumer, regardless of fault.18

In addition to compensation for losses caused by defective products and services, the law provides protection to consumers in the event of faults in products or services. Quality and quantity faults are those that make the product improper or inadequate for its intended consumption, or diminish its value in some way. A fault in the product will also exist in the case of any disparity between the indications in its container, packaging, labelling or advertisement and the product itself.19

Consumers may demand remediation of faults within 30 days. After such period, if the fault is not remedied, consumers may alternatively, at their discretion, demand the replacement of the product by another of the same type that is in perfect working order, the immediate refund of the amount paid, as adjusted for inflation, in addition to any damages, or a proportional price rebate.20

Similarly, in the event of dissatisfaction with the quality of a service, which diminishes its value, as well as in the event of any disparity between the services provided and the description of such in its offer or advertising, the law entitles consumers to the right to demand: a re-performance of the service at no additional charge; an immediate refund of the amount paid, as adjusted for inflation, in addition to any damages; or a proportional price rebate.21

It should be noted that suppliers must be given the right to rectify any faults existing in products and services. Contract termination, with reimbursement of the monies paid, is authorised only when the supplier is not successful in such rectification within the deadline set by the law.

In addition to the aforementioned claims, consumer lawsuits based on product defects or deficiencies usually also include moral damages. The courts usually grant such claims, but such damages are usually only given in small amounts.

The CDC is the main basis for product liability claims, as informed at the first paragraph of this section.

Finally, product and service provider’s officers may be subject to criminal liability, as set out in Articles 61 to 80 of the CDC. Criminal liability may be imposed only against natural persons and based on their fault. Crimes prescribed in the CDC are related to the violation of consumer rights and penalties range from the application of fines up to two years’ imprisonment.

IV LITIGATION

i Forum

The CDC entitles consumers to pursue their rights through any type of action, the only condition being that such action must be able to provide adequate and effective protection of consumer rights.22

A consumer has the right to file a civil liability action against a supplier of products and services in the jurisdiction of his or her own domicile.23 In addition, choice-of-jurisdiction clauses in consumer contracts may have their validity challenged by the consumer, provided that the bringing of an action in the agreed-upon jurisdiction would impede or hamper the defence of consumer rights. In most cases, courts declare the nullity of choice-of-jurisdiction clauses in consumer contracts, thus giving preference to the filing of actions in the jurisdiction of the domicile of the consumer.

Moreover, clauses inserted in consumer contracts establishing mandatory arbitration are automatically null and void, as expressly provided for in Article 51, item VII of the CDC.

Cases involving consumers and suppliers are processed before civil state courts. Ordinary proceedings are followed by the case being heard by a trial court, when defences and evidence may be submitted. The decision issued by such court may be appealed to the State Court of Appeals, whose appeal, as a rule, stays the effects of the trial court decision. The Court of Appeals, through a collegiate body (composed of three judges), renders a decision, either unanimously or by majority, upholding, annulling or reversing the decision of the trial court. Such decision may be appealed to the STJ or the Federal Supreme Court. The hearing of such appeals by the superior courts depends on certain specific requirements being met, and the vast majority of appeals is not even heard by either court.

In addition, there are small claims courts, which are jurisdictional bodies the purpose of which is to reconcile, adjudicate and enforce less complex cases in a more expeditious manner. Actions filed before the small claims courts must follow the procedure set out in Law No. 9099 of 26 September 1995, and claims may not exceed an amount equal to 40 times the minimum wage in the country. In the small claims courts, it is not necessary to advance court costs, and no costs for loss of the suit may be awarded against either party if there is no appeal against the decision. Such measure is intended to facilitate the defence of consumer rights.

Whether to file a civil liability action against suppliers with a court of general jurisdiction or with a small claims court is at the discretion of consumers. Actions filed with small claims courts do follow a simplified proceeding to the extent that, inter alia, the filing of interlocutory appeals is not allowed, the production of complex evidence is prohibited and the intervention of third parties is not allowed. The decision issued by a small claims court may be appealed, without a staying effect, to a panel of three judges, who may, either unanimously or by majority, uphold, annul or reverse the decision of the small claims court.

ii Burden of proof

The general rule in Brazilian procedural law is to place upon each of the parties to a dispute the burden of proving the allegations they have presented in the case. The shifting of the burden of proof in certain circumstances is, however, possible; for instance, when the claim involves a consumer on one side and a supplier on the other. Article 6 of the CDC provides the facilitation of the defence of a consumer’s rights in the courts, including by shifting the burden of proof in his or her favour in civil cases. The recently enacted new Code of Civil Procedure also establishes the possibility of the court determining the shifting of the burden of the proof.

Such shifting is not automatic by operation of law, and depends on the discretion of the court, which must check whether the consumer’s claim is honest and whether there is indeed vulnerability before the supplier. In addition, it must also examine whether such shifting will benefit the production of the evidence.24

The courts and the legal community were split over what constitutes an appropriate time for shifting the burden of proof over the course of proceedings. In May 2012, the STJ issued a (non-binding) precedent stating that the shifting of the burden of proof relates to the evidentiary stage, not the adjudication; thus, the court should order its application when the proceeding is still at its initial stage, not when it is adjudicating the case.25 The new Code of Civil Procedure, in force since March 2016, determines that the eventful shifting of the burden of the proof shall be determined before the beginning of the evidentiary stage of the proceeding (Article 357’, III).

iii Defences

The liability of the supplier for losses caused to consumers by its products or services is strict, and the consumer must simply demonstrate the existence of the loss and its causal connection with the deficiency or fault to necessitate compensation, regardless of any proof of fault of the supplier.

To avoid being held liable, the supplier of products must rely on one of the exclusions set out in Article 12, paragraph 3 of the CDC.

In the first instance, the supplier may prove that it was not responsible for placing the defective product on the market. This exclusion cannot be relied upon even if the supplier has placed the product on the market only in order to test it. Likewise, a supplier that had its product introduced by an agent or representative cannot rely on this to exempt itself from liability.

In the second instance, the supplier will not be held liable if it can prove that the alleged defect does not exist.

Finally, the supplier will not be held liable for damages if the loss has been caused by improper use of the product by the consumer or by a third party. The exclusion of liability of a service provider occurs in similar events. Under Article 14, paragraph 3 of the CDC, the liability of the supplier is excluded if it proves that the defect does not exist or that the loss resulted entirely from the fault of the consumer or of any third parties.

The statute of limitations applicable to consumer claims for damages based on product or service liability is five years26 from the date on which the consumer becomes aware of the loss and of the liability for such loss. General statute of limitation rules set out in Brazilian law allow the interruption of the period only once and only in limited events.27

In addition, the CDC provides that consumer claims for apparent or easy-to-find defects is barred by pre-emption within 30 days, in the case of a non-durable service or product; or within 90 days, in the case of a durable service or product. This pre-emptive period begins to run from the date of delivery of the product or completion of the service.28

iv Personal jurisdiction

From the point of view of jurisdiction, Brazil is a unitary state. Thus, it is a single jurisdiction that has authority over all federated states. Article 21 of the Code of Civil Procedure provides that the Brazilian courts have jurisdiction when: (1) the respondent, regardless of nationality, is domiciled in Brazil, in which case a foreign legal entity that maintains an office, branch or subsidiary in the country is deemed domiciled in the country; (2) the obligation is to be performed in Brazil; or (3) the action originates from something occurring or action taken in Brazil.

In short, all suppliers that have businesses in the country, either directly or through representatives, are subject to Brazilian jurisdiction. As already explained, clauses establishing any jurisdiction other than the domicile of the consumer as the competent jurisdiction may be deemed null and void if they hamper or impede the defence of his or her rights in court.

v Expert witnesses

When ‘proof of a fact depends on technical or scientific knowledge, the court shall be assisted by an expert in accordance with the provisions of Article 156’ of the Brazilian Code of Civil Procedure. In cases involving product liability, expert evidence is usually produced to determine the actual existence and causes of the alleged problems.

Upon granting the production of expert evidence, the court will appoint an expert it finds reliable to act as an expert witness, as well as allowing the parties to appoint their own retained experts and formulate questions in order to settle the disputed issue.

Retained experts appointed by the parties may participate in all of the production of expert evidence by attending the hearing and then submitting a technical opinion containing their findings on the opinion of the court-appointed expert.

The parties may also request, after the production of expert evidence, that the expert witness be heard at a hearing to provide clarification. The testimony of such expert witness is not, however, regarded as testimonial evidence, but as a continuation of the expert evidence previously started.

On the other hand, the opinion submitted by the expert witness is just another element available to the court, and the court does not need to limit its findings to such evidence if it understands that it is not sufficient. The court may even decide against using expert evidence if justified by other evidence in the case.

It should, however, be mentioned that nothing prevents the court from using other types of evidence to make its findings, as it is not limited to any type of evidence produced in the proceedings. Furthermore, opinions of expert witnesses, although prepared by experts, are often inconclusive.

vi Discovery

Brazilian procedural law, the same as many other civil law jurisdictions, does not provide for a discovery phase in proceedings. Evidence is usually produced during the course of the proceeding itself.

There are few exceptions to such rules, but they are applicable only in cases in which the interested party demonstrates urgency in the need for production of the evidence before filing the claim. In product liability claims, this exception usually applies in cases in which an expert examination is necessary, but waiting until the filing of the claim and the beginning of the evidentiary phase may frustrate the analysis by the expert owing to the perishing of the allegedly defective product. Parties may also request a court order to compel the opposing party to provide documents in court.

Plaintiffs may claim for the disclosure of documents or disclosure of an object that must be examined; however, this precautionary request can be filed only if the plaintiff demonstrates that without the disclosure of such document or object the claim may not be processed. In other words, plaintiffs must prove that the examination of the document or object is essential for the comprehension and acknowledgment of the matter under analysis.

In Brazilian procedural law, the acceptable types of evidence are (1) depositions by the parties, (2) confessions, (3) discovery of a document or item, (4) documentary evidence, (5) testimonial evidence, (6) expert evidence and (7) judicial inspections.

In cases of claims involving liability for allegedly defective products, all means admitted in law are applicable, but in most cases, given the nature of such matters, technical opinions clarifying disputed issues regarding an alleged manufacturing defect are essential.

As such, certain types of evidence may be subject to certain limitations, such as depositions of the parties and testimonial evidence, which are commonly used for clarification of factual – but not necessarily technical – situations. Accordingly, expert evidence and documentary evidence become of paramount importance to illuminate the issues raised by the parties.

In relation to documents in a foreign language, local court precedents29 and applicable law30 have settled that their procedural use depends on their translation into Portuguese by a certified translator. Therefore, there is no restriction on the use of such documents relating to liability for defective products, provided the requirements for their admissibility are met.

Finally, with respect to evidence produced in similar cases, court precedents31 support the understanding that such evidence is admissible, although it remains subject to certain requirements, such as the submission of such evidence for adversarial testing32 and a minimum level of similarity between the relevant cases.

vii Apportionment

The CDC establishes strict liability on suppliers,33 through which all suppliers in the consumption chain are responsible for any defects or faults in products or services, irrespective of the proof of fault. Therefore, consumers faced with a fault or defect in a product may direct its claim for redress of moral or property damages to any of the entities of the consumer chain.

In addition, according to the CDC, it is not possible to share liability for damages between suppliers with respect to one particular consumer in the same proceeding. As liability is joint, the sued supplier must respond in full to the consumer, except when there exists a right of recourse in relation to the responsible party in a specific action.

When a company that has engaged in a relationship with consumers has been acquired, the successor company can be sued to repair any damages arising from faults or defects in products or services provided by the former company.

Finally, as a rule, liability is limited to the supplier’s legal entity. Partners and managers can only be held liable, exceptionally, in the event of abuse of the corporate entity. According to Article 50 of the Civil Code, cases of such abuse, characterised by the changing of purpose or patrimonial confusion with regard to the corporate structure, a judge may extend obligations to the private assets of the managers or partners of the corporate entity. Specifically in the consumer sphere, Article 28 of the CDC provides express authorisation for a judge to determine such abuse in the event of supplier insolvency, regardless of fulfilment of the requirements of Article 50 of the Civil Code.

viii Mass tort actions

The CDC determines, in Articles 81 to 104, that class actions may be brought if disparate interests or rights, collective interests or rights, or individual homogeneous rights are in question.34

The following are qualified to file class actions:35

  • a the Public Prosecutor’s Office;
  • b the federal government;
  • c states;
  • d municipalities and the Federal District; and
  • e public authorities, associations and foundations for consumer protection.

In terms of location, the CDC states that, except in cases applicable to the Federal Court, the action must be filed either at a local level in the court of the place where the damage occurred or, for national or regional damages, in the judicial district of the city and state or the Federal District, with the rules of the Code of Civil Procedure applying to cases of concurrent jurisdiction.36

ix Damages

In actions founded on the civil liability of the supplier of products and services, the consumer may claim full compensation for any damages suffered, which include not only what has actually been lost, but also reasonable loss of profits. Monetary reinstatement and default interest plus contractual fines will also form part of the damages. Moreover, as already stated, the law ensures the possibility of compensation for moral damages.

The award to defendants in indemnity actions of the payment of punitive damages is not foreseen in Brazil, nor is there legislation setting out indemnity amounts. In order to prevent or reduce any damages caused to consumers, the court may determine the adoption of specific measures such as early relief under penalty of sanctions in the event of non-compliance.

Article 56 of the CDC provides an exhaustive list of administrative penalties that may be applied by entities that are part of the SNDC, in the event of violation of the rules set out therein. They are:

  • a fines;
  • b seizure of the defective product;
  • c product destruction;
  • d cancellation of registration;
  • e product manufacturing prohibition;
  • f suspension of supply;
  • g temporary suspension of business,
  • h revocation of concession or permission of use;
  • i repeal of licence or closure of the business;
  • j administrative intervention; and
  • k counter-advertising.

These penalties may be applied on a cumulative basis by the authorities, including by means of an injunction, before or during an administrative proceeding to investigate breaches of consumer laws.

The CDC also provides, in Articles 61 to 74, crimes against consumer rights. Such crimes, although considered of a lesser degree, can be punished by the imprisonment of the officers, directors or representatives of the suppliers for up to two years, plus a fine.

V YEAR IN REVIEW

Recently, legislative proposals, case law and also administrative discussion have been focusing on the collective protection of rights. As a result, we highlight the increase in the number of recall procedures, especially in the automotive sector and food industry.

Moreover, the new Code of Civil Procedure, in force from March 2016, enhances the existing system of judgment of overlapping actions based on the ruling of a binding precedent. The new procedural law authorises courts to judge overlapping actions and form their own binding precedents, applicable in their respective jurisdiction.

Internet and e-commerce is also in focus in the current year. For example, in October 2016 the Brazilian Superior Court of Justice rejected the liability of internet search engines for defective products shown on their websites.37 Internet and e-commerce issues have been increasing over the years, mainly because of the advance of social media, and they will likely be a matter of attention in 2017. Special attention should be given to the legislative measures intended to limit access to the internet, by authorising internet suppliers to cease their services if consumers exceed their internet data plans.

The application of government’s Provisional Measure No. 764, of 27 December 2016, will be a highlight in 2017. This Provisional Measure allows product suppliers to give discounts depending on the payment method elected by consumers. According to current Brazilian courts precedents, giving discounts for immediate payments, rather than through instalments, is misconduct because it allows suppliers to charge imputed interest. Following the Provisional Measure it is now a lawful commercial practice, and the Brazilian courts’ understanding will have to adapt to this new legislation.


Footnotes

1 Fabio Teixeira Ozi is a partner and Murilo Castineira Brunner is an associate at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados.

2 Article 5(XXXIII) of the Federal Constitution.

3 Article 170 of the Federal Constitution.

4 Article 48 of the ADCT.

5 Bessa, Leonardo Roscoe. ‘National System for Consumer Protection’. In Benjamin, Antônio Herman V; Marques, Cláudia Lima; Bessa, Leonardo Roscoe. Manual de Direito do Consumidor. São Paulo: Revista dos Tribunais, 2008.

6 Article 6, Item I of the Consumer Protection Code.

7 Benjamin, Antônio Herman V; Marques, Claudia Lima; Bessa, Leonardo Roscoe. Manual de Direito do Consumidor, 4th edition, reviewed and extended, São Paulo: Editora Revista dos Tribunais, 2012, p. 91.

8 Ibid., pp. 89–90.

9 A federal court that tries cases at final level in which violation is alleged of federal laws or discrepancies in the construal and application of such laws.

10 Special Appeal No. 1.195.642/RJ, Third STJ Panel, Reporting Justice Nancy Andrighi, tried on 12 November 2012.

11 Article 24, item V of the Federal Constitution.

12 Article 106 of the Consumer Protection Code.

13 Article 82, item IV of the CDC.

14 Article 12, paragraph 1 of the CDC.

15 Article 12, main provision of the CDC.

16 Article 13, main provision of the CDC.

17 Article 14, paragraph 1 of the CDC.

18 Article 14, main provision of the CDC.

19 Article 18, main provision of the CDC.

20 Article 18, paragraph 1 of the CDC.

21 Article 20, main provision of the CDC.

22 Article 83 of the CDC.

23 Article 101, item I of the CDC.

24 Article 6, item VIII of the CDC.

25 Second Division, EREsp No. 422.778-SP, original Reporting Justice: João Otávio de Noronha, ad hoc Reporting Justice: Maria Isabel Gallotti (Article 52, IV, b of the Internal Regulations of the Superior Court of Justice), trial date 29 February 2012.

26 Article 27 of the CDC.

27 Article 202 of the Civil Code: ‘The interruption of the statute of limitations, which may only occur once, shall occur: I Upon an order from a court, even if it lacks jurisdiction, ordering that process be served, if the interested party provides such service within the time and in the form set forth in procedural law; II Upon protest, in the same conditions set forth in the preceding item; III Upon protest of a negotiable instrument; IV Upon submission of the negotiable instrument to the probate court or in a bankruptcy proceeding; V Upon any judicial act that puts the debtor in default; or VI Upon any unambiguous act, albeit extrajudicial, that implies acknowledgement of the claim by the debtor. Sole paragraph: Such interrupted statute of limitations resumes from the date of the act that interrupted it or of the last act of the process that interrupted it.’

28 Article 26, main provision and paragraph 1 of the CDC.

29 Superior Court of Justice (STJ), 3rd Panel, REsp No. 606393, Reporting Justice: Humberto Gomes de Barros, trial date 19 May 2005.

30 Article 192 of the Code of Civil Procedure.

31 São Paulo State Court of Appeals (TJSP), 9th Chamber of Private Law, Interlocutory Appeal No. 0018700-10.2012.8.26.0000, Reporting Judge: Piva Rodrigues, trial date 24 April 2012.

32 STJ, 2nd Panel, AgRg no AREsp No. 455198, Reporting Justice: Mauro Campbell Marques, trial date 18 March 2014.

33 Article 12 et seq.

34 Article 81 of the CDC.

35 Article 82 of the CDC.

36 Article 93 of the CDC.

37 STJ, 3rd Panel, REsp No. 1444008, Reporting Justice: Nancy Andrighi, trial date 25 October 2016.