The nonexistent indemnifiable illegality in recall campaigns
The opening of a recall campaign is a licit procedure that is demandable from suppliers when there is health and/or safety risk for the consumers, due to a defect in the product inserted in the market. It is a preventive instrument that is characteristic of the consumer society, established in article 10 and its paragraphs of the Federal Law 8.078/90 – Consumer Defense Code.
As a matter of fact, there is a parallel to be traced between the post-contractual liability and the recall procedure, with the application of the principle of good faith in this phase of negotiations. The recall avoids the need for the supplier to support a wide range of indemnification suits from those who could eventually incur damages. It is a preventive procedure in which the supplier acts before potential damaging events.
In Brazil, however, it is common for a consumer of a product involved in a recall campaign to file a lawsuit demanding indemnification for moral damages. The Courts, though, have ruled that the legal discipline of the recall procedure (Ordinance n. 487/12 of the Ministry of Justice) only determines that the corrective measures for the defect must be informed to the consumers, as well as to the entities for consumer defense, especially the Department of Consumer Protection and Defense – DPDC, which is bound to the Ministry of Justice. In other words, if there was any irregularity in the deadlines and means of support divulged in the recall campaign, the consumer defense authorities would have raised such points and/or penalized the supplier, actions which, as a rule, do not happen.
Regarding the lack of the duty to indemnify, the following decision of the Superior Court of Justice ratifies the lack of aggression to the immaterial heritage of the consumer: “LAWSUIT FOR INDEMNIFICATION OF MORAL DAMAGES. RECALL CAMPAIGN FROM AUTOMAKER FOR THE CORRECTION OF A DEFECT. CORRECTION MADE. MORAL DAMAGES INEXISTENT. The mere procedure of a recall by an automaker in order to correct a manufacturing defect in seatbelts does not constitute, by itself, an act that is offensive to life, honor, safety, health or even to the tranquility, which are capable of generating an indemnification for moral damages. The thesis that was defended by the claimant, that the moral damages occurred in the moment that the company called all consumers for the correction of a defect, has no legal basis. The violation of a right without the occurrence of damages is impossible. The only inconvenience suffered when knowing of the recall campaign was the need for the consumer to go to the car dealership, where the defect was repaired. The claimant did not suffer any emotional shock that could authorize the incidence of moral damages. There is nothing else to be said, except that the claimant has tried to transform a moral damage indemnification suit into a panacea for all ills, forgetting that one must not use lawsuits for disreputable means such as unjust enrichment in the present case. (Superior Court of Justice – Fourth Chamber – Appeal n. 675.453 – Presiding Judge: Minister Aldir Passarinho Jr. 14/02/06 – p. 13/03/06)” (TJSP, 1003365-10.2017.8.26.0306).
As it can be seen, such recall procedure is licit and provided by the Consumer Defense Code, and once the company complies with all accessory obligations verified by the competent entities, there is no practice of an illicit act that is able to generate an indemnification.