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Informações sobre o processo
- ID nacional: Supreme Court, Judgment 1161/14.7T2AVR.P1.S1
- Estado-Membro: Portugal
- Designação comum:N/A
- Tipo de decisão: Decisão do Supremo Tribunal
- Data da decisão: 06/04/2017
- Tribunal: Supreme Court
- Assunto:
- Requerente:
- Requerido:
- Palavras-chave: B2C, conformity, consumer goods, consumer guarantee, consumer rights, contract law, legal actions, legal guarantee, legal rights, liability, presumption of conformity, service contract, terms and conditions, transposition, vulnerable consumer

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Artigos da diretiva

Consumer Sales and Guarantees Directive, link
Nota introdutória

Work contract concluded between a professional and a consumer for a vehicle’s reparation; Expiration of the right for the elimination of the defect of the delivered work; Recognition by the company of the consumer’s right to the elimination of defects, as an impending fact of the expiration; “Doctrine of one’s own acts.” The recognition by the professional of the reparation right before the expiration of the two years expiry time, in accordance with article 1 of the Directive; The consumer may then appeal to the rights emerging from article 4 of the Directive 1999/44.
Factos

The plaintiff (consumer) files a lawsuit against two companies:

- Company A: engaged in the trade of electromechanical and mechanical goods, as well as other services (IT, treasury, management, economic consultancy and representation of other companies of the same group in the territory of Portugal);

- Company B: authorised workshop.

Company A advertises the services provided by company B (hereinafter, official workshop), but doesn’t obtain percentages of the profits obtained by the workshop, nor has workshops, so it doesn’t provide mechanical services.

In June 2011 the plaintiff goes to the official workshop for a replacement of the distribution system and the water pump of his van. On the same day he is informed that the replacement has been made, so he can collect his van. A week after the repair, the van is transported to the official workshop again by a fault that is listed in the workshop as "possible insufficient lubrication". The plaintiff transports his van to another workshop to ask for a second opinion and, after the review, he is informed that there is no failure in the lubrication and that the piston had ruptured due to a blow. The official workshop managers went to the second workshop to re-inspect the van, after which, they issue a declaration exonerating themselves from the responsibility for such breakage.

The plaintiff proceeded to make an extrajudicial claim before the Organisation for the Defence of the Consumer against the official workshop. During the month of July, the plaintiff was contacted by the managers of the official workshop offering to take responsibility for the event if a report was made by an independent expert and the report attributes the damage to the repair carried out in their workshop. The plaintiff hired and paid for expert services. In August, the inspection of the vehicle was carried out by the entity of expertise and the report concluded that the damages of the engine were related to the repair carried out by the official workshop.

The official workshop assumed the responsibility and asked the plaintiff to take the vehicle to the workshop to proceed with the repair and took the opportunity to point out that the plaintiff had paid 411.08 euros for the repair, so the replacement could not be disproportionately expensive for them. The plaintiff and the official workshop entered into negotiations, always mediated by company A. The plaintiff requests the court that company A and the official workshop be condemned to compensate him for the damages suffered as a result of the damage that occurred in his vehicle.

Company A alleges that they did not intervene at any time in the repair of the vehicle.

The official workshop, on the other hand, invokes the exception of the right of action, since the repair took place in June 2011 and the claim was filed in June 2014, more than two years after the delivery of the vehicle, to which it adds that it doesn’t recognise having made a deficient repair and that, therefore, its intervention is not the cause of the damages suffered.
Questões jurídicas

The acknowledgment by the official workshop of the existence of the right to repair the vehicle constitutes an impediment to the expiration and prevents the extinction of the rights of the consumer (claimant) recognized in the terms of Article 5 of Directive 1999/44/EC.
Decisão

In June 2011, the plaintiff (consumer) and the defendant (official workshop) entered into a work contract whereby the official workshop committed to replace the distribution system and the water pump of a van, in accordance with the recommendations of maintenance of the manufacturer. The contract concluded is between a legal entity (in exercising of an economic activity) and the applicant, owner of a vehicle intended for non-professional use, that is, in relation to consumer goods supplied in the framework of a work contract or of provision of services, contemplated in article 2.1Bis of Decree-Law nº67/2003 of April 8. This contract is also subjected to the legal regime of Consumer’s Law collected by the Consumer Protection Law (Law No. 24/96 of July 31), as amended by Decree-Law No. 67/2003, which transposes Directive 1999/44/EC. In this context, article 4.1 of Decree-Law No. 67/2003 is applicable.

The term for the exercising of rights is enshrined in paragraphs 2 and 3 of article 5 bis of Decree-Law No. 67/2003. However, under the terms of article 331 of the Civil Code, if the expiration period is established in the interest of who is obliged to satisfy the specific obligation, the recognition of that right made by him makes everything happen as if the act were practiced in due time. The recognition of the right must be unquestionable, evident, real and categorical, in such a way that it does not raise doubts about the attitude of the person who acknowledges it.

URL: http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/5c0302ea8993878a802580fa005cd13f?OpenDocument&Highlight=0,directiva,consumo

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Resultado

Final Judgement; not subject to appeal.

Jurisprudência

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