A tutela dos direitos do consumidor, como expressão da dignidade da pessoa, em face da vulnerabilidade causada pela Covid-19

Abstract

The Consumer Protection Code, product of a long global historical evolutionary process, has enshrined fundamental rights safeguarding the dignity of the person within the national legal system, by virtue of an express constitutional provision. To this end, contractual principles aimed at respecting the basic needs of the person and enabling their healthy development were emphasized, in observance of the constitutionalization of civil law. Consumer legislation constitutes a microsystem that is not hierarchically subject to other legal statutes; however, it maintains a connection and interpenetration in a permanent dialogue to ensure the prevalence of the social function of the law. There is a conflict between the principle of the binding force of the contract (pacta sunt servanda) and the theory of excessive onerousness (hardship; rebus sic stantibus), which gives rise to the imperativeness of contractual revision. However, the Consumer Protection Code is in need of legislative refinement regarding the enactment of capable norms that provide effective instruments fostering autonomy and standing, rendering the consumer immune to infringement, even when facing crisis situations caused by unforeseeable and extraordinary factors. Furthermore, there is a need to create a specific emergency fund, subsidized by the productive sector, to mitigate the deleterious effects of such events. Legislation enacted during the pandemic, although formally constitutional, failed to observe consumerist and constitutional principles by prioritizing the productive sector to the detriment of the consumer, proving to be substantively contrary to the norms of the Consumer Protection Code. Nevertheless, court jurisprudence safeguarded the fundamental rights of the consumer. There is a need to reaffirm the principles of the Consumer Protection Code through the enactment of legislation protecting the fundamental rights of the consumer.