Precontractual Responsability in the New Brazilian Consumer Protection Code: Comparative Study of the Precontractual Responsability in the Ordinary Brazilian Private Law

Abstract

The article starts with the remark that, due to the delay in updating the Brazilian Civil Code, was the new Consumer Protection Code (CDC - Código de Defesa do Consumidor) that favored the modernization of the whole Brazilian private law system; this modernization took place thanks to the successful adoption into legislation of the standard of the objective good faith (the "general clause of good faith" of European Contract Law). Concerning the precontractual responsability, similarly to the Brazilian Civil Code, the CDC did not include a specific chapter. In the preliminary negotiations phase, the issue of abusive disruption and some of the so-called prior obligations were not contemplated. On the other hand, both the obligation to inform the consumer through advertising and the obligation of protection health, safety and economic interests of the consumer have received clear precepts under the standpoint of the objective good faith. Finally, in the offer phase, the information and the "sufficiently precise" advertising were considered as contract proposal; therefore, these acts oblige the agent conclusively.