Bigger text (+) | Smaller text (-)

» Proposals

PROPOSAL OF BRASIL

CIDIP CONVENTION ON CONSUMER PROTECTION

I. GENERAL PROVISIONS 

SCOPE OF APPLICATION 

Art. 1. Definition of Consumer 

1. Consumer, for the purposes of this Convention, is any natural person who, with a business or professional, in transactions, contracts and situations governed by this Convention acts for a purpose which can be regarded as outside the scope of his professional activity. 

2. Regarded as consumer are also third parties, such as family members of the main consumer or other accompanying persons, who directly enjoy the services and products contracted for, in contracts governed by this Convention, as final consignee of such contracts. 

3. In the case of travel and multi-property contracts, the following are regarded as consumers: 

a. the main contracting party or the natural person who buys or agrees to buy the holiday package, the trip or the time share for this own use; 

b. the beneficiaries or third parties on behalf of whom the main contracting party buys or agrees to buy the trip or the holiday package and those who enjoy the trip or the multi-property for a length of time, even though they are not the main contracting party; 

c. the assignee or the natural person to whom the main contracting party or the beneficiary assigns the trip or the holiday package or the rights of use; 

4. If the law applicable by virtue of this Convention defines in a wider or more favorable manner who is to be regarded as a consumer or treats other agents as consumers, the judge entitled to adjudicate the matter may take into consideration the expanded scope of application of this Convention, if it is more favorable to the consumer’s interests. 

Art. 2. General contractual protection 

1. Contracts and transactions involving consumers, especially those contracts concluded at a distance by Internet, telephone or other methods of telecommunications, when the consumer is in his country of domicile, shall be governed by the law of this country or by the law most favorable to the consumer. The parties can choose the law, provided that the chosen law is that of the place of conclusion of the contract, the place of the contract performance, the place of the characteristic performance, or the domicile or place of business of the supplier of the products and services and that this law is the one most favorable to the consumer. 

2. To the contracts concluded by the consumer when outside of his country of domicile the law chosen by the parties shall apply, provided the chosen law is that of the place of conclusion of the contract, the place of performance, or the consumer’s domicile. 

Art. 3. Mandatory rules 

1. Notwithstanding the preceding articles, the mandatory rules of the country of forum shall necessarily apply for the protection of the consumer. 

2. If the conclusion of the contract was preceded by any negotiations or marketing by the supplier or its representatives, especially shipment of advertising material, mail, e-mail messages, prizes, invitations, maintenance of branch offices or representatives, and other activities focused on the supply of products and services and the creation of a captive customer base in the country of the consumer’s domicile, this country’s mandatory rules shall necessarily apply for the protection of the consumer, in addition to those of the country exercising jurisdiction and to the law applicable to the contract or to the consumption relation. 

Art. 4. Loophole clause 

1. The law indicated as applicable by virtue of this Convention might not be applicable in certain cases, if, considering all the circumstances relevant to the case, the connection with the law indicated as applicable is insufficient and the case itself is closely related to another law, more favorable to the consumer. 

Art. 5. Excluded issues 

1. This Convention is not concerned with: 

a. Transport contracts governed by International Conventions; 

b. Insurance contracts; 

c. Contractual obligations expressly excluded from the sphere of application of the CIDIP V on international contracts; 

d. Contracts for international transactions, conducted between traders and businessmen; 

e. All other contracts and consumption relations, as well as the obligations arising from them, involving consumers governed by specific conventions. 

II. PROTECTION IN SPECIFIC SITUATIONS 

Art. 6. Travel and tourism contracts

1. Individual travel contracts concluded in package or with combined services, such as a tourist group or together with other hotel and/or tourist services, shall be governed by the law of the consumer’s place of domicile, if it is also the place of business or branch of the travel agency which sold the travel contract, or where the offer was made, or advertising or any prior negotiations by the dealer, carrier, agency or its autonym representative occurred.

2. In all other cases, to individual travel contracts concluded in package or combined such as a tourist group or together with other hotel and/or tourist services, the law of the place where the consumer declares his acceptance of the contract shall apply.

3. To travel contracts, not governed by international conventions, concluded through standard contracts or standard terms, the law of the place where the consumer declares his acceptance of the contract shall apply.

Art. 7. Time-share or multi-property contracts 

1. The consumer protection mandatory rules of the country of physical location of the leisure and hotel facilities, which rent, lease or sell the right of use in multi-property or time share property, located in the States parties to this Convention, apply cumulatively to these contracts in favor of the consumers.

2. The rules of the country where the offer is made, where advertising or any marketing activity, such as telephone calls, invitations for receptions, meetings, parties, shipment of prizes, raffles, all-paid trips or incentive programs, among other business activities, are conducted by representatives or owners, organizers and managers of the time-share or multi-property, or where pre-contracts or contracts for the multi-property or for the right of use/enjoyment of property are signed, shall be interpreted in favor of the consumer, regarding information, the right to change one’s mind and deadlines, as well as the causes of termination of the contract or pre-contract, and thus determine the exact content of the concluded contract and the possibility of payment or of signing credit card receipts during this period.