Joint and Several Liability in the Consumer Supply Chain: How It Works

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Joint and several liability in the consumer supply chain is a cornerstone of consumer protection in Brazil. The CDC (Brazil’s Consumer Protection Code) allows consumers to sue any supplier in the production chain for damages caused by defective products or services.

What the consumer supply chain and joint and several liability mean

The consumer supply chain includes every business involved in producing, distributing, and selling a product or service until it reaches the final consumer. The manufacturer, importer, distributor, carrier, and retailer are all part of this chain, and each one has responsibilities to the consumer.

The CDC adopts the theory of joint and several liability so that consumers are not left without recourse in the face of the complexity of modern production and distribution. Articles 12, 18, and 25 of the CDC provide that when more than one party is responsible for the wrong, all of them are jointly and severally liable for compensating the damages covered by consumer law.

In practice, this means the consumer can choose whom to claim against: the manufacturer, the importer, the distributor, or the retailer. The choice belongs to the consumer, who does not have to sue the entire chain and may go after only the supplier that is most convenient. The defendant who pays the compensation has a right of recourse against the other responsible parties.

Liability for product-related injury and for product defects

The CDC distinguishes two types of liability: liability for harm caused by a product or service (Articles 12 to 17) and liability for defects in the quality or quantity of a product or service (Articles 18 to 25). The distinction matters because who is liable, and the applicable deadlines, vary depending on the type.

Harm caused by a product or service occurs when a defect damages the consumer’s health, safety, or property, going beyond the product itself. In that situation, the manufacturer, producer, builder, and importer are jointly and severally liable (Article 12). The retailer is secondarily liable and can be sued when the manufacturer cannot be identified, when the product does not clearly identify its manufacturer, or when the retailer failed to store perishable goods properly (Article 13).

The CDC adopts the theory of joint and several liability so that consumers are not left without recourse in the face of the complexity of modern production and distribution.

A product defect of quality or quantity involves problems that make the product unfit for its intended use or reduce its value. In this situation, note that liability is joint and several among all suppliers, including the retailer (Article 18). When the product is defective, the consumer may demand a replacement, a proportional price reduction, or a refund of the amount paid from any of the suppliers.

Practical applications of joint and several liability

Joint and several liability applies in many everyday situations. When an appliance has a manufacturing defect and the manufacturer refuses to repair it within 30 days, the consumer can demand a replacement or refund directly from the store where the product was bought.

When medications cause side effects that were not disclosed, the manufacturer, the distributor, and the pharmacy are jointly and severally liable for the harm to the consumer’s health. Likewise, in accidents caused by vehicle defects, the automaker, the importer (for imported vehicles), and the dealership can be sued together.

Joint and several liability also applies to services. When a travel agency sells a vacation package and the airline cancels the flight, the consumer can sue both the agency and the airline. In phone and internet contracts, the carrier and its authorized resellers are jointly and severally liable for defects in the service.

Court decisions have been expanding the reach of joint and several liability to include digital platforms that mediate consumer transactions. Marketplaces and delivery apps, for example, have been held jointly and severally liable for problems with products sold or services provided by third parties on their platforms.

Defenses and the right of recourse

The CDC lists situations in which a supplier can avoid liability. Article 12, paragraph 3, provides that the manufacturer, builder, producer, or importer will not be held liable if they prove that they did not put the product on the market, that the defect does not exist, or that the fault lies exclusively with the consumer or a third party.

Unforeseeable events and force majeure can also remove liability, but courts apply this defense cautiously in consumer cases. So-called “internal” unforeseeable events (risks inherent to the supplier’s business) do not eliminate liability, according to the STJ (Brazil’s Superior Court of Justice). Only “external” unforeseeable events (those entirely unrelated to the supplier’s business) can serve as a defense.

When one supplier in the chain pays the consumer’s compensation, it gains a right of recourse against the other responsible parties, under Article 13, sole paragraph, of the CDC and Article 934 of the Civil Code. This recourse action follows the rules of the Civil Code and allows the compensation burden to be redistributed among the parties according to each one’s role in causing the harm.

In situations involving civil liability and claims for compensation, the joint and several liability established by the CDC is a powerful tool that makes it easier for consumers to obtain redress by allowing them to sue the most accessible supplier.

Frequently Asked Questions

Does the consumer have to go after the manufacturer before complaining to the store?

No. When a product has a defect of quality or quantity, Article 18 of the CDC makes all suppliers jointly and severally liable. The consumer can complain directly to the store where the product was bought, to the distributor, or to the manufacturer, in any order. The choice of whom to pursue belongs to the consumer, who may sue whichever supplier is most convenient.

How does the right of recourse among suppliers work?

When one supplier in the chain pays the consumer’s compensation, it can file a recourse action against the other responsible parties to recover all or part of the amount paid. How responsibility is divided among them depends on each party’s role in causing the harm. This action follows the rules of the Civil Code and is heard in the ordinary courts, without applying the CDC.

Are digital platforms such as marketplaces jointly and severally liable for products sold by third parties?

Court decisions have recognized the joint and several liability of marketplaces and intermediary platforms for products sold by third parties in their online environments. The prevailing view is that these platforms are part of the supply chain and profit financially from the transactions. Still, the issue remains debated, and some courts distinguish liability according to how much the platform participates in the transaction.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.