The Superintendency of Industry and Commerce responded to a lawsuit filed against a gym that, in March 2020, suspended all user plans and, upon reopening, the plaintiff expressed his intention not to continue with the plan he had acquired at the time. However, he was told he could not do so because the plan had been automatically renewed, according to the clauses of the signed contract.
According to the provisions of Article 10 of the Consumer Statute (Law 1480/11), to hold the provider or producer liable, it would suffice to demonstrate the defect of the product, beyond the grounds for exoneration of liability established in Article 16.
With regard to the provision of services, in the event of breach, the consumer may choose between the provision of the service in accordance with the conditions under which it was contracted or the refund of the price paid.
Therefore, the entity establishes that, for the money to be refunded, it is essential to demonstrate that the defendant party actually breached the provision of the service contracted by the plaintiff.
Alleged breach
In the present case, the plaintiff alleged that he wanted to cancel the contracted service due to a personal matter relating to unemployment and lack of financial resources, a situation that is not considered as an alleged breach by the defendant regarding the provision of the service that is the subject of the lawsuit, nor was any evidence to the contrary provided.
Thus, since the breach by the defendant in the provision of the contracted service was not demonstrated in the proceedings, the claims of the plaintiff party, aimed at obliging the defendant to allow the plaintiff to withdraw without any penalty, would have to be denied, as this would disregard the provisions of the Consumer Statute and, therefore, would impose excessive burdens on the defendant.
Superintendency of Industry and Commerce, Judgment, 11190, 14/10/2021.