The head of Court No. 10 in Contentious-Administrative, Tax and Consumer Relations, Aurelio Luis Ammirato, partially gave rise to an ordinary legal action and sentenced a marketer dedicated to the sale of motorcycles and their parts, pieces and accessories to be replaced three faulty Michelin brand tiress . All this within the framework of the case “BGA against BFA on consumer relations”, File 112427/2021-0.
The complainant alleged that a few days after making his purchase he received the products, and although they were the ones he had wanted to buy, he was greatly surprised when he discovered that the covers received were not in ideal conditions for use, since They were not in an optimal state of conservation and had been made eight years ago.
In this regard, he stated that manufacturers establish that a set of tires must be used with caution after five years, considering a maximum useful life of ten years. Based on these recommendations, he received a product that he could not safely use for more than a couple of years at best. The tire warranty, inclusive, ceases to be valid after ten years from the manufacture of the product.
He received covers 8 years old: Justice ruled in his favor.
The magistrate considered the arguments made by the plaintiff in the lawsuit and based on the terms in which the litigation was settled, it is not in dispute that in the case we are faced with a consumer relationship between the plaintiff (consumer), in his condition as a buyer of three tires, and the defendant, whose main activity is the sale of motorcycles and their parts, pieces and accessories and maintained that: “The legal analysis to be carried out in view of the composition of the conflict will have to be based on the regulation that protects the rights of users and consumers, given the nature of public order of this legislation (cf. art. 65, LDC)”.
And he added that “according to art. 42, CN, ‘Consumers and users of goods and services have the right, in the consumer relationship, to the protection of their health, safety and economic interests; to adequate and truthful information; to freedom of choice, and conditions of equitable and dignified treatment…'”.
The judge stressed that “the local Constitution also ‘guarantees the consumer defense and users of goods and services, in their consumption relationship, against the distortion of markets and the control of monopolies that affect them’ and protects, among other things, the assets of consumers and users ‘assuring them fair treatment, freedom of choice and access to transparent, adequate, truthful and timely information…’ (art.ç 46, CCBA)”.
Regarding the information that must be provided to consumers, the magistrate recalled that: “According to article 4, LDC ‘the supplier is obliged to supply the consumer in a true, clear and detailed manner everything related to the essential characteristics of the goods and services it provides, and the conditions of its commercialization. The information must always be free for the consumer and provided on a physical medium, with the clarity necessary to allow it to be understood. Communication on physical support may only be supplanted if the consumer or user expressly opts to use any other alternative means of communication that the provider makes available.
In the specific case in which it can be seen that both the plaintiff and the defendant are indeed users of the platform Free market (Annex A); that on March 18, 2020, he acquired the products subject to this litigation, for the total price of $4,482, paying with a Visa card (Annex B); and that the tires were delivered to the address by the Urbano company, with free shipping (Annex C).
Ammiratus observed that “the Mercadolibre report confirms the details of the seller, the offer and the purchase transaction; while the one provided by Michelin shows that the tires, still stored and unused, suffer degradation, at 5 years old they must be controlled the ten already expire“.
Regarding the punitive damage, the judge considered “according to the analysis carried out and making merit of the records of the case, in the opinion of this court the reprehensible conduct accredited in the record does not meet the requirements of origin that condition and justify the application of the punitive damage that the plaintiff claims.”
concluded that: “In order to reach this conclusion, it is necessary to consider, among other evaluative parameters, the following: although the presence of damage to the consumer is confirmed -which to the extent this pronouncement orders compensation- the supplier does not notice serious disregard for the rights of the former or have specifically sought to obtain an undue profit”.
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