Burden of Proof: Understand in this exclusive article the obligation of companies to prove in processes involving consumers. The Consumer Protection Code, legislation responsible for regulating consumer relations, was created with the objective of fulfilling the constitutional mandate of Article 5, item XXXII, of the Federal Constitution, which assigns the State the duty to promote the defense and protection of consumers.
For this reason, the said norm is, in fact, a guarantee of support for the consumer, which is why every burden or obligation provided therein falls upon the supplier/service provider or the product.
In other words, in a consumer relationship, the duty to bear the burdens, losses, and obligations arising from it falls on the entrepreneur.
One of the consumerist institutions developed especially with the purpose of safeguarding the consumer and facilitating the protection of their rights is the so-called burden of proof reversal.
The civil procedural legislation, concerning the production of evidence aimed at fostering and proving the alleged facts in litigation, states in Article 373 of the Civil Procedure Code that the burden lies with the plaintiff to prove the facts constituting their right (item I); and with the defendant, the burden to prove the existence of a fact impeding, modifying, or extinguishing the plaintiff's right (item II).
In this context, the ordinary procedure distributes the burden of proof equally, assigning to the one who alleges the burden of proving the facts that support their right.
However, in consumer relationships, through the burden of proof reversal institution, the consumer has the right to file a lawsuit against the supplier without providing proof of the alleged facts, shifting the burden onto the product or service provider to prove that they did not violate the consumer's rights.
This is a true exception to the ordinary distribution of the burden of proof.
Practically speaking, procedurally, it remains the duty of the supplier to provide evidence to the contrary of the facts alleged by the consumer.
At first glance, it may seem that the defense of the entrepreneur or retailer against the consumer is lost or compromised. However, the use of the appropriate strategy turns the burden of proof reversal into an advantageous tool for the supplier.
Since the consumer only needs to speak and the mere likelihood of the alleged facts, the lack of a legal obligation to prove the situation he brings to court leaves the consumer procedurally vulnerable.
On the other hand, the obligation to produce evidence contrary to what the consumer alleges gives the entrepreneur the power to truly influence the judge's free conviction.
The evidence to be considered is only that produced by the supplier, meaning that most of the time, there is no counter-evidence.
Therefore, it is extremely important for the entrepreneur, retailer, and supplier to safeguard themselves, in documented form, at all stages of the consumer relationship they participate in, including customer service and events that occur within their premises, even if they are not at fault.
Just as the company is responsible for recording income and expenses, complying with labor and sanitary regulations, it should also record and document customer payments and receipts, goods deliveries, response to requests, screen captures, conversations in messaging apps, sent and received audio/photos, and make good use of security cameras, preserving images of extraordinary events or situations that deviate from everyday life and could return in the form of a judicial notification.
Organization and prevention are essential. Registering, documenting, and, most importantly, preserving the evidence produced, while maintaining due confidentiality, are measures that should be internalized in the routine of companies.
Therefore, an internal routine that always seeks to protect the company at all stages of the consumer relationship, followed by the registration and archiving of documents, incidents, and events, as well as due prudence and care in customer service and service, ensures a vast production of evidence in favor of the company, which cannot be contradicted by the mere word of the consumer in the opposite direction, guaranteeing success in the procedural relationship and safeguarding the integrity of the consumer relationship.
ARTICLE: Ana Clara Sá Law graduate from the Federal University of Acre. Specialist in Civil Law and Civil Procedure from UNIFTEC University.
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