Obligation to comply with offers in e-commerce is not absolute

The Superior Court of Justice (STJ) has ruled that the obligation to comply with offers in e-commerce, provided for in the Consumer Protection Code, is not absolute. The 4th Class of the STJ has established that suppliers can exempt themselves from fulfilling an offer if there is justified reason, such as gross price errors or fraud indications, making the application of article 30 of the CDC more flexible.

Context of Decision

The STJ's decision arose from an appeal from a large retail chain, which had been condemned by the Public Ministry of Sao Paulo (MP-SP) for failing to comply with offers announced on its website. The practices pointed out by the MP-SP included the increase in prices in the virtual cart and the cancellation of orders under allegations of lack of stock or registration problems.

The lower instances had determined that the store would comply with all offers and keep the advertised stock, with a fine of R$ 100 thousand for each irregular offer. The company, in its defense in the STJ, argued that the order was generic and disregarded legitimate exceptions, such as systemic price errors (products advertised at derisory values) and fraud in purchases.

Flexibilization of the Obligation

Minister Isabel Gallotti, rapporteur of the appeal in the STJ, welcomed the arguments of the retailer. She stressed that although article 30 of the CDC establishes the obligation of offers, the court jurisprudence admits flexibility in specific situations.As an example, she cited a previous judgment where the obligation to link supply was removed due to a gross systemic error in charging prices.

The rapporteur has determined that the obligations to comply with offers do not apply to any breaches for justified reasons, to be analyzed on a case-by-case basis, based on objective good faith.In addition, it reduced the amount of the fine to R$ 10 thousand for each irregular offer.

The decision points out that the company remains obliged to maintain the promotional price and inventory until the closing of the electronic purchase, and cannot change prices in the cart or cancel improved purchases without duly justified reason and clearly communicated to the consumer.

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• Duty to comply with offer in e-commerce is not absolute, defines STJ (Legal Consultant.