Risco do desenvolvimento como excludente de responsabilidade do fornecedor

Abstract

In the scope of tort law, the protection of consumer rights is one significantly relevant matter, which has undergone changes over the last decades, especially in view of the need to harmonize the interests of the parties to consumer relationships and the technological and scientific development, both essential to the maintenance of the economic order. The development of means of production have altered the relationship between supplier and consumer in a considerable manner, not only completely diverging the consumer from the productive process (leaving the consumers entirely dependent on the information provided by the supplier on the risks offered by commercialized products and services), but also giving rise to the reckless introduction of products and services into the market, frequently without any certainty concerning the respective safety. In light of such scenario, this study presents an analysis of the effects of the reckless development of the consumer market and the consequences of such growth to the liability of the supplier concerning the development risk defense. We shall address the solutions presented in statutes and precedents, in Europe and the United States, the principles which grounded the elaboration of the rules protecting the consumers (human dignity principle, strict liability principle, precautionary principle and prevention principle, acknowledgement of vulnerability of consumer, etc.), and the requirements for the liability of the supplier, in order to understand whether, in Brazil, in spite of the omission of the Consumer Code, the development risk defense can be deemed as a hypothesis to exclude such liability. The study of the subject is highly relevant, once, in spite of being an academic analysis, it can have a great practical impact, once the omission of the Consumer Code imposes the study and the proposal of legally grounded solutions to address cases which shall certainly be analyzed by the national courts in the following years