judges resort to this rule to condemn banks, financial and prepaid. This time, enacted a highway concession company.
The implementation of the Consumer Protection Act (LDC) is expanded to almost all trade relations. This time, Justice took advantage of this law to convict a highway concessionaire for damages suffered due to a motorist in a road accident.
DC is a standard that protects consumers and users for injuries they suffer in terms of consumption. Its use is increasingly common, and judges and are in place to punish banks, financial and prepaid services.
Within this context, experts indicate that the use of this standard is growing in part because of the recent legislative amendment.
happens that last April, Congress approved a reform the LDC which, among other things, established the possibility that users could claim in court for a new category of prejudice, to consecrate the compensation for "punitive damages" to a ceiling of $ 5 million. (Note )
is why lawyers emphasize that the reform will boost the consumer complaints, and that this law is increasingly applied by the courts to convict companies of different industries and for the most varied causes.
case
This time, judges took the basis of this law to convict a concession company vial for damages suffered by a motorist, who suffered an accident at the time of travel concession route.
The court adopted this decision in the case "Parisotti Crisanto c / Camino del Atlántico SA s / Damages" (complete failure see provided by elDial.com ).
The judges noted that "the link established between the concessionaire and operator of a toll road is a contractual relationship, which gives rise to an obligation security objective result by the first, so that refers the user with the dealer at a typical consumer relationship. " Therefore, the judges stated that the responsibility of the company had contractual origin and becomes operational by the provisions of the LDC.
"The basis of liability rests on security duty , has been receptive to normatively in the Competition Act, under which items or services must be provided in a manner which, when used in normal or foreseeable conditions of use , not present a hazard to the health or safety of consumers or users "he said.
That is, for the court, the company's responsibility does not rest on subjective as a ground fault, negligence or willful misconduct, but a factor goal, as the duty safety and security of property of the user that the concessionaire must be guaranteed.
addition, the judges stated the effects that the LDC to establish that the Constitution adopts the term "consumer relationship" to avoid limited to contractual and refer to "a broader view" all the circumstances surrounding or relate to satisfaction and demand for goods and services.
security Duty
Ropolo Esteban, a partner at Baker & McKenzie, stressed that the judges sentenced the highway concessionaire for the violation of security duty enshrined in the LDC. "This duty security head who sells goods or services is increasingly applied by the courts to condemn to companies across many categories and for widely varying reasons," he said.
The lawyer recalled a recent ruling where, applying the same rules, was sentenced to a bank to compensate a customer for theft suffered through an ATM.
"The verdict was based on the bank's obligation ensure a safe environment customer for it to do your banking, said.
He added: "The duty of security and strict liability (without fault), have been extended to all consumer relations" .
To avoid consumer demands of this style, specialist pointed out that companies must prove that have taken all necessary measures within its power to ensure that consumers "safe and peaceful use" of those goods and services market.
daily
Application For Ignacio Mazzocco, Professor and Director of Professional Education at the University Torcuato Di Tella, the regime de Defensa del Consumidor está siendo aplicado asiduamente por los tribunales a la gran mayoría de relaciones comerciales habituales y cotidianas , y este hecho genera un sinnúmero de contingencias que deben ser analizadas dentro de cada industria.
Al comentar el caso en particular, el abogado dijo que la cámara aplicó en la causa las previsiones de la ley 24.240 en forma directa, y siguiendo el criterio sentado por la Corte Suprema en el caso “Ferreyra”.
Mazzocco manifestó que, en este último caso, la Corte sostuvo que la relación que se establece entre el concesionario y el usuario de una ruta de peaje es una relación contractual de consumo que tiene recepción regulations in the LDC.
More items, more claims
Last July, the trade justice sentenced a bank for the illegal extraction of funds by third parties, by making a debit card "twin" to the affected client .
The court validated the application of the Competition Act to clarify that this rule should be applied existing relationships between banks and users to protect the weaker party in the relationship. (See note " bank fraud: he was misled and now require an entity to compensate ).
Similarly, the Court also extended the application of LDC to the relationships between members and prepaid medicine companies. So, last July, a court fined a prepaid for refusing to cover treatment. (See note "prepaid fined for refusing to cover operation " ). Judges analyzed
the contract between the patient with the prepaid "is characterized as one of adhesion, consumption and long life. Who has the entrepreneur, who concentrated to himself the power of negotiation."
"The contracts between a private health insurance plans with their clients are contracts of adhesion con cláusulas predispuestas , por lo que el poder de negociación de las partes es diferente, pudiendo presentar desequilibrios en la relación contractual que ocasionen perjuicios a la parte más débil -adherente-", concluyeron.
Fuente: InfoBaeProfesional.com
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