The dealership went bankrupt, did not deliver the car and now must repay the fabricante.ABOGADOS IN MAR DEL PLATA FAMILY for the judges was a subordination between the two companies, which implemented the Consumer Protection Act. What new situation arises in business relationships with such sentences. What the judges took into account to reach that decision.
In recent times, the implementation of the Consumer Protection Act has gained an increasingly prominent place in the courts.
When issuing a ruling, the judges "Shaking" to companies when they decide to use this standard, since that may mean the loss of significant amounts in fines and penalties.
In this scenario, among the companies most affected by such sentences are the manufacturers and distributors of various products, who "do not see the face" of the final consumer, but no less accountable to their claims.
In fact, a few days ago, the Consumer Protection Division ordered a car dealership and General Motors to compensate a client with an auto zero kilometer, for having delivered a vehicle with mechanical problems.
This was not all, the Court also upheld the sentence, which warned businessmen as it is an unpublished decision in this matter.
And now, a new fault is again a concern.
happens that this new ruling establishes joint liability of the members of the marketing chain, since one of them went into a state of insolvency or financial difficulties and was unable to meet its obligations to the purchaser. Experts consulted by
iProfesional.com
stressed the importance of these precedents and the leads that can bring that is the manufacturer who is liable for damage, for future claims. Buy unfinished
all started in March 2000, when the customer purchased a Volkswagen dealer a 12,500 kilometer zero Gol pesos.
For the purposes of agreeing the payment, en un primer momento, se le aceptó un plan canje por $4.840. Y, para saldar la diferencia, el comprador debía abonar $500 para luego cancelar otros 7.800 pesos.
Pero, una vez realizado el pago al contado y ante la falta de entrega del automóvil, intimó a la concesionaria. En respuesta, le fue informado que ya le habían asignado una unidad color rojo y que estaría a su disposición en quince días.
Entonces, ¿cuál fue el motivo de la demora en la entrega del vehículo? La razón se encontraba en cómo fue la operatoria: a través de la estructura de comercialización de los automóviles de la fábrica, Volkswagen Financiera -empresa distinta del fabricante- disponía a line of credit to official licensees of the brand, for payments of the units, parts and accessories.
The problem originated when the dealership failed to pay the notes he had signed.
the absence of a cancellation of those documents, financial proceeded to the kidnapping of car sold and others who were in local sales.
And this resulted in the competition for the concession and the lack of delivery of the car in question.
In this context, the buyer summoned the manufacturer, who denied responsibility when considering a person not party to that contract between the parties. The competition
creditors, the victim received $ 8,300, but reserved the right to sue for the amount missing. Therefore, the case finally resolved in court.
The court ruling upheld the action brought by the victim against Volkswagen and ordered the latter to pay the particular amount based on the loss of use, the time could have used the vehicle but did not-more interest and court costs. However, rejected the lawsuit brought against the lender.
Both the manufacturer and the customer have appealed to the House. The buyer felt that the amount of the sentence was inadequate, since it is not carried out or updated guidelines can obtain an automobile similar to the one purchased. He also requested that the amount calculated by the deprivation updated to the date of sentencing.
Finally, questioned had not been convicted of financial solidarity and asked that the costs were imposed to the manufacturer, if this action was rejected. Volkswagen
rejected the argument the trial judge and denied that the dealership was technically and economically subordinate to it. He also indicated that, being totally different companies, had no duty to control or monitor. The
another point in its complaint centered on the implementation of the Consumer Protection Act, and that this provision places the responsibility of all actors in the supply chain only in some cases but not in this.
The maid said that "under the trade structure created by the manufacturer, it can not exonerate ... connectedness because of the contractual obligation of the safety, appearance and confidence that the brand arouses the consumer. "
is, for judges, it was a liability, since the contracts must be interpreted in good faith, so that consumers might believe that directly hired with Volkswagen.
For this reason, ordered implementation of the Consumer Protection Act and highlighted three aspects:
advertising developed by the manufacturer involving the entire dealer network.
The use of the mark.
The show filmed in several local independent dealer and the subsequent kidnapping of twenty cars, including the road was purchased by the consumer, with absolute disregard and indifference for the buyer who had paid the full price of the vehicle.
"The manufacturer is bound to contract your local dealer and consumer end product by the mark. The brand operates as a guarantee of quality and safety," added the maids.
The judges also stressed two other points of the Consumer Protection Act. Article 3 stipulates that "in case of doubt, the interpretation will always be more favorable to the consumer."
And also relied on paragraph c) of Article 37-referred to the terms abusive and ineffective provisions, "which provides that" when there is doubt about the extent of its obligation to the user, which will be less burdensome " .
In this, the judges remarked that "the breach of contract happens when frustrated or decrease the justified expectations of the client. The greater the appearance of security brand, the greater the expectations it brings. "
Importantly, a specific effect of the termination of the contract is to return of sums paid by the purchaser in the event of default by the seller.
This return must put the customer in the same financial position at the time of the creation of the obligation, ie, you must return an amount that you can buy the same car he paid under the contract avoided.
Thus, the judges noted that the amount obtained by the buyer in bankruptcy did not cover this damage, so that the company shall pay the amount resulting from calculate the difference between the value of the vehicle in question and the amount actually received in the tender for the seller.
addition, the judges rejected the claim against the financial and ordered the manufacturer to take over all costs of prosecution. Impact
"The sentence is of undoubted interest, since it is one of the few that establishes joint liability of other members of the marketing chain when one enters a state of insolvency or financial difficulties and can not meet its obligations to the purchaser, "said Alejandro Chamatropulos consultant.
Meanwhile, university professor Andrea Mac Donald said that Law 24,240 provides that "if the consumer harm resulting from the defect or risk of the thing or of providing the service, answer the producer, manufacturer, importer, distributor, supplier, vendor and who has put his mark on the good or service. "
if one of the conditions of the norm, "it is appropriate to extend liability to a presumption because of solidarity that extends to those individuals within the market of goods and services, giving also the possibility to the consumer damaged sue them. "
The specialist said that the rules contained in article 40 indicates that "the liability is joint and several, subject to appropriate action. Only released in whole or in part, who show that the cause of damage has been employed."
"We reaffirm here the extension agents involved in the market for goods and services, who will have the burden of proving that the damage caused to the consumer has been no stranger to such damage," said Mac Donald.
Chamatropulos said that "in this case, it is not unreasonable to require the manufacturer to respond, since it should bear the risk of having devised a mechanism for the marketing of goods produced through a network of dealers." It
say, from the moment that decides to "outsource" the sale of cars instead of making it through their own channels, the logical consequence is to respond to the risks, the state insolvency of the concessionaire, the developed system.
"This is a similar solution, in essence, for solidarity which governs labor for outsourcing of activities. All this without prejudice to exercise after-action replay request a remembolso-to be created entitled "said Chamatropulos.
Another aspect to highlight is given by the importance given to the Volkswagen brand, and the legitimate expectations and confidence that it wakes up on consumers.
"That confidence extends to dealers, since they are served largely to profit from it. Therefore, it is reasonable that the factory meets its obligations for distributors," concluded Chamatropulos.
http://legales.iprofesional.com/notas/110306-La-concesionaria-quebr-no-le-entreg-el-auto-y-ahora-deber-resarcirlo-el-fabricante
