Chamber I of the Court of Appeals in Civil and Commercial overturned a lower court decision and did rise to a claim for punitive damages against the company Telecom Personal SA, which in this way must pay 20,000 pesos not terminate a service.
For The February 6, 2009, the applicant filed with the company Telecom Personal SA a note requesting cancel the service lines of ownership, noting that it was a "termination expressed."
But the company did not respond to it, in violation of article 10 ter of Law 24240 which provides in its second paragraph that "the company receiving the request for withdrawal must be sent without charge to the consumer or user address proof authenticated within 72 hours of receipt of the order of withdrawal ...".
The Chamber, composed of the Chamber judges Kauffman and Liliana Graciela Susana Teresa Loutayf Ranea, said in its ruling that there was "a gross negligence of the defendant, off the presentations by the user, which is what the law seeks to prevent, with attitudes delaying the deposit of the contract remain "captive" users, putting obstacles to the termination of the contract which had already operated by express plaintiff's decision on February 6, 2009. "
argued further that to fix the penalty provided in the standard central point to consider is "the blameworthiness of the conduct of a party, his intent or the degree to which reflected his indifference to users. " Punitive sanction was established in this framework, "compared to repeated failures despite the time elapsed since the filing of the first note to terminate the service, and to transfer lines to the date hereof. "
FAILURE
Salta, April 13, 2011
and Vista: These cars images: "Paganetti, Daniel Hc / Telecom Personal SA
s / summary" - Expte.N ° 272.295/09 the Court First Instance in Civil and Commercial
4 ° Nomination-Expte. of Chamber No. 337.746/11 and
CAM ___________________________CONSIDERANDO
_____ __________________ Dr. Susan Kauffman Martinelli said
_____ I) That the sentence against fs.121/123 row. the actor calls
fs.125, resource that is granted in connection with fs.126 suspensive effect. _____ A fs.128
express grievances holding dismissing the punitive damage
requested in the request as unfounded when
budgets required by art.52 bis of 24,240 to its origin
cars are fully accredited. States that the judge said, after a general introduction
on punitive damages, that "for the purposes of
origin corresponds to consider the benefit to the poacher"
requirement that is not rational derivation of the rule, but mere voluntarism
and arbitrariness. Is that the art.52 bis not required for the origin of the civil penalty
what the judge understood as the national doctrine, mostly
Institute believes that this punishes the behavior of suppliers
particularly reprehensible made with malice or gross negligence .
accent adds that this rule is on the defendant's conduct, not the poacher
profits made so that the Court can not legislate further disposing a
requirement that is not the norm. Secondly, partial parsing
wrongs done by the trial judge-a fs.123 paragraph 2 ° -
beginning with the administrative proceedings initiated before the Ministry of Consumer Protection
and omitting, without reason, considering the origin and
time of the conflict of interest between the parties, that is what happened on 6 February 2009
detailed in the application. Consider the appellant that there is
produced significant facts relevant to this litigation because the date referred
starts the extensive failure of the company to give low
some lines and transfer other people who had them and used
until then, adds that the system remains the
company holds all the phones lines because the company never acted on their
requests, which recognizes fs.98 row. to say that did not meet the low
and transfers for debt was to be determined. Notes
condition that the conduct of the giving way to low and
transfers to payment of a debt is determined under the art.37
inc.b) as abusive behavior, and considered no "unwritten "
if contractually provided. States that the practice arises from the evidence given at the trial
by showing the uncooperative stance of the company until the date
. Here, he says, lies the seriousness of the act which provides the standard, the company
reprehensible and contrary to law. States that it is a political
marketing services, which is bad policy "
gravity that should be assessed by the court to impose civil fines. Judge to
considered that despite the firm had to meet without any formalities
start to "claims filed in their offices by
users" did not impose punishment, which involves a serious contradiction of
foundations of the ruling. Reiterates that the February 6, 2009 made the claim and the company failed
. Thirdly fs.122 wrongs that row.
§ 4 the judge based the admission of the claim, saying that "it
accommodate demand in the terms specified in the agreement
fs.28 thus leaving unresolved the relationship contracts that the linking "which is different from what
hereby fs.28 demand because there was no agreement but the constancy of
a settlement in which no agreement was reached at the administrative
quite the contrary, away the sentencing of the solution
law provides no legal basis. Argues that the contract termination
was 6 February 2009, and not as the judge set the end of the paragraph cited, as at that date
signed transfer forms
lines the company has never, to date, gave way. Moreover, he concludes that the demand
not requested at the contract termination that the court lacks authority to order it
. He adds that, in signing the forms provided by the company
, pending completion by you and other users
same day, there was the termination of the contract, a fact that was not appreciated by the trial judge
. Considered incorrect assessment that
company showed a cooperative attitude and good faith as expressed
earlier, adding that the hearing was held on May 7, 2009,
having spent three months without being driven to give effect to the transfers
and, to date, remains unfulfilled intention. For
latter refers to paragraph 3 ° in fine fs.123 as
believes that the punitive damages claim is excessive, considering gross error, since the
date is the direct creditor of the breach is not possible
prize for it, being tested all the requirements of the institute. _ _____
been served appears the attorney for the defendant to fs.135. Draws
highlight, first, that the plaintiff forced the failure of the administrative
instance by claiming that the procedure was done in 24 hours. and not in 72 hours.
as proposed by his party, preferring to resort to judicial process
two years instead of waiting two days, which shows the biased attitude of the plaintiff to seek
profit. Also said that in court is
conciliatory proposed two instances were declined by the actor.
grievances response indicates that the plaintiff claims that the conduct is malicious Telecom
to deny the transfer of the lines
record debts, without regard to their own behavior, debt keeps
correct date for the service provided by his party, while recognizing
other avenues for recovery, evidence of the plaintiff's conduct and discard the bad faith of his principal
. Affirms that the origin of punitive damages is necessary
the fraud or negligence or abuse of power that evidences a serious disregard
individual rights that file does not
configured. That car was not exercised an abuse of the defendant
or attempted to defraud the plaintiff having complied with not being
agreed and the case of the plaintiff who did not pay the service. The first actor
grievance contends that although the requirement is not essential
benefit to the source if it is for the amount thereof to watch
denotes the real intentions of the borrower. He says if there was no benefit to her because
simply required only the payment of the service, which
no time was cut and which to date continues to use without paying the due
. On the second offense Appellant states that the test evaluated partially
. Explain that in practice people
used to transfer before the request both lines and continued to use later, or
is that in the service there was no difference. He adds that the actor refused to transfer
for only two days apart which is the behavior that evaluates
Judge the rejection of punitive damages. On the third offense
says it is not mandatory for the judge agree with the fundamentals of
plaintiff should make room for the petitioning. Referring to the fourth
tort plaintiff explained that seeks to highlight that the company failed to
its obligations making subjective conclusions that do more than reaffirm their abusive behavior
so the punitive fine can not succeed.
_____ A Car fs.145 called for Judgement, ruling that
firm is spoiled.
______________________________________________ _____ II) The Consumer Protection Act was enacted in 1993 and
after this, the constitutional reform of 1994 incorporated the art.42
which states that: "Consumers and users of goods and services have
entitled in terms of consumption, health protection, safety and economic interests
; to adequate and truthful information, to freedom of choice
and conditions of fair and decent "
thereby giving constitutional status to the top of the user or consumer Protectoria
(LL1999-B-271 et seq.) ____________________________________________ _____
car Where the plaintiff expressly petitioned in demand
order the defendant to "comply effectively with the
obligation to transfer ownership of two mobile phone lines (which identifies
) to its current users ... "and second request applies
art.52 bis of the Consumer Protection" for gross violations of various provisions in the law
Consumer Argentino affect its
person ....".
____________________________________________________ _____ The Board has stated: "The consumer has received legal shelter and
constitutional because the contractor is considered weak. This characterization,
certainly has come to impinge on the extent of the duty to inform
imposed by good faith, because on one side is a professional and a layman
another whom the law protects. This inequality is real
the special law seeks to solve through typical figures
Consumer Law (Decisions fs.549/551 Chamber I in 2009, 2011 fs.118/119). _____ ________
this Court also expressed with reference contracts: "The
Consumer Protection Act in its art.37 states-in terms of their interpretation
, which agreed not to be taken:
clauses that can denature the obligations or limit liability for damage ; the
clauses waiving or restricting import of consumer rights
or expand the rights of the other party, the terms containing any provision that imposes
reversal of the burden of proof to the detriment of consumer
, adding that contract interpretation
be done in the manner most favorable to the consumer and if there is doubt about the extent of its obligation
which will be less burdensome (Bug Hall I
2005, fs. 1065/1069; 2006 fs.294/301; 2009 fs.549/551). ______________ _____
As emerges from the records of the proceedings the actor
on 6 February 2009, submitted in writing to the company's Telecom Personal SA
a note requesting the supply service lines of ownership,
for the record, incidentally, that it was "expressly terminated."
also reported in this note that any amount owed (fs.6
record). Also attached as Exhibit Form Change of Ownership
provided by the company in which all
slogan data and of those ceded ownership signature to the actor and
assignees, form that was submitted on the same day
6 February 2009 (fs.7 record). _________________________________________ _____
Following this, on February 25, 2009, Dr. Paganetti
presents a new note to the defendant making
clarification regarding the seven mobile lines: transcribes two phone numbers
(xxxxxxxxxx) were discharged on February 6, clarifying that it was
a day before to restart a new billing cycle, then mentioned the No. xxxxxx
he was transferred to his sister Analía Amorina
Paganetti and the No. xxxxxxx transferred that same day on February 6 Enrique José Prina,
formalities were not done, he says, to date
to watch a bill that was not yet due. In the same letter explicitly challenged
bill that expired on 01/30/2009 asking is extended
a report of calls made from the line in the last two months for the phone
No. xxxxxxx. In point 5 of your letter challenging the billing of your personal phone
(No. xxxxxxx) because his approach with
condecía not actually consumed and not used that phone, with minimum
outgoing calls (allegedly) calling is expressly extended
a report of calls made from that line.
It should be noted that in this letter, filed on February 25, reiterates
requested in the note dated 6 of the same month low as the service, transfers and orders
reports adding that the company could not of
according to the law, determine the procedure for payment of any balance because it is
abusive conduct, to meet under the contract, according
with art.37 of the law should be considered invalid. Finally became
bump in the notice intimated to the company's term than 48 hours. of
received the note stating that it satisfied all the efforts made on 6 February
on pain of filing a complaint with the Department of Consumer Protection
. _________________________________________ _____
Nevertheless no information was provided by the company, despite
reporting obligations expressly provided for in Article 4 of Law 24,240
thereby violating the defendant of their legal obligations.
also violated s. 10 Ter, in its second paragraph, states: "The
company receiving the request for withdrawal must be sent home without charge to the consumer or user
proof authenticated within 72 hours of receipt
order of withdrawal ...". In short, did not rescind the contract
or reported the reasons for it and there is no record that
been informed of the amounts owed or the
list of outgoing calls, as the petition by the consumer. _______ _____
Thus, on April 16, compared to non-compliance of the defendant in the case
presents his complaint to the Secretary of Defense Consumer
being fixed for hearing on May 7, 2009.
In that hearing, despite the time elapsed since the termination given in writing
expressed on 6 February,
note reiterating the request and submitted twenty days after the complaint to the Secretariat, the defendant insists on its position
default request within 72 hours to resolve the issue
, which had generated three months earlier As opposed
asking the actor is resolved within 24 hours
attentive to the inaction of the company from previous claims. _________________ _____
this regard I disagree with the judge in extent as
understands that the company's attitude was cooperative and that the records of the proceedings, comes
failed to comply with existing rules and forced the user to perform a myriad
procedures and proceedings, including judicial,
for the transfer of services. The attitude of the defendant, should be to
immediate compliance with the request of the consumer in the month of February 2009
not ask for 72 hours at the settlement hearing
"because the system requires that period "when he had passed a
within three months. Now, if the defendant did not meet its obligations because there was
any outstanding debts due the state in the settlement hearing
or should have happened for collection by the way and route relevant
, thus avoiding the fine prescribed in art.52 bis conduct its
remiss in fulfilling their legal obligations and contractual
.
__________________________________________________ _____ In accordance with art.52 bis of Law 24 240 (replaced by section 24 of the Act
26,361) the law gives the user three possible ways of
defend their rights were allegedly violated: a )
claim against the company providing the service to review their actions and
take all necessary measures to amend the wrongful act or repair the damage caused to the user
(arts.27, 30 31 and cc. Law 24 240) b )
claim to the authority of law enforcement through the procedure established pursuant
to the standards by the art.45 of Law 24,240 and c) the judicial
(art.52 law 24,240). _____________________________________ _____
argue about RJ Saenz and Luis Rodrigo Silva (Law of Consumer Protection
Annotated Annotated and-Picasso-Vázquez Directors
pág.584 Ferreyra-TI-Ed-Law) that the possibility of recourse to the
administrative act on a claim or complaint is not prevented from going to
prior, simultaneously or subsequently to the courts, which
is in line with the principle of access to justice, without any impediment
.
__________________________________________________ _____ So, the fact that the actor has gone to court
track after making various claims and conciliatory
failed instance can not have the scope intended by the defendant to answer
grievances, which would be to get a profit, since as arises
of records of the proceedings were unsuccessful as the steps taken
court, claiming the plaintiff that the failure of the defendant
went so far to the presentation of grievances. At any time
Telecom Personal SA state that it had complied with the request of the user
and proof of this is that the court condemns the
performance, although referring to the Convention, which did not exist
what is another of the grievances of the appellant. The defendant, to free
the implementation of the fine, at least should have demonstrated their compliance
at the time of the settlement hearing.
_____________________________ _____ The art.52 bis states: "The provider that meets your
no legal or contractual obligations to the consumer, at the request of
victim, the judge may impose a civil penalty in favor of the consumer, who will graduate
depending on the severity of the crime and other circumstances of the case
, regardless of other allowances that apply ....
The civil penalty is imposed may not exceed the maximum penalty
fine provided for in Article 47 paragraph b) of this law. " ___________________ _____
Analyzing this rule out that it
purely punitive purpose but their purpose is not only to punish the defendant for conduct
serious, but also to discourage in the future, meaning that
is a punitive sanction and defensive at a time, but mostly
deterrent to prevent the recurrence of similar incidents in the future.
________ _____ As the appellant contends the law does not need to claim or
demonstrated an enrichment of the defendant having determined the doctrine
not just the mere failure requirement is being
is set to conduct serious, the presence or possible fraud or gross negligence
(although not required by law). In this particular case,
brokered a gross negligence of the defendant, against
presentations made by the user, which is what the law seeks to prevent, with attitudes
delaying the strong part of the contract remain "captive" users,
putting obstacles to the termination of the contract which had already expressed
operated by plaintiff's decision on February 6, 2009. ________________ _____
regard should add that one of the grievances of the appellant is that the judge
extent misinterpreted I did place partially
demand (whereas in fs.122 row. third paragraph) "in the terms expressed in
fs.28 agreement, this solved the
contractual relationship bound them." Assists for the appellant in this regard but
that error does not cause a detriment to the appellant specifically upheld
the demand, but it is true that the alleged agreement failed and are not those
the terms of the demand because the contractual relationship was
and determined from the record the day on February 6, 2009, as stated repeatedly
. Although the decisions in terms of resolving contractual
does not cause any grievance, it is considered that the judge based on what
solved part of a misconception to assess punitive sanction
apply.
_______________________________________________________ _____ The blameworthiness of the conduct of a party, its intent or degree
reflecting its indifference to the users is the central point
to consider fixing the penalty provided in the standard, which
this particular case, it is estimated in the sum of $ 20,000 compared to the repeated
failures despite the time elapsed since the filing of the
first note to terminate the service, and to transfer lines
until the date of this in condemning the defendant to comply with the request of the consumer
the company two years earlier.
________________ _____ Aware of the above vote for the amendment of the sentence,
making room for a punitive sanction that I believe should be set at $ 20,000
imposing costs to the defendant in both instances. ______________ _____
Dr. Liliana T. Loutayf Ranes said
_____ adhering to vote above. ____________________________ _____
Therefore:
THE FIRST DIVISION OF THE HOUSE OF APPEALS IN CIVIL AND COMMERCIAL
_____ I) Makes the writ filed by the actor and in his merit,
Reverse the last paragraph of the statement fs. 121/123 row. Making room
the punitive damage claim, which is set in the amount of $ 20,000 (pesos
twenty thousand) amount to be paid by the defendant within ten days of signing this
be. With costs against the defendant in both instances. _____ II) Register, report and download the file. _____________________
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