Customer who crashed car in test-drive does not need to reimburse the dealership, says Justice

The Court of Justice of Minas Gerais (TJMG) decided to remove the liability of a consumer for damage caused to a vehicle during a test drive. The decision was handed down by the 5th Panel of the Nucleus of Justice 4.0 – Private Civil, which denied the appeal of a concessionaire in Belo Horizonte and maintained the exemption from compensation to the driver, under the understanding that the risk of the activity falls on the supplier.

The case originated after a collision in the rear of the vehicle that was being tested by the customer. The concessionaire alleged, in the process, that the driver would have acted recklessly when braking abruptly on a road with heavy traffic. In addition, the company defended the validity of a “term of responsibility” signed by the customer before starting driving, which provided for the compensation of any losses.

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Enterprise risk and consumer rights

The company’s thesis, however, was not accepted. According to the rapporteur, Judge Kenea Márcia Damato de Moura Silva, the braking carried out by the customer was a safety maneuver justified by the unexpected conduct of another car. The magistrate stressed that the maneuver is in accordance with the Brazilian Traffic Code and does not constitute fault on the part of the driver.

The decision also highlighted that the relationship between the parties is governed by the Consumer Protection Code. As the test-drive is an essential marketing strategy for attracting customers and making sales, accidental damage is part of the risk of the dealership’s business. In this context, contractual clauses that fully transfer this responsibility to the consumer were considered unfair and null and void.

Although the customer was exempted, the Court maintained the liability of the third driver who collided with the rear of the test car. The exact amount of compensation that the concessionaire must receive from this third party will be defined in the judgment settlement phase, based on proof of the necessary repairs.