Buffet cannot charge fine for party canceled due to Covid-19 crisis

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By recognizing the existence of force majeure, with consequent release of previously assumed obligations, the 35th Chamber of Private Law of the Court of Justice of São Paulo maintained the termination of the contract between a consumer and a company providing buffet services, determining the reimbursement of amounts paid by the author.


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dolgachov Buffet cannot charge a fine for a party not held during the epidemic, says TJ-SP
The buffet had been hired for a wedding party, which did not take place due to the quarantine decreed in the State of São Paulo as a measure to combat Covid-19. The author had already paid around R$4,000 for the services, but the company refused to return the amount, citing a contractual clause that provided for the charging of a fine in the event of termination.

The rapporteur of the appeal, judge Gilson Delgado Miranda, stated that, whether due to unforeseeable circumstances or force majeure, the contracted wedding party Portugal Mobile Number List cannot be held and such impossibility is not attributable to either party. He also said that the buffet did not allow the author to reschedule the event or cancel it with credit available.

"The proposal that the amount already paid by the appellee, almost equivalent to the contractual fine, would be 'as a credit for the contracting of a new event in the future' was only conveyed in opposition, already belatedly, being unable to erase from the world legal the illicit that would already be characterized if such legislation were applicable", he stated.

For Miranda, there is no need to talk about unilateral termination of the contract, since the contracted party cannot take place for reasons beyond the consumer's control, that is, the prohibition of events with crowds due to the pandemic. In other words: it is not a case of imposing a fine on the consumer.
               


"The case, then, is resolution (and not mere termination) of the contract due to the impossibility of performance, without the fault of either party", stated the judge, adding that such resolution "operates without the incidence of any penal clause, since absent fault (article 408 of the Civil Code), and with return of part of the price that had already been paid (return of the parties to the 'status quo ante')". The decision was unanimous.