The Disabled Consumer and Educational Services Contracts in Brazil

Abstract

In the legal systematisation of the first Brazilian Civil Code (1916), a person with mental, intellectual or sensory disability was considered absolutely incapable of performing personally the acts of civil life (Article 5), which deprived such person of the power to act according to private autonomy. A person with mental, intellectual or sensory disability was often seen as a burden to his family; since such person required special care, showed no signs of social and/or economic return and because of this was even kept invisible to the community. The current Federal Constitution, promulgated in 1988, albeit recognised as the most plural in Brazilian political history, did not reap immediate results regarding the protection of Fundamental rights of people with disabilities. Even with the edition of the current Civil Code (2002), and after almost a decade and a half of its validity, the legal status of the disabled person had not reached a standard of human dignity compatible with the democratic rule of law. That is because the second Brazilian Civil Code repeated the guidelines on absolute incapacity regarding people with mental, intellectual or sensory disabilities (Article 3). Moreover, a set of constitutional provisions does not mean effectiveness of its legal content in the social fabric. The best possible expectations were renewed with the publication of Law 13,146 of 06.07.2015, establishing the Statute on Persons with Disabilities, to ensure and promote, on equal terms, the exercise of the rights and freedoms of disabled people, aiming at their social inclusion and citizenship. Yet, before the law fulfilled its vacatio legis, the National Confederation of Educational Institutions (CONFENEN) filed in the Federal Supreme Court (STF) the direct action of unconstitutionality (ADI) 5357/DF to repeal § 1 of its Article 28 which prohibits private institutions of any level and type of education to seek additional payment of any kind on their tuition, annual and enrolment fees. However, the highest court of the Brazilian judiciary enforced the Human rights of the disabled consumer concerning contracts for provision of educational services.