Milena Wydra: 'Você sabe o que é contrato de adesão?'

A lei 8078/90, em seu artigo 54, estabelece: “Contrato de adesão é aquele cujas cláusulas tenham sido aprovadas pela autoridade competente ou estabelecidas unilateralmente pelo fornecedor de produtos ou serviços, sem que o consumidor possa discutir ou modificar substancialmente seu conteúdo“. Temos exemplo bem conhecidos, como os contratos de fornecimento de água ou energia elétrica, transporte urbano, etc.

Ou seja, é o tipo de modelo contratual que supõe que aquele que produz um produto ou um serviço de massa (isto é, que alcance um grande número de pessoas) elabora um contrato geral que veio a ser chamado pela lei 8.078 de contrato de adesão

A primeira lei brasileira que tratou da questão foi exatamente o Código de Defesa do Consumidor: no seu art. 54 está regulado o contrato de adesão. 

E por que o contrato é de adesão? 

Ora, pois o consumidor só pode aderir a seus termos e condições. Não há possibilidade de discussão de cláusulas.

Assim, por serem contratos elaborados por uma das partes da relação comercial ou consumerista, muitas vezes ocorre abusividade em seu conteúdo. Isso significa impor a uma das partes uma vantagem desproporcional ou, ainda, a chamada desvantagem ao consumidor ou contratante aderente, o que é proibido. 

O legislador, ciente do risco de utilização de tais cláusulas pelos proponentes de contratos de adesão, criou o artigo 51 Código de Defesa do Consumidor, que trata e estabelece uma série de itens que proíbem disposições contratuais consideradas como excessivamente prejudiciais aos consumidores. 

Assim, os consumidores devem ficar atentos ao assinarem um contrato a: (i) cláusulas que impossibilitem, exonerem ou atenuem a responsabilidade do fornecedor por vícios de qualquer natureza dos produtos e serviços ou impliquem renúncia ou disposição de direitos; (ii) cláusulas que subtraiam ao consumidor a opção de reembolso da quantia já paga, nos casos previstos neste código; (iii) cláusulas que transfiram responsabilidades a terceiros; (iv) cláusulas que estabeleçam obrigações consideradas iníquas, abusivas, que coloquem o consumidor em desvantagem exagerada, ou sejam incompatíveis com a boa-fé ou a eqüidade; (v) cláusulas que deixem ao fornecedor a opção de concluir ou não o contrato, embora obrigando o consumidor; (vi) cláusulas que permitam ao fornecedor, direta ou indiretamente, variação do preço de maneira unilateral; (vii) cláusulas que autorizem o fornecedor a cancelar o contrato unilateralmente, sem que igual direito seja conferido ao consumidor. 

Por ser o contrato de adesão, negócio jurídico consensual, para que nasça o vínculo contratual, basta que o aderente manifeste sua aceitação, expressa ou tácita, de submeter-se às condições dadas pelo fornecedor ou proponente.

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