The Antisocial Consumer

Abstract

This article examines the legitimacy of the refusal to contract under Article 39, IX, of the Brazilian Consumer Protection Code, proposing the development of the concept of the antisocial consumer as a legal category capable of justifying, in exceptional circumstances, the exclusion of the duty to contract. It is premised on the understanding that the prohibition against refusing to provide services does not impose an absolute duty to contract upon suppliers, allowing refusal in exceptional situations involving abusive, aggressive, or disrespectful conduct on the part of consumers. By analogy with the legal concept of the antisocial condominium owner, the article proposes criteria for identifying exceptional situations that justify the refusal to contract, as well as for defining the procedural safeguards to be observed by suppliers. From this perspective, three paradigmatic scenarios are examined: (i) inappropriate conduct directed at the supplier's employees; (ii) inappropriate conduct toward other consumers; and (iii) non-compliance with public health and safety regulations. The article also analyzes the legal framework governing the “unruly passenger” in air transportation as a normative benchmark. Furthermore, it argues that the refusal to contract must comply with the horizontal effect of fundamental rights, particularly the rights to adversarial proceedings and due process, thereby allowing suppliers to enforce such refusal without prior judicial authorization, provided that the requirements of proportionality, temporariness, and reasoned justification are observed. It concludes that the concept of the antisocial consumer provides legal parameters for an exceptional refusal to contract that are consistent with the constitutional order and with the protective purpose of consumer law.