Direito contratual antidiscriminatório: a interpretação do art. 39, IX, do CDC à luz da legalidade constitucional

Abstract

The central scope of this study is to analyze the following question: “Can a supplier of goods and services in the consumer market refuse to provide them to someone willing to contract?” Accordingly, the purpose is to examine Article 39, item IX, of the Brazilian Consumer Protection Code (CDC) in light of constitutional legality. Within this framework, the dissertation analyzes discriminatory practices in the Brazilian consumer market and proposes legal mechanisms to combat them through the lens of anti-discriminatory contract law. It is grounded in the 1988 Federal Constitution, which enshrines the dignity of the human person and the construction of a free, just, and solidary society, to argue that contractual freedom must be limited by substantive equality and the prohibition of discrimination. The study departs from the hypothesis that a discriminatory refusal to contract, based on disability, sexual orientation, gender identity, religion, or appearance, constitutes a direct violation of the principle of equality and an abusive practice prohibited by both the Consumer Protection Code and the Federal Constitution. The research adopts a qualitative methodology, combining bibliographic review and jurisprudential analysis based on concrete cases. Structured into three chapters, the dissertation first presents the theoretical framework of constitutionalized civil law and demonstrates that private autonomy must be harmonized with the dignity of the human person. It analyzes contractual refusals directed at three vulnerable groups (persons with disabilities, the LGBTQIAPN+ population, and Afro-Brazilian religious communities) whose experiences reveal that the consumer market remains ableist, cisheteronormative, and centered around majority religions. The second chapter defines parameters of legitimacy for the refusal to contract, distinguishing legally admissible hypotheses (such as statutory reasons, improper consumer behavior, and protection of the collective dimension of consumption) from arbitrary refusals that conceal discrimination under the guise of private autonomy. It argues that the motivation behind the refusal and the transparency of the criteria adopted are indispensable requirements for assessing whether the supplier’s conduct deserves legal protection. In the third chapter, the dissertation proposes concrete mechanisms to confront discrimination, such as specific performance according to the creditor’s useful interest; the broadened inversion of the burden of proof, grounded in the CNJ’s Gender and Racial Perspective Judgment Protocols; the creation of supplier registries guided by the Ruggie Principles; the proactive role of the National Consumer Protection System; and the formulation of public policies on legal education. The study concludes that combating discrimination in consumer relations requires more than compensation for moral damages — it demands structural policies of inclusion and social transformation. The dissertation contends that contracts must serve as instruments for promoting social solidarity and that civil law, interpreted in light of the Constitution, must play an active role in building an inclusive, plural, diverse, accessible, and substantively equal consumer market.