The Civil Municipal Court of Brasilia ordered the Institute of Superior Education of Brasilia to return 9.33% of the monthly fees from March to December to all the students enrolled in 2020, by reason of the spread of the pandemic and the shift to remote teaching. The Office of the Public Prosecutor appealed the decision based on the alleged contractual imbalance and a failure to adequately consider the prejudice suffered by the Institute due to the COVID pandemic.
The Civil Municipal Court of Brasilia ordered the Institute of Superior Education of Brasilia to return 9.33% of the monthly fees from March to December to all the students enrolled in 2020, by reason of the spread of the pandemic and the shift to remote teaching. The Office of the Public Prosecutor appealed the decision based on the alleged contractual imbalance and a failure to adequately consider the prejudice suffered by the Institute due to the COVID pandemic.
By decision of 4 April 2022, the Federal Supreme Tribunal (STF) upheld the challenge and annulled the decision by the Civil Court of Brasilia. The appeal decision conforms to a precedent by the same STF in which the Tribunal declared automatic linear discounts to be unconstitutional. In that occasion, the STF had stated that a decision by a court to grant linear discounts to students must be considered unconstitutional whenever the court fails to adequately assess how the pandemic effectively impacted on both students and educational institution based on the specific and demonstrated circumstances of the case.
At the outset, the Tribunal noted that the pandemic has caused severe economic vulnerability to both parties to the educational contract. Hence, in deciding whether to recognise students a right to partial reimbursement, courts should assess whether or not the pandemic effectively caused excessive onerosity. In order to satisfy such requirement, courts need to assess (i) the specific characteristics of the programme and courses; (ii) the quality of the activities offered remotely; (iii) the hourly workload offered; (iv) the types of assessment and evaluation; (v) the extent to which students could participate in (virtual) class activities; (vi) the costs incurred by both students and institutions to switch to remote learning, (vii) the investments undertaken by the institution to adjust to remote teaching, as well as to train teachers; (viii) any relevant cost imbalance of the services provided; (ix) the existence of a schedule to replace inherently practical activities that had to be transposed online; (x) any loss in the student and families’ purchasing power due to the pandemic, and (xi) whether the parties attempted to solve the dispute amicably.
