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Three
sources of responsibility or fundamental sources of obligations and of
responsibility in the Spanish law exist potentially: the law, the contract
(and the cuasicontratos) and any action or illicit or negligent omission.
Second
source originates contractual responsibility, which arises in a
contractual relation, and third, extracontractual responsibility, that is
born of the infraction of having general tax by the law of not causing to
damage or damage to third with which contractual relation does not exist.
Although
certain cases in which the Civil Code anticipates an objective
responsibility, in general exist, the civil responsibility is based on the
fault. The jurisprudence, nevertheless, frequently has invested the burden
of proof. In other cases, the objective responsibility has been imposed by
some special statute as it is the case of the responsibility by defective
products.
The
Constitution (art. 51), urges to the powers public to that they guarantee
the defense of the consumers and users protecting his security, health and
legitimate economic interests through effective procedures. The powers
public also come forced to promote the information and education of the
consumers and users, to foment their organizations and to take care of to
them in any subject that can affect to them in the terms anticipated in
the law.
The
General Law for the Defense of the Consumers and Usuarios (LGDCU)
promulgated the 19 of Julio of 1984 after the tragedy of the oil of colza
that supposed 475 victims and thousands of victims. This is known in Spain
as "the case of the oil colza". The oil destined to industrial
uses apparently was denatured with aniline and was sold like oil to cook,
in the domestic scope.
Ambito
of the LGDCU
From
a subjective point of view, the LGDCU has been designed to protect to the
consumers and users. These stay defined as those physical or legal people
who acquire, use or enjoy like final receivers movable or immovable
properties, products, services, activities or functions, independently of
the governmental function, deprived, individual or collective of the
manufacturers, suppliers, providers or senders.
On
the other hand, from an objective point of view, the LGDCU talks about so
much to defective products as to services, therefore, its reach exceeds
the terms of the Director Council 85/374/CEE 25 Julio 1985 (the Director),
who deals with responsibility by defective products and the dispositions
of Law 22/1994 of 6 of Julio de Responsabilidad by Defective Products (in
ahead, LPD), that the referred Director transposed to the Spanish
ordering. The products and services include an ample number of matters,
even the real estate property.
The
consumers who cannot be described like final receivers, but that they
acquire solely, store, use or consume products or services with object to
incorporate them to productive processes, of transformation,
commercialization or distribution to third, does not have the
consideration of consumers and users. The potential scope of demanded is
ampler than established in the Director and the LPD, every time the LGDCU
includes not only the producers (without it defines what is understood by
such), but also to suppliers, providers and senders. This is, the complete
chain from the production to the distribution (including wholesalers and
retailers). Under the parameters of the LGDCU, any product manufacturer,
importer, distributor or provider or services can be in the tesitura to in
front of respond consumers and Spanish users in reason to the origin,
identity and adjustment of these products or services, always having in
consideration the applicable nature and object of these products and norms
for his production, distribution and use.
The
LGDCU establishes an ample protection that extends so much to the
precontractual phase of the relation like a the same contract through one
detailed regulation of the denominated abusive or unjust clauses. In the
matter of consumption, the autonomy of the will, angular stone of the
Spanish contractual Right, is severely debilitated then not only the
freedom of the salesman but also the one of the buyer they are seriously
restricted. An example of this would be those clauses that exclude or
limit of significant form the responsibility of the salesman, which they
would be considered null.
The
protection articulates through a specific system of responsibility for
products and defective services regulated in Chapter VIII of the Law.
Nevertheless, from the take effect of the LPD, this chapter it is not of
application to put defective products in circulation after his use, but
solely to the defective services. Any reference in the successive thing to
defective products, therefore, will talk about to those products put in
circulation prior to the use of the LPD (8 Julio 1994).
a)
Contractual and extracontractual actions
The
LGDCU does not contain any reference (except for the had thing indirect
form in article 29) to the contractual or extracontractual scope of the
responsibility born of products or defective services. As the LGDCU
contains a set of measures of protection for contracts celebrated with
consumers, he is natural to assume that Chapter VIII on guarantees and
responsibilities is also of application to referred contracts. Considering
that the intention of the Law is to compensate any damage caused by
products or services defective and defined the consumers and users like
whom they acquire, they use or they enjoy such, would seem clear that the
responsibility been born outside the scope of contracts celebrated with
consumers also would be covered by the LGDCU.
b)
the dual system of responsibility
Chapter
VIII of the LGDCU begins declaring that the consumers and users have the
right to be compensated by those proven damages that the product
consumption or the product use or services can cause to them, unless these
damages had to their exclusive fault or of the people of whom they must
respond according to the civil norm, as it is the case of the employee of
an establishment. The legal base can be appreciated in this declaration to
sustain the objective responsibility; nevertheless, this conclusion cannot
be maintained within the context of the articles 25, 26, 27 and 28 of the
LGDCU and applicable jurisprudence.
The
Supreme Court has confirmed (Sentence of 23 of May of 1991 - Ar. 3784)
that the LGDCU establishes a dual system of responsibility: (i) the
general, who recognizes the responsibility based on the fault although
investing the burden of proof in such a way that the demanded one must
prove its diligente conduct, that the fault falls on the harmed person or
who causes of greater force have interfered in the causality relation; and
(ii) the system special, that establishes the objective responsibility for
certain types of products and services, although limited the amount of 500
million pesetas (very below the limit of 70 million ECUS referred in
Articulo 16 of the Director and the limit of 10,500 million pesetas that
the LPD arranges).
According
to article 28 of the Law, the objective responsibility prevails by defects
arisen from the suitable use of certain products or services that, due to
their specific nature or to practical standardses of application, are
necessarily subject at certain levels of purity, effectiveness or
security, objectively determinables, and to technical, professional or
systematic controls of quality until their make available of the consumers
and users in the had form. The paragraph second of Article 28 enumerates,
for a reason or purpose declarative, the nutritional, pharmaceutical
products, of cleaning and hygienic, services of health, gas and
electricity, means of transport, motor vehicles, household-electric and
elevators, toys and products for children.
c)
Test of the damages: The test of the damage is necessary in accordance
with the general rules of the LGDCU (Article 25). The anticipated general
rules in the Civil Code on the probatory load are of application in this
respect. The presumptions can be used to prove that the harmful event was
caused by the product or service at issue in the measurement in which the
rules on presumptions are fulfilled. So that the presumptions are admitted
like test, the facts of which they are inferred that the presumptions must
meticulously be proven. A precise and direct connection between the fact
proven and the one must exist that is inferred of the same one.
d)
Exceptions for the exclusion of the responsibility: The concurrence of
faults, understood like the fault of the expert harmed one of which the
product or service was defective or that used it inadequately, can even
lead to the reduction or disappearance of the responsibility of the
manufacturer or lender of the service. The greater force can also exclude
the responsibility if as result of same the relation of causality is left
defeat or interfered.
e)
Limitativas or excluding clauses of responsibility: The LGDCU prohibits
those directed clauses to exclude or to limit of significant form the
responsibility of the manufacturer or provider of the product. These
clauses would be null.
f)
Case of several extracontractual people in charge: The general system of
responsibility of the LGDCU establishes the shared in common
responsibility of those people it jeopardize in the harmful event.
Consequently, if more than a person it took part in the production from
the harmful event, these consider shared in common people in charge front
to perjudicado(s) that they will be able to demand to all or to anyone of
them. The demanded one or demanded that pays the totality of the
indemnification will be able to repeat against the rest of the shared in
common people in charge who have not paid their portion corresponding to
the harmed ones in the due proportion.
g)
the responsible part: According to the arranged thing in Article 26 of the
LGDCU, in principle, the manufacturer, importer and distributor (the Law
talks about them like that "they facilitate") of products or
services will respond before the consumers and users by the actions or
omissions who cause damages to them. The potential demanded ones are all
those including in the production chain, from the manufacturer to the
distributor (including the wholesalers and retailers)
h) Prescription of actions: The LGDCU, in contrast to the Director and the LPD who settle down a period of prescription of three years, does not contain reference some to the prescription of actions, will have to be applied to the actions anticipated in the LGDCU the general dispositions on prescription. As the claims by contractual extracontractual responsibility as are possible according to the LGDCU, this period would be of one or fifteen years, respectively.
The originated civil responsibility of damages caused by defective products must be demanded in the first place in accordance with the had thing in Law 22/1994 of 6 Julio, who transposed to the Spanish ordering Director the EEC of 25 of 1985 July (85/374/CEE). The LPD took effect day 8 of 1994 July. But it is necessary to indicate that the mentioned law is not applicable to products put in circulation prior to its take effect the 8 of 1994 July (Unique Transitory Disposition). The civil responsibility will have to be object of claim according to the effective norm to the date.
The person in charge will have to respond, also, in agreement with the settled down thing in the common legislation on civil responsibility, according to the arranged thing in article 15 of the law (basically contractual or extracontractually).
The general principle is that "the manufacturers and importers will be responsible... for the damages caused by the defects of the products that, respectively, make or matter (article 1)".
a) Ambito of application: Law 22/1994 covers the corporal death and injuries, as well as the damages caused to any thing different from the own defective product, whenever the damaged thing is objectively destined to the private use or consumption and in such concept has been used mainly by the harmed one. In this last case, a tax exemption of 65.000 pesetas will be deduced. The other damages and damages, including the moral damages, could be repaid in agreement with general the civil legislation. The Law is not applied to the damages or injuries caused by nuclear accidents, whenever such damages are places setting by international treaties ratified by States Members of the European Union (article 10).
b) legal product Concept: A product stays defined as all property personal one, even though is built-in or united to another property personal or immovable one, except the agrarian and cattle raw materials and products of the hunting and the fishing that have not undergone initial transformation. Product also includes the gas and the electricity (art. 2).
c) legal defective product Concept: He is that that does not offer the security that would legitimately be possible to hope, considering all the circumstances and, specially, their presentation, the reasonably foreseeable use of same and the moment of its putting in circulation. A product could not be considered defective by the single fact that an improved product of the same type has been put in circulation after the putting in circulation of the original product. Law 22/1994 also establishes that, in any case, a product will be considered defective if does not offer the security offered normally by other units of the same series (article 3).
d) legal Concept of manufacturer and importer
"the manufacturing" term includes the following thing: (a) the manufacturer of a finished product; (b) the manufacturer of any element integrated in a finished product; (c) the one that produces a raw material; or (d) any person who appears to the public like manufacturer putting her name, social denomination, marks or to any other sign or symbol in the product or the package, the wrapper or any other element of protection or presentation (Article 4). This definition is similar to the contained one in Article 3,1 of the Director.
A "importer" is the person who, in the exercise of her enterprise activity, introduce a product in the European Union for her sale, renting, financial renting or any other form of distribution (article 4,2). If the manufacturer cannot be identified, the provider of the product will be considered like manufacturer, unless he informs to the harmed one within a period of three months about the identity of the manufacturer or the person who provided the product to him. The same it will be of application, in the case of concerned products, if the product does not indicate the identity of the importer, even although mention to the name of the manufacturer becomes (article 4,3). The Unique Additional Disposition of the law 22/1994 indicates similarly that the provider will be considered responsible, that if outside the manufacturer or the importer, whenever it distributes to the product knowing the existence the defect. In these circumstances, the provider will be able to repeat against the manufacturer or the importer.
e) Objective responsibility: Law 22/1994 articulates a system of objective responsibility in which the harmed one must prove the defect, the harmful result and the relation of causality between the defect and the damage, but not the fault of the manufacturer or importer (Article 5). Nevertheless, the manufacturer can adduce certain exceptions to exonerate itself of responsibility (art. 6), including the concurrence of fault on the part of the harmed one.
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g) Fault of the damaged one: concurrence of faults: When the damage jointly has its cause in a defect of the product and because of the harmed one or by the one of any person for whom the harmed one is responsible, the responsibility of the manufacturer can even be seen reduced or, eliminated. The determination of this possibility is based on the circumstances relative to the case (article 9, similar to article 8,2 of the Director).
h) Fault of third: The responsibility of the manufacturer or the importer will not be able to see reduced when the damage is caused by the defect of a product and the intervention of third jointly. Law 22/1994 arranges, also, that the responsible person in agreement with the arranged thing in her and that it has compensated the damages, it can protest of the third part corresponding of proportional form to the said intervention of third in the production of the damage.
i) shared in common Responsibility: The people responsible by the same damage in accordance with the dispositions for Law 22/1994 will be responsible shared in common (Article 7, similar to Article 5 of the Director).
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k) Prescription and expiration of responsibility: The claims based on Law 22/1994 are subject to a term of prescription of three years, that begins to tell from the day in that the harmed one suffered the injuries or damages. In any case, the responsibility expires 10 years after the date in which the manufacturer put the product defective in circulation unless the harmed one has begun legal actions within this period against the person in charge (articles 12 and 13).
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m) contractual and extracontractual Responsibility: The legal actions based on law 22/1994 do not affect the rights that the harmed ones can show according to the general norms on civil responsibility as a result of contractual or extracontractual responsibility (article 15).
As a conclusion, it is possible to indicate that the responsibility by defective products can call to each other:
a) Always, in agreement with the general dispositions on contractual or extracontractual civil responsibility.
b) In relation to products put in circulation before the 8 of 1994 July, in agreement with the norms established in the General Law for the defense of the Consumers and Users of 19 of 1984 July.
c) In relation to products put in circulation after the 8 of 1994 July, in agreement with Law 22/1994, of 6 of July. |
