10.3 Defective Products Liability Act
Civil liability concerning damages caused by defective products must be claimed in the first place pursuant to the provisions of Law 22/1994, of 6 July, which incorporated into Spanish law the EEC Directive of 25 July 1985 (85/374/EEC). The DPL Act took effect on July 8th, 1994.
However, the DPL Act will not be applicable to products put into circulation before it took effect on July 8th 1994 (Single Interim Provision). Civil liability shall have to be claimed under the laws that were in force at the time.
The liable party could also be held liable under the general civil liability legislation pursuant to Article 15 of the DPL Act (basically arising out of the breach of contract or of tort).
10.3.2 Highlights of the DPL Act
The general principle is that "manufacturers and importers shall be liable .... for damage caused by the defects of the products they manufacture or import, respectively" (Article 1).
Scope of the protection
The DPL Act covers death and personal injuries as well as damage to any item other than the defective product itself, provided that the damaged item is objectively intended for private use or consumption and was used by the injured person mainly for his own private use or consumption. In the latter case a deduction in the amount of 65,000 pesetas shall be applied. All other damages, including pain and suffering ("danos morales"), may be covered according to general civil legislation. The Law does not apply to injury or damage arising from nuclear incidents provided that they are covered by international conventions ratified by the Member States of the European Union (Article 10).
Legal concept of product
A product is defined as any movable good, even if incorporated into another movable or immovable good, with the exception of agricultural and stock-farming raw materials and game and fish produce. Product also includes gas and electricity (Article 2).
Legal concept of defective product
A "defective product" is one which does not provide the safety which one can legitimately expect, taking all circumstances into account and particularly the presentation of the product, its reasonable foreseeable use and the time when the product was put into circulation. A product shall not be considered defective for the sole reason that an improved product of the same type is put into circulation after the original product is put into circulation. The DPL Act also provides that in any case, a product shall be deemed as defective if it does not offer the safety which is normally offered by other units of the same series (Article 3).
Legal concept of producer and importer
The term "manufacturer" includes the following: (a) the manufacturer of a finished product; (b) the manufacturer of any integrated part of a finished product; (c) one who produces a raw material; or (d) any person who presents himself to the public as its manufacturer, putting his name, trademark or any other distinctive sign on the product or on the package, envelope or any other element of protection or presentation (Article 4). This definition is similar to that contained in Article 3.1 of the Directive. An "importer" is a person who, in the course of his business activity, introduces a product into the European Union for its sale, hire, leasing or any other form of distribution (Article 4.2). If the manufacturer cannot be identified, each supplier of the product shall be deemed to be a manufacturer, unless he informs the injured person within a period of three months of the identity of the manufacturer or of the person who supplied him with the product. The same shall apply, in the case of an imported product, if the product does not indicate the identity of the importer even if the name of the manufacturer is indicated (Article 4.3). The Single Additional Provision of the DPL Act sets forth that a supplier will be liable as if he was the manufacturer or importer when he supplies the product knowing the existence of the defect. In such a situation, a supplier may have recourse to the manufacturer or to the importer.
The DPL Act provides for strict liability in that the injured person must prove the defect, the damaging result and the cause-effect relation between the defect and the damage, but not the fault of the manufacturer or importer (Article 5). However, the manufacturer can claim certain defences to release himself from liability (Article 6), including contributory negligence on the part of the injured person (Article 9).
The manufacturer's defences under the DPL Act (Article 6) are very similar to those listed in Article 6 of the Directive. Pursuant to Article 15.1.(b) of the Directive, the DPL does not recognize the defence based upon technological risks where medical products, food and food products aimed at human consumption are concerned (Article 6.3). As far as the defence of following imperative rules issued by public powers is concerned (Article 7,d Directive), the DPL Act only refers to 'imperative rules in force' (Article 6.1,d).
Fault of injured person: contributory negligence
Where the damage is caused both by a defect in the product and by the fault of the injured person or any person for whom the injured person is responsible, the manufacturer's liability may be reduced or eliminated. This determination is based on all the circumstances surrounding the case (Article 9) similar to Article 8.2 of the Directive.
Fault of third parties
The manufacturer's or importer's liability shall not be reduced where the damage is caused both by a defect in the product and by the intervention of a third party. The DPL Act also provides that a person liable under the Act who has paid damages can claim from the third party a portion of such damages prorata to the third party's intervention in the causation of the damage (Article 8).
Joint and several liability
Persons liable for the same damage under the DPL Act shall be jointly and severally liable (Article 7, similar to Article 5 of the Directive).
Liability for death and personal injuries caused by identical products with the same defect is globally limited to 10,500 million pesetas.
Limitation period and expiration of liability
Any claims under the DPL Act are limited to a period of three years which runs from the day on which the injured person suffered the injury or damage. In any event liability expires 10 years after such date in which the manufacturer put the defective product into circulation unless the injured person has brought in that period of time legal proceedings against the responsible party (Articles 12 and 13).
Invalidity of waivers
Any contractual waiver or limitation of liability is null and void (Article 14).
Contractual and non-contractual liability
Legal actions under the DPL Act do not affect any rights that the injured person may have under the general civil liability legislation basically arising out of the breach of contract or of tort (Article 15).
Liability for defective products may be claimed:
(i) in any event under the general civil liability legislation basically arising out of the breach of contract or of tort;
(ii) for products that were put into circulation before July 8th, 1994, under the Consumers and Users General Protection Act of July 19th, 1984;
(iii) for products that were put into circulation after July 8th, 1994, under the Law 22/1994, of 6 July.
Madrid, 28th February 1995.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstance.
For further information contact Mr. Jorge Angell, L. C. Rodrigo Abogados, Madrid Spain. Fax: +341 576 6716 or enter text search 'L.C. Rodrigo Abogados' and 'Business Monitor'.