The present work "Civil Liability for Damage Caused by Defective Products", aims to carry out a general study, taking into account its category, of some of the aspects that revolve around this problem so susceptible in modern society.
To do this, a global and critical analysis of the institutions, theory, doctrine and main legal provisions that address this matter is developed, with special emphasis on the correction for hidden defects or defects, the civil liability of the manufacturer and that of the supplier.
Civil legal liability. Sanitation for hidden defects or defects.
Civil Liability is any obligation to satisfy, by the person who owes it or by another person, any loss or damage that had been caused to a third party because it is required by the nature of the original convention, being determined by law or provided for in the stipulations of the contract, in the case of civil legal liability derived from the breach of civil contracts, as is the case that we are dealing with in this work; but to this we must add that it operates with an objective character since it will be enforceable with all intention of compensating the victim even though its production does not involve the fault or negligence of the person obliged to repair, implying submission to the legal reality in the face of the damage.
Responsibility has no other purpose than to ensure the harmony necessary for the free development of social relations.
For the Contractual Legal Responsibility, it is produced by damages originated by the breach of an obligation, it is based on guilt and imputability and its origin is in the convention or work of private wills, including the correction for hidden defects or defects, collected in our Civil Code, within the purchase-sale contract.
The reorganization in a general sense takes place when the hidden defects that the thing sold has makes it unfit for the use to which it is intended, or diminishes in such a way that if the buyer had known about it, he would not have acquired it or would have given a lower price for it.
The vice must be hidden because it is not liable for the manifest defects that were in sight, nor for those that the buyer should know by reason of their trade or profession.
This is how it is recognized by our substantive civil law, not very fully compatible with the modern trend of objectifying liability, since although on the one hand it provides that it be required regardless of the intention or not of the person obligated to respond (Tendency Objective), on the other hand, conditions it, for example: the seller responds for hidden defects, although he ignores them if they are not evident or should be known to the buyer by reason of his profession or trade, but leaves the evidence of the buyer very subjective. knowledge depending on the capacity of the buyer.
In these cases, the buyer may choose between withdrawing the contract, paying him the expenses he paid, or reducing a proportional amount from the price in the opinion of experts.
If the seller knew of the hidden defect or defect of the thing sold and did not disclose it to the buyer, the latter will have the same option and also if he opts for the termination, he will be entitled to compensation for damages.
Our Civil Code creates a separate chapter within the purchase-sale contract to deal with sanitation, an important topic of our investigation.
This is where the reorganization proceeds when the defect diminishes the utility sought by the buyer, as long as the defect or defect is not manifest or visible, but the case is not included when the defects must be known by the buyer by reason of their trade or profession, in case the reorganization should not proceed.
Obviously this issue is addressed in a very general way in our Civil Code, as is the case of contractual civil legal liability, especially when it equates civil liability with compensation for damages.
Contractual Responsibility generally appears as the labyrinth of the minotaur where it takes more than Ariadna's thread to venture and obtain good results since the provisions are only easily located in the case of buying and selling.
In the same way, the matter is addressed in the Cuban Civil Code in force from 1889 to 1975, currently repealed, in its chapter IV when it stipulates that the seller is obliged to deliver and clean up the object of sale, in its articles 1484 and 1485, although article 1490 provides that the aforementioned actions will be extinguished after six months, counted from the delivery of the thing sold, that is, it limited, in our opinion, the possibility of the buyer to demand responsibility, especially when detailing the useful life of the goods that are generally acquired through this type of contract.
Now, in both legal bodies civil liability is equated with compensation for damages, forgetting other aspects such as the restitution of the property and the repair of material damage.
Following the line of reasoning, it is valid to point out that Law No. 8,078 of September 11, 1990, the Consumer Protection Code in Brazil, in its articles states that the producer is responsible regardless of the existence of fault.
In addition to having to assume the repairs for damages caused to consumers due to defects in their products and due to insufficient or inadequate information on their use and risks.
Traditional Brazilian law adopts the theory of fault or breach of obligations when it stipulates the obligation to compensate or repair the damage.
The Responsibility to indemnify is configured when there is proven fault, fraud, bad faith or omission; On the other hand, for the Consumer Defense Code, the existence of fraud or fault is of less importance, what matters is that there is a causal link between the damage and the product, that is, if there is a cause-effect relationship between the product placed on the market and the damage suffered, there is a duty to compensate.
The simple placing of the product on the market is a generating factor for the repair of the damage.
The consumer only needs to prove that they used the product.
The objective Responsibility belongs to the producer when the damage results from a production defect or inadequate information on its use and it belongs to the merchant or distributor when they place products on the market without identification, or if the defect that causes the damage is due to poor conservation.
Even when inaccuracies and errors are observed in the code, on the above we consider that it justly includes objective and extra-contractual civil liability, beyond its simple theoretical differences.
In the case of the Civil Code in force in Cuba, the way in which Civil Liability for damages is regulated for any legal act or business is contradictory because Civil Liability in this law is not treated as an independent institution, but appears dispersed in such a way that it contributes to the lack of clarity and to its misuse and interpretation, favoring contradictions.
Likewise, the issue of the purchase-sale contract is addressed and within it the purchase-sale contract in retail establishments, included in title III, book III where it is stipulated within the seller's obligations to warn the buyer of the hidden vices or defects that the sold good has, responding to the damages and losses caused by the breach of this obligation.
The vices can be legal, which are those that consist of a serious limitation of the right transmitted or in fact when it comes to intrinsic defects of the thing sold.
These are the ones that receive, in the strict sense, the denomination of hidden or redhibitory vices.
In order for the vice to have a redhibitory character, it must be concealed, unknown by the buyer, harmful to the utility of the thing and prior to sale.
In article 366.1 of the Civil Code, rights derived from the guarantee are set out, which would always be exercised before the selling entity, which is in contradiction with article 24 of Resolution No. 74 of 1987, since it establishes that the guarantee The commercial area extends to the entire national territory and any change or refund can be made at any commercial establishment.
Civil legal liability of the manufacturer and the supplier.
Manufactured products occasionally cause damage to the health or property of their users, consumers or even third parties due to manufacturing defects and this is where the question of who is civilly liable, if the manufacturer or the seller, comes in.
For this analysis, we start from two assumptions: when the manufacturer and the seller coincide in the same person, in which it operates more easily since the consumer is linked to it through the contractual legal relationship and in another case when they are different people in which liability is derived extra-contractual.
To this it is convenient to add that there is a doctrinal consensus in proposing the theory of liability for a wrongful act, that is, the producer responds for the damages caused by defective products, whatever the initial relationship that linked him to the final recipient of the product, of course that the principle of scientific uncertainty is always invoked to request the mitigation of liability but it is never sufficient to the extent of achieving exemption.
In a highly curious way, the problem is addressed, from the manufacturer's civil liability, by the legal systems of the different European Community States, from the analysis made of the Community Directive of July 25, 1985 that determines a radical turn in the policy to follow.
In this way, it is pronounced because the manufacturer is responsible for the risk that it has caused, even if it acts with due diligence.
Assuming that the responsibility for the damage caused by the defective product should fall on the person who created the risk, the manufacturer, being the one in the best position to control the quality and safety of the product, since he is the one who is in a better position to assume the risk by distributing it to all consumers through insurance, the premium of which will be incorporated into the price.
The first statute to accept the principle of strict liability is the American one, specifically enshrined in the Supreme Court of California in 1962.
Proposing that the producer will be responsible for the damages caused by the defects of their products, formulation that, together with the provision of art. 4, which determines that the victim must prove the damage, the defect and the causal link between the two, but not the fault of the producer, highlights the basic principle informed by the Directive: that of the manufacturer's objective non-contractual liability, specified in its scope by the provisions of art. 7, d) and e), which establishes that the producer is not responsible if he proves that the defects are due to the conformity of the product with the imperative norms of the public powers or are development risks, so its analysis is necessary to determine the scope of strict liability established by the Directive.
Development risks are those defects in products that are known as a consequence of scientific and technical advances after they were put into circulation, so that at the time of this the manufacturer could not detect them in any way.
Although the controversy that they have aroused is complex and rich in nuances and opinions, the axes of it revolve around two opposing considerations: on the one hand, the one that considers that the manufacturer must be liable for the development risks since otherwise it is the consumers who bear exclusively these risks of progress, despite being the producer who creates them and benefits from them; on the other, the one that, on the contrary, argues that if the manufacturer bears the development risks, the manufacture and commercialization of the products will be paralyzed, fields in which they are produced most frequently, also estimating that if such risks are borne by the producer, liability insurance, which ultimately works to the detriment of consumers.
And, in any case, if these risks were borne by the producer, it would be essential to establish a maximum limit of the amount of global compensation that should be paid for damages caused by identical items with the same defect, reaching a consensus that the manufacturer is not responsible in principle of development risks, as established in art. 7, subsection e).
The manufacturer under art. 7, d) is also not liable if it proves that the defect is due to the product conforming to mandatory rules issued by the public authority.
In relation to this rule, it is enough to emphasize that the technical or production standards to which it refers must be dictated by the public powers and have an imperative nature, which means that both the technical standards issued by institutions of various kinds, whether or not they are endorsed by the public powers and whether or not they carry private sanctions, such as those of a non-mandatory public nature, are outside the factual assumption of the article.
Finally, the Directive also considers that intermediaries should be liable in a supplementary way, being for this purpose considered as manufacturers, the intermediaries in case the manufacturer is not known, unless they identify him or his supplier in a short time.
From what has been stated so far in relation to the circle of those responsible, it can be deduced that there will often be several. And, in effect, there are different assumptions determining this situation: when the defect comes from the partial manufacturer, the latter and the final producer respond; where there is an apparent entrepreneur or an importer, they will be liable together with the actual manufacturers, and in the case of imported products a Community distributor will be liable together with the legitimate known extra-Community liabilities if the importer is not identified.
All of them will be answered in solidarity. Always valuing the fault of the victim as a form of reduction or annulment of responsibility, a question that was already addressed in the initial analysis of the investigation, constituting this preponderant criterion in modern doctrine.
To this must be added that it does not respond if it can prove that it did not put the defective product into circulation, or that the defect did not exist at the time it was placed on the market, that is, it is taking for granted that it responds when acting in bad faith, entering into contradiction with its own criteria promulgated that it is liable for the damages caused.
As already noted, evidentiary issues are of great importance within the manufacturer's civil liability to the extent that one of the reasons why the tort liability regime is inadequate to protect the victim is that the burden of the test that weighs on her in principle generates her helplessness.
Well, also within strict liability there are delicate probative questions and specifically arts. 4 and 7, b) constitute the normative solution that the Directive offers to them, a solution that attempts an equitable distribution of the burden of proof between the manufacturer and the victim.
Now, it is easy to see that the victim's need to prove that the defect originated in the manufacturer's production process can often determine their defenselessness, in the same way that the proof of fault in a liability regime produces it. because of fault.
For this reason, the jurisprudence of the different countries tends gradually to reverse the burden of such proof. This is a fair rule since in the vast majority of cases the victim cannot know, much less prove, if the product was defective when the manufacturer put it into circulation after a production process, which can be very complex, or was later when it was inserted in the distributive canal, which can be very long.
The supplier of the defective product will respond, as if it were the manufacturer, when it has supplied the product with reliable knowledge of the existence of the defect.
In this case, the supplier may exercise the action of repetition against the manufacturer or importer (Additional provision), a rule that surely contravenes the provisions of the Directive and does not contribute anything new, since the general rules of contractual liability are it deduces that the seller in bad faith is liable for the damages caused by the thing sold to the person or the goods of the buyer, and, finally, a new wording is given to art. 30 of the 84 Law on the establishment of a compulsory insurance system (Second final provision).
In the Argentine Civil Code, civil liability operates for the person obligated to deliver things, as long as they do not prove that there was no fault on their part; and in damages caused by risk or vice of them, unless they prove the fault of the victim or of a third party for whom they should not answer, for which in the latter hypothesis they are only released by proof of the rupture of the causal relationship.
The Civil Code, therefore, from law 17,711, literally accepts responsibility without fault, based exclusively and exclusively on the causal relationship. That objective attribution of the duty to compensate, which seemed so antithetical to the ideology of the Vélez Sársfield Code, is now generally accepted.
Spain as a country that defends this new trend towards the objectification of liability and promoter of the defense of consumers and users, in its Law No. 22 of July 6, 1994 on damage due to defective products, and it is worth here to establish the technical difference between defective product and dangerous product, since both are mutually exclusive, especially when it may be inappropriate for the use for which it is intended and does not necessarily present danger in its use and vice versa; It includes the possibility of fault of the injured party, reducing in this case or canceling the liability of the obligated party, whether supplier, manufacturer and importer, since it extends it to all, the supplier being able to go repeatedly against the other two, establishing a prescription period to exercise the action of three years,This question could also be debated, given the nature of the products that are acquired in modern commercial traffic.
If everything that has been adduced up to here turns out to be insufficient to show from a fairly general perspective the issue of responsibility to respond to consumers and users as victims of modern trends in mass contracting and adhesion contracts, it should therefore be added that the Law on Relations of Consumption 17.189, approved on September 7, 1999, offers in its chapter VIII the contractual guarantee of products and services, imposing on the supplier the obligation to respond and in its chapter XIII, it treats as an independent institution the liability for damages, always referring to supplementary way to the Civil Code.
It is passed by Law No. 47 of Retail Trade of Spain, which also includes the after-sales service and by Law No. 17 of 1996, of the country itself, which includes a regime of infractions and sanctions derived from non-compliance and within them those derived from the production of damage due to defective products. Likewise, LAW No. 17,189, Regulations Relating to Consumer Relations, of Uruguay is pronounced, which together with Colombia have made important contributions in this controversial and sensitive field.
