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Liability for damages caused by defective products


What is it?

 In case of a damage caused by a defect of the product, the Consumption Code establishes the principle of the absolute liability of the producer, independently from the fault ( so even if during the production phase he has not acted faultily or maliciously).

 If it is impossible to identify the producer, the supplier is liable, if has not communicated the producer’s identity to the damaged person.

 A product is defective when it is not safe as it should be, according to:

- the way it has been put on the market, its presentation, its features and its instructions;

- its use;

- when the product has been put on the market;

Furthermore, the product is defective if it does not offer the same safety features offered by other similar products ( if we exclude any improper use).

Eventually, a product cannot be considered defective if another more improved product has been released.

Types of damage

There are 3 types of damage that can be caused by a defective product:

- death or personal injury ( i.e. a soda bottle that explodes when the consumer opens it);

- damage or destruction of another thing ( i.e. a paint that damages the material it is put on), if it is foreseen for private use;

- damage to the product itself caused by a defect of one or more parts.

Exclusion of liability

The law foresees the cases where the producer’s liability is excluded:

- if he did not put the product on the market;

- if the defect did not exist at the distribution time;

- if the product was not made to be sold;

- if the scientific and technical knowledge of the period when the product has been released did not allow to know the existence of the defect;

- if the defect is due to the conformity of the product to imperative or binding rules.

 Furthermore, the producer or the supplier of a single component of the product cannot be liable if the defect is due to the whole project where the part have been incorporated or to the instructions given by the producer. In these cases the liability is of the final producer.

Consumers’ rights

A consumer damaged by a defective product has the right to compensation.  Any agreement limiting the producer’s liability is null. The compensation is not due when the damaged person knew the product was defective.

The compensation right prescribes in 3 years from the day the damaged person got to know the damage and the identity of the responsible. The compensation right dies out after 10 years from the release of the product.

 The burden of proof has to be met by the damaged consumer, who has to prove the causal relationship between the defective product and the damage. He also has to prove to the judge that he had correctly used the product.

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