Country:

Italy

Court:

Cass. civ. 25-5-1964 n. 1270, Foro it., 1965, I, 2098.

Topics:

Manufacturer's liability for defective product

Articles:

Before the implementation of the directive

Facts:

The claimants ate some cookies produced by Saiwa which had allegedly gone off. Because of the defect they suffered food poisoning and, as a result, an economic loss due to the medical fees. They sued the manufacturer and the seller claiming compensation, the first one under the general tort law and the second one under the sale contract law. The manufacturer remarked that the prerequisites of the liability are: damage causation and fault. Then, he objected that the claimant lacked to prove his fault. The seller objected that he could not known the defect because the product was close with a wrapping. Therefore he can not be liable under the sale contract law.

The plaintiff proved the damage by medical expertise. The causation was considered proven by the fact that the producer offered to change the defective product with another one when Mr. and Mrs. Schettini wrote him a letter complaining about the injury. But, as the defendant objected, the plaintiff was unable to prove the manufacturer's fault.

Legal questions:

At the time of the decision the Italian legal system did not have any legal provision on product liability. In order to make the manufacturer liable under the general tort law the claimant has to prove his fault, which is very difficult. Italian courts are not allowed to add new strict liability hypothesis to those described by the legislator because these are exceptions to the general principle of fault liability and, as exceptions, they are in numerus clausus. So, the question is how to make the manufacturer liable, without charging the claimant with the burden of proof of the fault and, at the same time, without creating a new hypothesis of strict liability besides those already provided by the law.

Decisions:

The Court asserted that this is not a strict liability case, because the manufacturer's fault is still relevant, but the fault does not have to be proven by the plaintiff as it is in re ipsa, i.e. in the fact that the product had a defect and that this defect caused an injury to the plaintiff. Therefore the manufacturer is held liable under the general tort law.

The Court approved seller's objection making him exempt from the contractual liability.

Comments:

In practice, the court created a sort of liability which is half way between strict liability and fault liability: fault is still necessary, but the burden of proof has been reversed in order to protect the claimant's position.