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Country:

Spain

Court:

Provincial Audience of Burgos, Judgement of 9 February 1999, Sección 3, 71/1999

Topics:

Liability of the retailer where the manufacturer cannot be identified. A ladder proved defective as its legs gave way.

Articles:

Product Liability Act 22/94 (PLA) Articles 2, 4 (3), 15 and Final Provision 1.

Civil Code 1889, Articles 1101, 1104, 1124, 1258, 1484, 1902, 1903

Facts:

The plaintiff purchased a ladder in a hypermarket for the price of 5.950 pesetas (Euros 36) on 25 September 1997. The stair was covered by plastic and had a notice inside with explanations on its correct use and proper assembling. It also had the social denomination of the manufacturer.

Whereupon, the plaintiff proceeded to unpack the box and used it in the hairdresser saloon of his wife. As coming up the steps the plaintiff fell out the ladder as the legs thereof gave way. As a consequence, the claimant resulted injured for 46 days. The plaintiff appealed to the Provincial Audience and claimed damages for the value of 327.950 pesetas (Euros 5000).

Decision:

The Court addressed different issues the first being the overlap between different Acts. The claimants brought actions against the seller on grounds of Article 27 (1) (c) of the Consumer Protection Act which states that " In the case of packed products he who's name appears on the label shall be responsible" Yet, the Court made it clear that the First Final Provision of the mentioned Act provides that Articles 25-28 of the above Act will not be applicable in case of defective products described in Article 2 of PLA. As a consequence the Court upheld the decision of the lower court which excluded the retailer of any liability.

Yet, the Court reminded that in these cases Article 4 (3) of the PLA is to be applied since it states that "Where the manufacturer cannot be identified the retailer or provider will be deemed like the former unless provides the injured with the identity of the manufacturer in less than 3 months".

The Court upheld the decision of the First Instance court whereby the retailer was responsable on grounds of Article 1902 of the Civil Code and not of Article 4 (3) of the Product Liability Act. Article 1902 of the Civil Code states "He who negligently harms another by action or omission shall be liable in damages". Although the appellant rised the application of contractual liability articles the Court applied those for non contractual liability. The Court held that there is unity of civil liability concept and therefore it may apply Article 1902. This doctrine has been confirmed by the Supreme Tribunal.

Comments:

The Tribunal tackles the overlap between different sections of the Spanish civil code and the Product Liability Act. Moreover, it confirms that product liability might be judged by means of contractual liability (Civil Code) and not by those of consumer protection.

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