10.2.3 Liability under the Consumers Act

10.2.3.1 Introduction

The Consumers Act provides a wide protection which is extended both to the pre-contractual phase of the relationship and the contract itself by the detailed regulation of the so called abusive or unfair clauses. In consumers matters the principle of freedom (or of the autonomy of the will), which is the cornerstone of the Spanish contract law, is severely undermined since not only the freedom of the seller but also of the buyer are seriously restricted. An example would be those clauses excluding or significantly limiting the seller's liability which are null and void. The protection is supplemented by a specific liability system for defective products and services regulated in Chapter VIII of the Act. However, since the DPL Act took effect this Chapter no longer applies to defective products put into circulation after the DPL Act took effect but just to defective services. Any reference hereinafter to defective products, therefore, relates to products which were put into circulation before the DPL took effect (i.e, 8 July 1994).

10.2.3.2 Action in contract, action in tort

The Consumers Act does not make reference (save indirectly in Article 29) to the contractual or non-contractual frame of the liability arising out of defective products or services. As the Consumers Act also brings a panoply of protective measures for consumers contracts, it is natural to assume that Chapter VIII on guarantees and liabilities applies to consumers contracts. Being the aim of the Act to indemnify any damage caused by defective products or services and defining consumers and users as those that purchase, use or enjoy them, it would be clear that the liability arising outside of the frame of a consumers contract would also be covered by the Consumers Act.

10.2.3.3 The dual liability system

Chapter VIII of the Consumers Act opens up with the statement that the consumers and users have the right to be indemnified for those proven damages that the consumption of goods or the use of products and services may cause them, save that such damages are due to their exclusive fault or of the persons for whom they must answer under the civil law (eg, dependents).

Some have seen in this statement the legal basis for strict liability but in my view this conclusion cannot be upheld in the context of Articles 25, 26, 27 and 28 of the Consumers Act.

The Supreme Court has confirmed(71) that the Consumers Act provides for a dual liability system: (i) the general system which recognises liability based on fault but reversing the burden of proof in such a way that the defendant must prove that he acted diligently or that fault rests on the injured person; and (ii) the special system which provides for strict liability for certain type of products and services but limited to the sum of 500 million pesetas (way below the 70 million ECU limit referred to in Article 16 of the Directive and the 10.5 bn. peseta limit under the DPL Act).

Pursuant to Article 28 of the Act, strict liability is imposed for defects arising out of the appropriate use of certain products and services that, due to their specific nature or according to the applicable technical regulations, are necessarily subject to the warranty of certain levels of purity, efficacy or safety, which are objectively determinable, and to technical, professional or systematic quality control until the time they reach the consumer and user in due conditions. Paragraph 2. of Article 28 lists, ad exemplum, food products, pharmaceutical products, cleaning and higienic products, health services, gas and electricity, means of transportation, motor vehicles, electrical appliances, lifts, toys and products for children.

Proof of the damage
Evidence of the damage is required under the general rules of the Consumers Act (Article 25). The general rules of evidence would apply. Presumptions may be used to prove that the harmful event was caused by the product/service in question so long, I understand, that the rules on presumptions are met. For presumptions to be admitted as evidence, the facts from which presumptions are to be deduced must be thoroughly proved (72). There must also be a direct and precise link between the fact proved and the fact to be deduced.

Defences for exclusion of liability
Contributory negligence (73), meaning the fault of the injured party who knew that the product/service was defective or misused it, may lead to the reduction and even removal of the producer's liability. Force majeure would also exclude liability if as a result of same the causation relation is interfered with or broken.

Clauses excluding/limiting liability
The Consumers Act prohibits any clauses leading to exclude or significantly limit the producer/supplier's liability(74). Such clauses would be void.

Case of several tort feasors
If more than one person participated in the production of the harmful event these shall be jointly and severally liable to the injured person (s) pursuant to the provisions of Article 27.2 of the Consumers Act who may sue all or any of them. The defendant (s) who paid the damages in full may file claims for contribution against those persons who are jointly and severally liable to the injured person and did not pay any portion of the damages.

The liable party
Pursuant to the provisions of Article 26 of the Consumers Act, in principle the manufacturer importer and supplier (the Act refers to those who "facilitate") of products or services shall answer to consumers and users for their actions or omissions which cause damage to them. Potential defendants are all those included in the whole chain from production to distribution (including wholesale and retail).

Case of several tort feasors
As said above the general system of liability of the Consumers Act provides for the joint and several liability of all those involved in the harmful event.

Limitation of claims
Since the Consumers Act, as opposed to the Directive and the DPL Act which provide for a three year limitation, does not make any reference to the limitation of actions, the general statute of limitations would apply to actions under the Consumers Act. As both claims in tort and claims in contract are feasible under the Consumers Act, it would be either one or fifteen years, respectively.

(71) Decision of 23 May 1991 - La Ley T. 1991-3, n.m. 11.819.
(72) Article 1,249 Civil Code.
(73) Article 25 of the Consumers Act.
(74) Articles 10.6 and 10.10 of the Consumers Act.

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'