SpainReal Decreto Legislativo 1/2007 (consumer protection code), Book III, Articles 128 to 146, Product Liability (Directive 85/374/EEC)
Real Decreto Legislativo 1/2007, de 16 de noviembre, Libro tercero, artículos 128 a 146
In force since .
A product liability rule binding public and private bodies.
- Private right of action
- Yes
- Instrument type
- an act of a legislature
As of .
What it requires
- Software supplied on its own may fall outside the definition of a product, which is any movable good together with gas and electricity, and the point is not settled (Art. 136).
- If you manufacture or import into the European Union a finished product, an element integrated in a finished product or a raw material, you answer for the damage a defect in it causes (Arts. 135 and 138(1)).
- Offer the safety that could legitimately be expected of the product, taking account of its presentation, its reasonably foreseeable use and the time you put it into circulation, and at least the safety your other units of the same series normally offer (Art. 137(1) and (2)).
- If the producer cannot be identified, you answer as producer when you supply the product, unless within three months you tell the injured person who the producer is or who supplied it to you (Art. 138(2)).
- Do not supply a product you know to be defective: a supplier that does so answers as if it were the producer (Art. 146).
- Be able to prove that you did not put the product into circulation, that the defect probably did not exist then, that it was not made for sale or distribution with an economic purpose or in the course of a professional or business activity, that the defect arose from compliance with mandatory rules, or that the state of scientific and technical knowledge then did not allow the defect to be discovered (Art. 140(1)).
- If you make medicines or food for human consumption, do not count on the state-of-knowledge defense (Art. 140(3)).
- Do not rely on a contract term to limit or exclude your liability to the injured person (Art. 130).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- Does the definition of a product in Article 136 of Real Decreto Legislativo 1/2007, any movable good together with gas and electricity, reach software supplied on its own?
What this law does
Article 135 makes producers liable for the damage the defects of the products they make or import cause. Article 136 defines a product as any movable good, even when attached to or incorporated in another movable or immovable good, together with gas and electricity. A 2023 article in Cuadernos de Derecho Transnacional says that authors are divided on the legal classification of software.
Article 137(1) treats a product as defective when it does not offer the safety that could legitimately be expected, taking account of its presentation, its reasonably foreseeable use and the time it was put into circulation. Article 137(2) treats a product as defective in any case if it does not offer the safety normally offered by the other units of the same series.
Article 138(1) makes the manufacturer or importer into the European Union of a finished product, of any element integrated in a finished product, or of a raw material a producer, in addition to the producer defined in Article 5. Article 138(2) treats the supplier as the producer where the producer cannot be identified, unless the supplier names the producer or its own supplier to the injured person within three months.
Article 146 makes a supplier liable as if it were the producer when it supplied the product knowing of the defect. Article 139 requires the injured person to prove the defect, the damage and the causal link between them.
Article 140(1) excuses the producer who proves that it did not put the product into circulation, that the defect probably did not exist when it did, that the product was not made for sale or any other form of distribution with an economic purpose and was not made, imported, supplied or distributed in the course of a professional or business activity, that the defect arose from compliance with mandatory rules, or that the state of scientific and technical knowledge when it put the product into circulation did not allow the defect to be discovered.
Article 140(3) denies the development-risk defense for medicines and for food and food products meant for human consumption. Article 129(1) covers personal damage, death included, and material damage only where it affects goods or services objectively intended for private use or consumption and used mainly by the injured person.
Article 141 deducts a franchise of EUR 500 from compensation for material damage and caps the producer's overall liability for death and personal injury caused by identical products with the same defect at EUR 63,106,270.96. Article 141(a) was modified by disposición final 17.2 of Ley 15/2015, in force from . Article 143(1) sets a limitation period of three years from the date the injured person suffered the harm, provided the person responsible is known.
Article 144 extinguishes the injured person's rights ten years after the specific product that caused the damage was put into circulation, unless judicial proceedings began within that period. Article 130 makes clauses that exclude or limit the civil liability under the Book ineffective against the injured person. Article 132 makes the persons responsible for the same damage jointly and severally liable to the injured persons.
Article 142 excludes compensation under the chapter for material damage to the defective product itself. Article 128 leaves intact the injured person's other rights to compensation for contractual or non-contractual liability. Article 147 separately makes providers of services liable for damage to consumers and users, unless they prove that they met the regulatory requirements and the care the nature of the service demands.
The preamble to the consolidated text says that Book III harmonizes the civil liability regime for defective products set out in Ley 22/1994. Ley 22/1994 gave effect in Spanish law to Directive 85/374/EEC. Real Decreto Legislativo 1/2007 repealed Ley 22/1994. The preamble also says that Ley 22/1994 does not apply to products put into circulation before .
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.