ItalyCodice del consumo, Articles 114 to 127, Product Liability (Directive 85/374/EEC)
Decreto legislativo 6 settembre 2005, n. 206 (Codice del consumo), artt. 114-127
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
- The Codice defines a product as any movable good and adds electricity, and whether software supplied on its own is a movable good is not settled (Art. 115(1) and (2)).
- If you make a finished product or a component, or produce a raw material, you answer as producer for the damage a defect in it causes (Arts. 114(1) and 115(2-bis)).
- If you supply a product and the producer is not identified, or the importer into the Union is not identified, tell the injured person, within three months of a written request, who the producer or your own supplier is, or you answer as the producer (Art. 116(1), (2) and (6)).
- Offer the safety that can legitimately be expected, taking account of how the product was put into circulation, its presentation, instructions and warnings, its reasonably foreseeable use and when it was put into circulation (Art. 117(1)).
- Be able to prove that you did not put the product into circulation, that the defect probably did not exist then, that it results from compliance with a mandatory rule or binding measure, or that the state of scientific and technical knowledge then did not yet allow the product to be considered defective (Arts. 118(1)(a), (b), (d) and (e), 120(2)).
- Be ready to advance the cost of a court-appointed technical expert where it is plausible that a defect in the product caused the damage (Art. 120(3)).
- Do not rely on a contract term to exclude or limit your liability to the injured person in advance (Art. 124(1)).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- Is software supplied on its own a movable good (bene mobile) and so a product within Article 115(1) of the Codice del consumo?
What this law does
Article 114(1) of the Codice del consumo makes the producer liable for the damage caused by defects in its product. The Codice del consumo took in the rules of Presidential Decree 224 of , which had transposed Directive 85/374. Article 115(1) defines a product as any movable good (bene mobile), even if incorporated in another movable or immovable good. Article 115(2) treats electricity as a product.
Article 115(2-bis) defines the producer as the manufacturer of the finished product or of a component, the producer of the raw material and, for agricultural, livestock, fishing and hunting products, the farmer, breeder, fisher or hunter. The text of Article 115 now in force applies from .
Article 116(1) puts the supplier under the same liability when the producer is not identified and the supplier fails to name the producer, or its own supplier, within three months of the injured person's request. Article 116(6) applies that rule to an imported product when the importer into the Union is not identified, even if the producer is known. Article 117(1) makes a product defective when it does not offer the safety that can legitimately be expected, taking all circumstances into account.
Article 117(3) also makes a product defective if it does not offer the safety normally offered by the other units of the same series. Article 118(1)(a) and (b) exclude liability where the producer did not put the product into circulation or the defect did not exist when it did. Article 118(1)(d) excludes liability where the defect is due to the product's compliance with a mandatory legal rule or a binding measure.
Article 118(1)(e) excludes liability where the state of scientific and technical knowledge when the producer put the product into circulation did not yet allow the product to be considered defective. Article 118(1)(f) excludes the liability of the producer or supplier of a component or raw material where the defect is entirely due to the design of the product it was built into or to the instructions of that product's producer.
Article 120(1) puts on the injured person the burden of proving the defect, the damage and the causal link between defect and damage. Article 120(2) puts on the producer the burden of proving the facts that exclude liability, and for the exclusion in Article 118(1)(b) it is enough to show that the defect probably did not yet exist when the product was put into circulation.
Article 120(3) lets the court order the producer to advance the cost of the technical expert opinion where it is plausible that a defect in the product caused the damage. Article 121(1) makes every person responsible for the same damage liable for the whole of it. Article 122(2) bars compensation where the injured person knew of the defect and the danger and still exposed itself to it voluntarily.
Article 123(1) covers death and personal injury, and the destruction or deterioration of a thing other than the defective product that is normally intended for private use or consumption and mainly used that way by the injured person. Article 123(2) makes damage to things compensable only in the amount that exceeds EUR 387. Article 124 voids any agreement that excludes or limits in advance the liability towards the injured person.
Article 125(1) sets a limitation period of three years from the day the injured person knew, or should have known, of the damage, the defect and the identity of the person responsible. Article 126(1) extinguishes the right to compensation ten years after the producer or the importer into the Union put the product into circulation. Article 127(1) leaves untouched the rights that other laws give the injured person.
Article 127(3) keeps the title from applying to products put into circulation before . The Government's explanatory report on the draft implementing decree says that the notion of product in the 1985 directive, centred on movable goods, left uncertain whether software, integrated digital services and defects arising from updates are covered.
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.