PortugalDecreto-Lei n.º 383/89, Liability for Damage Caused by Defective Products (Directive 85/374/EEC)
Decreto-Lei n.º 383/89, de 6 de novembro
In force.
A product liability rule binding private bodies.
- Private right of action
- Yes
- Instrument type
- an act of a legislature
As of .
What it requires
- The Decree-Law treats a product as any movable thing, incorporated in another thing or not; it is not settled whether that reaches software supplied on its own (Art. 3(1); Civil Code, Arts. 202 and 205).
- If you manufacture a finished product, a component or a raw material, or present yourself as the producer by putting your name, trade mark or another distinguishing sign on a product, you answer without fault for damage its defects cause (Arts. 1 and 2(1)).
- If you import products into the Community in the course of your commercial activity for sale, hire, leasing or another form of distribution, you answer as the producer (Art. 2(2)(a)).
- If you supply a product whose Community producer or importer is not identified, tell the injured person in writing, within three months of written notice, who the producer, the importer or a preceding supplier is, or you answer as the producer (Art. 2(2)(b)).
- Offer the safety that can legitimately be expected, judged by all the circumstances, including how you present the product, the use that can reasonably be made of it and when it entered into circulation (Art. 4(1)).
- Be able to prove one of the exclusions: that you did not put the product into circulation, that the defect can reasonably be taken not to have existed when you did, that you did not make or distribute it for an economic purpose or in your professional activity, that the defect is due to conformity with mandatory public rules, that the state of scientific and technical knowledge then did not allow the defect to be detected, or, for a component, that the defect is attributable to the design of the product it was incorporated in or to its manufacturer's instructions (Art. 5).
- If several persons are responsible for the damage, each answers jointly, and the intervention of a third party that contributed to the damage does not reduce your liability (Arts. 6(1) and 7(2)).
- Do not rely on a contract term to exclude or limit your liability to the injured person: such a term is treated as unwritten (Art. 10).
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 thing (coisa móvel) under Article 3(1) of Decreto-Lei n.º 383/89, read with Articles 202(1) and 205(1) of the Civil Code, which define a thing as anything that can be the object of legal relations and treat as movable every thing that is not immovable?
What this law does
The Diário da República lists the Decree-Law as in force. Article 1 makes the producer liable, independently of fault, for damage caused by defects in the products it puts into circulation. Article 2(1) defines the producer as the manufacturer of the finished product, of a component or of a raw material, and anyone who presents itself as producer by putting its name, trade mark or another distinguishing sign on the product.
Article 2(2)(a) also treats as producer whoever, in the course of its commercial activity, imports products into the European Economic Community from outside it for sale, hire, leasing or another form of distribution. Article 2(2)(b) also treats as producer any supplier of a product whose Community producer or importer is not identified, unless within three months of written notice it tells the injured person in writing who the producer, the importer or a preceding supplier is.
Article 3(1) defines a product as any movable thing, even where incorporated in another movable or immovable thing. Article 202(1) of the Civil Code defines a thing as anything that can be the object of legal relations. Article 205(1) of the Civil Code treats as movable all things that are not immovable under Article 204.
Article 4(1) makes a product defective when it does not offer the safety that can legitimately be expected, taking all the circumstances into account, including its presentation, the use that can reasonably be made of it and the time it entered into circulation. Article 4(2) provides that a product is not defective merely because a more improved one is put into circulation afterwards. Article 5(a) frees the producer who proves that it did not put the product into circulation.
Article 5(b) frees the producer who proves that, in the circumstances, the defect can reasonably be taken not to have existed when the product entered into circulation. Article 5(c) frees the producer who proves that it did not make the product for sale or another form of distribution with an economic purpose, and did not produce or distribute it in the course of its professional activity.
Article 5(d) frees the producer who proves that the defect is due to the product's conformity with mandatory rules laid down by public authorities. Article 5(e) frees the producer who proves that the state of scientific and technical knowledge, when it put the product into circulation, did not allow the defect to be detected.
Article 5(f) frees the manufacturer of a component who proves that the defect is attributable to the design of the product in which it was incorporated or to the instructions given by that product's manufacturer. Article 6(1) makes several persons responsible for the same damage jointly liable. Article 7(1) lets the court reduce or exclude compensation where a culpable act of the injured person contributed to the damage.
Article 7(2) provides that, without prejudice to paragraphs 2 and 3 of Article 6, the producer's liability is not reduced where the intervention of a third party contributed to the damage. Article 8 makes compensable the damage resulting from death or personal injury and the damage to a thing other than the defective product, if the thing is normally intended for private use or consumption and the injured person used it mainly that way.
Article 9 makes damage to things compensable only to the extent that it exceeds EUR 500. Article 10 provides that liability to the injured person cannot be excluded or limited, and that stipulations to the contrary are treated as unwritten. Article 11 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 producer.
Article 12 extinguishes the right to compensation ten years after the producer put the damaging product into circulation, unless an action brought by the injured person is pending. Article 13 leaves liability under other legal provisions untouched. Article 14 excludes damage from nuclear accidents governed by international conventions in force for the Portuguese State. Article 15 excludes damage caused by products put into circulation before the Decree-Law entered into force.
Decreto-Lei n.º 131/2001 rewrote Articles 8 and 9 of the Decree-Law. The same Decree-Law of 2001 repealed paragraph 2 of Article 3 and paragraph 2 of Article 8. The preamble of the 1989 Decree-Law records that Portugal did not use the Directive's option to make producers liable for development risks.
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.