SOURCES OF LAW AND THEIR EVOLUTION

REGULATIONS FOR PRODUCT LIABILITY THAT EXISTED PRIOR TO THE IMPLEMENTATION OF DIRECTIVE 85/374/EEC

When Directive 85/374/EEC was adopted many legal systems had already implemented a specific regime for product liability. In the Italian system, in the absence of specific legislation, scholars and courts have attempted to overcome the gap by resorting to contractual or tort liability and in particular that of the seller for damages resulting from defects (art 1494 of the Civil Code (CC)). These rules soon proved insufficient to ensure full and effective protection: liability for defects can only be enforced against the assignor within the short period of limitation and forfeiture referred to in art 1495 CC, and can be countered by the seller proving the absence of fault. In fact, the seller can easily claim to have in good faith ignored the defects of packaged goods sold by the manufacturer, meaning that the manufacturer is therefore the only person required to ensure the quality and safety of products put on the market.

The application of liability for defects in the sale contract excluded the possibility of a direct action against both the manufacturer and the first seller. It also prevented a claim by a third party who had not been involved in the negotiation of the contract.

Some authors have tried to solve the problem by configuring the liability of the manufacturer as a case of pre-contractual liability, based on the obligation to protect towards any individual intended to come into contact with the product once it has entered the production chain.

In a second step, scholars and judges tried to expand the effectiveness of the compensation for damages caused by a defective product, assigning liability for the harm caused directly to the producer (or, in general, to those involved in the production chain other than the final seller). In the absence of specific legislation that is able to provide the level of protection required in the case of damage caused by a defective product, courts and scholars have tried to shape the rules of civil liability in order to better protect consumers’ needs.