Unknown risks and civil liability in Spain : a study of Spanish law with some French/Italian comparative remarks Articles uri icon

publication date

  • August 2016

start page

  • 168

end page

  • 196

issue

  • 2

volume

  • 7

international standard serial number (ISSN)

  • 1868-9620

electronic international standard serial number (EISSN)

  • 1868-9620

abstract

  • Taking advantage of the French and Italian literature, this paper explores how the Spanish legal system deals with the problem of unknown risks. Therefore, fault and strict liability, adequate causation and development risks are the questions at stake. Among these questions and in some extent to the author's surprise, what has been occupying the attention of the legal writers in these three legal systems is the question of the development risks' role within the general rules of non-contractual liability. The context for this is the problem of how to understand the option between the European based regime of defective products and the said general rules of non-contractual liability. Underlying that many times some traditional legal writers and case law understood strict liability as liability based on a presumption of fault, the paper focusses on the special situation of the Spanish legal system. The Spanish situation is special because (a) there is no provision in the Civil Code that could be seen as a general clause of strict liability for things or for risky activities and (b) because the commonly shared understanding of every kind of strict liability regime as based in a presumption of fault may wrongly lead to the idea of applying the development risks defense to every kind of liability.

keywords

  • risks
    non contractual liability
    strict liability
    fault
    presumption of fault
    defective products
    causation in fact
    adequate causation
    development risks