Product Liability 2009 - Arnold & Porter LLP

Chapter 9
Argentina
Marval, O’Farrell & Mairal
1 Liability Systems
1.1 What systems of product liability are available (i.e. liability
in respect of damage to persons or property resulting from
the supply of products found to be defective or faulty)? Is
liability fault based, or strict, or both? Does contractual
liability play any role? Can liability be imposed for breach
of statutory obligations e.g. consumer fraud statutes?
Product liability is governed by the general regime for damages of
Argentina, which has its legal source in the Civil Code and by the
Consumer Protection Law No. 24,240.
The General regime:
Liability may be: (i) contractual; or (ii) non contractual.
(i) Contractual liability
The liability of the seller is based on the contract entered into with
the purchaser. The seller undertakes a safety obligation which
consists in a guarantee that the product involved will not harm the
purchaser due to defects which could turn it dangerous. This safety
obligation is deemed implicit in every purchase agreement, even if
it is not expressly referred to in the contract.
As noted, the seller is deemed to undertake an outcome obligation
towards the purchaser, because the product involved in the contract
is aimed to satisfy a given purpose.
The seller is also liable for hidden defects existing at the time of the
purchase.
(ii) Non contractual liability
Product liability may also arise when no contract exists between the
plaintiff and the manufacturer because there is an obligation not to
harm another person and to indemnify whenever such harm is done.
Additionally, such obligations also arise from the defects of the
product or from the risk of introducing a defective product into the
market. Accordingly, when the damage has been caused by a fault
or risk inherent to the product the manufacturer will be strictly
liable.
The Consumer Protection Law (“CPL”):
Product liability was originally exclusively governed by the Civil
Code. However, in the nineties, an increasing idea of protection of
consumer rights arose. As a result, our Congress passed the CPL
which provides further protection when consumers are involved in
a consumer contract or relationship.
Consumers are individuals or companies that acquire or use goods
or services as end-users, for free or not, and for their own benefit or
for the benefit of their family or social group. Any person who is
not part of a consumer relationship but acquires or uses products as
ICLG TO: PRODUCT LIABILITY 2009
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Leandro M. Castelli
Alberto D. Q. Molinario
a consequence of a consumer relationship, will also be considered
to be a consumer.
The CPL sets forth the strict, joint and several liability of the
producer, manufacturer, distributor, supplier, retailer and/or anyone
using its brand or trademark on the product or service, for damages
arising from the risk or defect of products or services.
The CPL also includes the right to initiate collective proceedings
(class actions) through consumer associations and specific
proceedings aimed at solving disputes which affect consumers.
The Commerce and Industry Secretary (an agency of the Ministry
of Economy) enforces the CPL by reviewing adhesion contracts,
mediating disputes and imposing penalties in the event of
violations.
1.2 Does the state operate any schemes of compensation for
particular products?
No, the state does not operate any schemes of compensation for
particular products.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
If the affected person is a consumer, the CPL establishes that all the
members of the marketing line of a risky or defective product are
strictly, jointly and severally liable for the damages caused to the
consumers. In this marketing line, the CPL expressly names: the
producer; the manufacturer; the importer; the distributor; the
supplier; the seller; and the one who put its trademark on the
product.
The members of the marketing line will only excuse their liability by
proving that the harm was caused by a cause alien to them.
If the affected person is not a consumer, the general rules of the Civil
Code will apply. There will be contractual liability of the seller,
which will be strict, and tort liability of any of the other persons who
might have caused the damage, which may also be strict.
1.4 In what circumstances is there an obligation to recall
products, and in what way may a claim for failure to recall
be brought?
There is not a general obligation to recall products. If suppliers
become aware of a defect, they must inform immediately to the
administrative authority and to consumers. The notification to
consumers must be made through advertising.
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