PRODOTTO DIFETTOSO

[Machine translation] The attribution to the manufacturer of liability for the damage caused by the defective product presupposes an exhaustive definition of what is meant by a defective product. And yet, no legal system has a suitable definition to circumscribe the variety of the phenomenon. The concept of defectivity has been made more complex by the alleged elimination of guilt from the constituent elements of producer responsibility. In doing so, in fact, the components of guilt (i.e. the predictability and avoidability of damage) have been implicitly transferred to the concept of defectivity and from here they govern the mechanisms for distributing risks between the parties. Defectivity is not a physical fact: it is a legal concept. It is not an autonomous concept: it relates to the product's functionality requirements on the one hand and security on the other; it is the pivot on which a precarious balance is built between a level of consumer protection appropriate to advanced industrial society and the need to encourage economic activity and technological innovation, avoiding burdening companies with risks that could prove excessive. In other words, the definition of defectivity expresses a political choice, which will vary with the alternation of the ideologies prevailing from time to time. American doctrine, which first tried to trace a logical thread in changing jurisprudential decisions, has been lost in increasingly subtle distinctions, in formulas enriched by exceptions, whose number has grown with each new case presented to the attention of the courts. The result of this work is an entire Restatement of the relevant case law, with more than one hundred pages dedicated to the concept of defect. European doctrine, in turn, discovers that the uniform legislation dictated by Directive n. 374/85/EEC is differently interpreted and applied by the various national judges, who follow their usual taxonomy, local needs and the aptitude of their own legal system, more or less sensitive to the prestige of other people's models. The work analyzes the Italian case law applying the European directive by comparing it with the decisions of other European and US national judges.