Unknown Risks and Civil Liability in Spain: A Study of Spanish Law with Some French/Italian Comparative Remarks

Abstract

Taking advantage of the French and Italian literature, this paper explores how the Spanish legal system deals with the problem of unknown risks. Questions relating to fault and strict liability, adequate causation and the defence of development risks are discussed. Amongst these questions, and to some extent to the author’s surprise, the attention of legal writers in these three legal systems is focused on the question of the role of the development risks defence within the general rules of non-contractual liability. The context for this discussion 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. Underscoring that some traditional legal writers and case law have understood strict liability as liability based on a presumption of fault, this paper focuses on the particular approach 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 held understanding that every kind of strict liability regime is based on a presumption of fault may wrongly lead to the idea of applying the development risks defence to every kind of liability.