A defective product injured you: who is the one you sue
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
What is claimed here is not a replacement for the appliance, but the harm the appliance has caused. The manufacturer and the importer answer, jointly and severally, and clauses limiting their liability are of no effect against you. The action is time barred three years after the harm, and the rights lapse ten years after the product was put into circulation.
You bought an air fryer from a well known brand. Five months later, while it was running on the worktop, the casing gives way and boiling oil reaches your nine year old daughter, who spends two nights in hospital and is left with a graft on her forearm. The kitchen is left with a burnt unit and a worktop that has to be replaced. The shop offers you another identical fryer and talks about the two year guarantee. Nobody mentions the dressings, the trips to hospital or the days you could not work.
The case, in five lines
- What is brought
- A civil liability action for damage caused by defective products, brought against the producer, to obtain compensation for the personal injury and property damage suffered.
- Before which court
- The Civil section of the Tribunal de Instancia (the first-instance court). Claims not exceeding fifteen thousand euros are decided in the juicio verbal under Article 250.2 of the Ley de Enjuiciamiento Civil (the Spanish civil litigation statute).
- Deadline
- Three years from the date the injured person suffered the harm, provided the person liable is known, under Article 143. And an absolute cut off: the rights lapse ten years after that particular product was put into circulation, unless court proceedings had already been started.
- Who can bring it
- Any injured person, whether or not they bought the product: the user, a relative, a guest or a third party reached by the defect. Claims for minors are brought by their legal representatives.
- Financial risk
- If the defect or the causal link is not established, the claim is dismissed and there may be an order for costs. In addition, a five hundred euro excess is deducted from property damage, and the expert report is paid up front.
This is not the guarantee, it is the harm the product did
Article 128 of the consolidated Act opens the book with a broad rule: any injured person is entitled to compensation for the damage or loss caused by goods or services. And it adds that the actions recognised in that book do not affect other rights the injured person may have, including non material harm, under contractual liability, lack of conformity or non contractual liability. These are routes that add up, not routes that exclude one another.
Article 129 marks out what is covered: personal injury, including death, and property damage, provided the property is objectively intended for private use or consumption and has been used principally as such by the injured person. Your daughter's burn and the destroyed kitchen unit fall squarely within it; a damaged machine used professionally would follow a different route.
There is one boundary worth being clear about from the outset. Article 142 provides that property damage to the defective product itself is not recoverable under this chapter, and refers it to the civil and commercial legislation. The fryer itself is claimed by another route; what this book repairs is what the fryer burnt.
The manufacturer or the importer answers, not the shop
Article 135 lays down the principle: producers are liable for damage caused by defects in the products they respectively manufacture or import. And Article 138 sets out who counts as a producer for these purposes: the manufacturer or importer into the European Union of a finished product, of any component incorporated into a finished product or of a raw material. The whole chain is within reach of the claim.
Where the producer cannot be identified, the same article makes the supplier liable, unless within three months it tells the injured person the identity of the producer or of whoever supplied the product to it. The same rule applies to an imported product where the importer's name does not appear, even if the manufacturer's does. That is why the first letter also goes to the shop, with that question and that time limit.
Article 132 completes the picture: those liable for the same damage are jointly and severally liable to the injured parties, and whoever has paid may seek contribution from the others according to their share. For you that means you do not have to work out who failed inside the manufacturing chain: it is enough to sue the party who answers and let them apportion liability among themselves afterwards.
Defective means the product does not give expected safety
Article 137 does not define the defect by malfunction but by safety. A product is defective where it does not offer the safety that could legitimately be expected, taking account of all the circumstances and, in particular, its presentation, its reasonably foreseeable use and the moment it was put into circulation. The question is not whether it worked well, but whether it was safe for what anyone would do with it.
The same article adds a very useful evidential rule: in any event, a product is defective if it does not offer the safety normally offered by other items in the same series. Where other incidents with the same model are documented, or where an identical unit withstands what yours did not, the comparison between units does much of the expert work by itself.
And it closes one door to the defence: a product may not be regarded as defective merely because a more improved version is later put into circulation. That the manufacturer redesigned the model is not enough to make it liable, but neither does it protect it: what is judged is the safety your item offered when it went on the market.
You prove three things, and fault is not one of them
Article 139 allocates the burden in a single sentence: the injured person seeking compensation must prove the defect, the damage and the causal link between the two. Nothing more. There is no need to show negligence by the manufacturer, a failure in its quality control, or that it knew of the risk. That is the essential difference from an ordinary damages claim.
On the other side, Article 140 sets out an exhaustive list of the producer's escapes, all of which it must prove: that it had not put the product into circulation, that the defect may be presumed not to have existed at that moment, that it was not made for economic purposes, that the defect was due to mandatory rules, or that the state of scientific and technical knowledge did not allow it to be detected. That last one cannot be invoked for medicines or foodstuffs.
Two qualifications remain that are always anticipated. Article 145 allows liability to be reduced or removed where the damage was caused jointly by the defect and by the fault of the injured person or of someone they are civilly answerable for. By contrast, Article 133 prevents any reduction where the damage was caused together with a third party's intervention, without prejudice to the liable party later claiming against that third party.
Three years from the harm and ten from circulation
Article 143 provides that the action for compensation is time barred after three years, counted from the date the injured person suffered the harm, whether from the product's defect or from the damage that defect caused, provided the person liable for that harm is known. That last clause matters: while there is nobody identified to claim against, time cannot start running against you.
The same article adds that the action of whoever has paid the compensation against the other liable parties is time barred one year from the day of payment, and that interruption of the limitation period is governed by the Civil Code. In other words, a written and evidenced claim to the producer reopens the full period, and that is why that letter goes out before anything else.
Above that runs a cut off that letters do not interrupt. Article 144 establishes that the rights recognised to the injured person lapse ten years after the date the particular product causing the damage was put into circulation, unless court proceedings were started during that period. With an older product, the date of manufacture is checked before anything else.
What is recovered: excess, caps and clauses that fail
Article 141 introduces two rules on amounts. A five hundred euro excess is deducted from compensation for property damage, so purely material claims of small value make little sense by this route. And the producer's overall civil liability for death and personal injury caused by identical products with the same defect is capped at 63,106,270.96 euros.
Personal injury carries no excess, and that is where these matters are won. Alongside it, what Article 128 expressly preserves through other routes is claimed as well, including non material harm arising from contractual or non contractual liability, so the claim usually brings both sources together in a single document.
Finally, it is worth knowing that Article 130 declares clauses excluding or limiting the liability set out in this book to be of no effect against the injured person. No instruction manual, no condition of sale and no warning label can cut back what the law recognises. And Article 134 recognises compensation for the time running from the judicial declaration of liability until actual payment.
How we run the case, step by step
- 1
Keeping the product and documenting the harm
The item that caused the harm is not thrown away, not repaired and not returned to the shop. It is kept with its packaging, batch number and manual, together with the medical reports and photographs of the scene and the injuries.
- 2
Identifying the producer and putting the supplier on notice
We write to the shop asking it to identify the manufacturer or importer, warning of the three month period of Article 138. If it does not, it answers itself as though it were the producer.
- 3
Expert report on the defect and the causal link
An expert examines the item and determines what failed, whether other units in the series offer greater safety and how the harm occurred. It is the evidence supporting the three elements of Article 139.
- 4
Valuing the injuries and the property damage
We quantify the sequelae, the days of recovery, medical and travel costs, lost income and the property destroyed, bearing in mind the excess deducted from the material part.
- 5
Demand to the producer and prior negotiation
An evidenced letter is sent that interrupts the three year limitation period and serves as prior negotiating activity, with the full quantification and the expert report attached.
- 6
Claim before the Civil section
The manufacturer and the importer are sued jointly and severally, and the supplier where appropriate, claiming personal injury with no excess and property damage with it, plus interest and costs.
The evidence that decides the case
- The very item that caused the harm, unrepaired and not returned, with its serial or batch number and its packaging.
- The expert report identifying the defect and explaining how it led to the harm, comparing it with other items in the same series.
- The emergency admission record, the discharge report and the subsequent medical follow up, with the sequelae and days of recovery.
- Photographs of the scene taken before anything was cleaned or repaired, and of the injuries at their different stages.
- The purchase invoice and the instruction manual, which show how the product was presented and its foreseeable use.
- Alerts, recalls or documented incidents involving the same model published by the consumer authorities.
What closes the door
- Handing the product to the shop or the service centre to be exchanged or repaired. With the item goes the evidence of the defect, and the matter is left with no basis for expert evidence.
- Accepting a replacement appliance and signing acceptance, believing it does not affect the injury claim. That document is later relied on as closing the matter.
- Claiming only against the seller under the guarantee and letting the three years of Article 143 run without ever addressing the manufacturer or importer.
- Not checking the date the product was put into circulation. After ten years the rights lapse, and a letter no longer prevents it: court proceedings are needed.
- Limiting the claim to the value of the product and of what was burnt, forgetting the injuries, the days off work and the medical costs, which is what this regime repairs with no excess.
The law that applies
- Art. 135 TRLGDCU. Producers are liable for the damage caused by defects in the products they respectively manufacture or import. It is the general principle of this regime, and it does not require fault on the producer's part. BOE-A-2007-20555
- Art. 137 TRLGDCU. A product is defective where it does not offer the safety that could legitimately be expected, taking account of all the circumstances and especially its presentation, its reasonably foreseeable use and the moment it was put into circulation. In any event it is defective if it does not offer the safety normally offered by other items in the same series. It is not defective merely because a more improved one is later put into circulation. BOE-A-2007-20555
- Art. 138 TRLGDCU. A producer is the manufacturer or importer into the European Union of a finished product, of any component incorporated into it or of a raw material. If the producer cannot be identified, the supplier is treated as such, unless within three months it tells the injured person the identity of the producer or of whoever supplied the product to it. The same rule applies to an imported product with no importer's name, even where the manufacturer's appears. BOE-A-2007-20555
- Art. 139 TRLGDCU. The injured person seeking compensation for the damage caused must prove the defect, the damage and the causal link between the two. No proof of the producer's fault or negligence is required. BOE-A-2007-20555
- Art. 143 TRLGDCU. The action for compensation is time barred three years from the date the injured person suffered the harm, whether from the product's defect or from the damage that defect caused, provided the person liable is known. The action of whoever has paid the compensation against the other liable parties is time barred one year from payment. Interruption of the limitation period is governed by the Civil Code. BOE-A-2007-20555
- Art. 144 TRLGDCU. The rights recognised to the injured person lapse ten years after the date the particular product causing the damage was put into circulation, unless during that period the corresponding court proceedings were started. BOE-A-2007-20555
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
I did not buy the product. Can I still claim?
Yes. Article 128 recognises the right to compensation of any person injured by damage caused by goods or services, without requiring them to be the buyer. This regime does not arise from the contract of sale but from the harm, so the user, a relative, a guest or a passer by may claim. Claims for minors are brought by their legal representatives.
The shop offers to replace it. Does that close my claim?
Replacement answers to the product's lack of conformity, which is a different matter. Article 128 makes clear that the actions in this book do not affect other rights of the injured person, including those arising from contractual or non contractual liability. The practical problem is twofold: handing over the appliance loses the evidence of the defect, and the document signed may later be presented as closing the matter.
What if nobody knows who made the product?
Article 138 solves it. If the producer cannot be identified, the supplier is treated as the producer, unless within three months it tells the injured person the identity of the producer or of whoever supplied the product to it. The same rule applies where the product is imported and the importer's name does not appear. That is why the demand to the seller goes out as early as possible and in writing.
The manual warned of the risk. Does that leave me without a case?
Not by itself. The warning is part of the product's presentation, which Article 137 requires to be weighed alongside reasonably foreseeable use when measuring expected safety. And Article 130 declares clauses excluding or limiting liability to be of no effect against the injured person. Article 145 is a different matter: it allows compensation to be reduced where the harm was also due to the injured person's own fault.
The harm was caused by a service, not a product. Does that change things?
It changes the article that applies, not whether you have a case. Article 147 makes service providers liable for the damage caused, unless they prove they met the regulatory requirements and the care the nature of the service demands. And Article 148 subjects to a stricter regime, among others, healthcare services, the repair of household appliances, lifts and vehicles, and gas and electricity services.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.