Remarks on limitation of producer/manufacturer’s liability in relation to the Machinery Directive
It must be said that the machinery directive is mandatory, therefore it cannot be waived in any way.
Instead, one can interfere with certain generic expressions that the regulation uses.
We would like to point out that the short notes below do not cover criminal aspects, labour law nor design, but purely civil/contractual aspects and certification.
The first and most important mechanism to limit the responsibility of the manufacturer is to make the information, warnings and instructions for use clear and explicit.
In fact, the Regulation on information, which replaces the one mentioned in Directive 98/37/EC by the term alert, acquires a substantial importance because it identifies the indications which, in various respects, must accompany the machine and which, in every respect, constitute safety indications.
These operating instructions, as defined in the Machinery Directive, restrict the manufacturer’s liability and reduce the risk to the user,optimizing two fundamental aspects for the safety of individuals and the continuous improvement of products.
The second mechanism of limitation of the Manufacturer’s liability calls into question the imposition of the Penal Clause which, as it indicates l’art. 1382. c.c.: is the clause, whereby it is agreed that, in the event of default or delay in performance, one of the contractors is obliged to a certain performance, has the effect of limiting the compensation to the promised performance, if no further indemnity is agreed.
The effect of such a properly calibrated clause, as the rule states, is to limit the amount of damages.
The third mechanism to limitat the Manufacturer’s liability is to prepare, in the event of problems, an objective and articulated procedure to ensure the occurrence and possible damage, implying a third party super partes already mentioned in the contract.
Avv. Marco Tupponi
Studio Associato Tupponi De Marinis Russo & Partners
for Advolo S.r.l.