How to claim for a defective Reyes gift in five steps | My rights section

How to claim for a defective Reyes gift in five steps | My rights section

Christmas is the season of the year in which more gifts are made and, therefore, more likely to suffer the consequences of a product in poor condition or defective. Mobile phones that explode or toys that cause some type of injury. Once the damage has occurred, what rights do we have?

Citizens are covered by consumer regulations, in particular by Royal Legislative Decree 1/2017, which approves the revised text of the General Law for the Defense of Consumers and Users. This law regulates at the state level the rights and guarantees that protect consumers, among which is the right to adequate information of the products acquired and the right to compensation in case of suffering damages, which can be claimed in a timely manner. of three years since the damage.

Warranty or damage

To channel the claim well, first, we must distinguish between non-conforming product and defective product. Thus, the malfunctions are covered by the product warranty, which the seller must respond to, and the security defects of the article must be claimed through civil liability to the manufacturer or importer.

In the event that the article is not compliant, it is damaged, for example, the consumer has the right to repair the product, its replacement, the price reduction or the termination of the contract. The seller responds for this reason within two years (one year if it is second hand). On the other hand, the existence of failures is presumed if they are manifested within the first six months of delivery. This is why it is so important to keep the ticket shopping. After these six months, it is the client who has to demonstrate the lack of conformity, which can be difficult and expensive. Another term to keep in mind: there are two months to tell the seller.

If the problem is that the product has caused damage by being defective (as in the case of the model of the Samsung mobile that exploded suddenly), the victim is entitled to the return of the money and also to compensation.

Defective or safe

The law clarifies what should be understood by defective product. Items that do not offer standard security or that would normally be expected, are qualified in this way, taking into account especially the use that is foreseeable and the moment of its putting into circulation.

A safe product is, on the contrary, and as established by Royal Decree 1801/2003, of general safety, that which under normal or reasonably foreseeable conditions of use does not present a risk or only minimal risks compatible with its use.


As a general rule is that the injured by one of these products must prove the defect (that the product was not safe), the damage, and the causality between them. This is not always easy. For example, if the use of a cream has caused a skin problem, we must show that it was caused by the cosmetic and not for another reason. The only thing that has not to prove is the manufacturer's fault.

Who to claim

The claim must be addressed to the manufacturer or importer of the product. In principle, the responsible party is the producer, and if this can not be identified, the supplier or importer also responds. But if it supplies the product knowing that it is defective it responds as if it were the manufacturer.

The problem is that, with the boom in trade online and imports from countries that do not have the same level of regulatory protection, it is sometimes difficult to determine the applicable legislation and the courts that hear the case.

Spain is party to the 1973 Convention on the law applicable to civil liability arising from defective products, which establishes that it will be the country where the damage occurred, provided that it is the residence of the victim. The legislation of the country of residence of the manufacturer or importer, or that of the place of purchase of the product may also apply (unless the manufacturer proves that I can not reasonably foresee it being marketed there).


Both personal damages (including death and injury, including psychological) and material damages are compensable. The moral damages are outside the norm, these are governed by the Civil Code (article 1902).

The standard establishes limits to the amounts of compensation. Thus, it is pointed out that the overall civil responsibility of the producer for death and personal injuries caused by identical products that present the same defect will be limited to the amount of 63,106,270.96 euros. On the other hand, from the amount of compensation for material damages a deductible of 500 euros will be deducted.

If the damage has been caused by an incorrect use of the article by the victim, the compensation can be reduced or even disappear. A case that may be controversial is that of toys that are not suitable for certain ages. Should the manufacturer respond to the damage caused?

Justice gave the reason to parents who sued for the damage that a doll stroller caused his daughter of a year and a half, to stumble and stuck the end of one of the handles of the toy. The magistrates (enter here to the sentence) took into account in this case the danger of the toy, regardless of the age of the girl and the possible fault of the parents not to watch over the child.

Another issue to take into account is that the damages in the product or article itself are not compensable through the consumption regulations and will have to be claimed in accordance with civil or commercial legislation.

Alert Network

It is a system based on the rapid exchange of information between the administrations in charge of the control and surveillance of the market, on a product that may pose a risk to consumers.

The Consumer Product Alert Network is put into operation when an authority in charge of market control adopts a measure to limit the commercialization of a product. This information reaches the General Directorate of Consumption that evaluates it and decides if it is communicated to the Spanish Agency of Consumption, Food Safety and Nutrition (AECOSAN).

The product is specified on the sheet, the risks and the measures adopted are indicated, such as, for example, the refusal of its importation.


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