In Guatemala, the main issue relating to the production of evidence of damage suffered because of a defective product (on grounds other than breach of contract) is that a claimant need prove only that the victim sustained damage. As negligence - the main source of liability - is presumed, a defendant in a product liability action must either disprove the claimant's facts or show that damage occurred as a result of the victim's inexcusable negligence. Thus, the victim's behaviour and the manner in which the damage occurred will ultimately determine whether product liability exists. In the case of intrinsically hazardous products, the position is even more complicated.
The complexity surrounding damage in cases that involve intrinsically hazardous products is derived from the fact that the vendor has a legally presumed obligation to disclose non-apparent defects that are known to it.(1) The issue also arises where the manufacturer has been negligent in the manufacture of the defective products sold, thereby causing the victim to suffer damage. A manufacturer may also be deemed to have acted negligently where it fails appropriately to inform consumers of hazards that are intrinsic to a product being offered for sale.(2) Furthermore, where a court or other competent authority has determined that a product is hazardous or dangerous, the manufacturer, importer and distributor are jointly liable.(3)
In cases of non-contractual damage or tort, the general rule is that the tortfeasor must be at fault (ie, it must be negligent). Since negligence is presumed, it is open to the tortfeasor to offer proof to the contrary.(4) Therefore, a defendant in a product liability claim has two defences available.
First, it may seek to show that it was not at fault. Guatemalan law allows a defendant to prove absence of fault and thereby avoid liability, provided that the activities or the products involved in the litigation are not intrinsically hazardous or dangerous.(5)
Second, the defendant may escape liability if can show that the victim was inexcusably negligent.(6) This defence is available where the activities or products involved are not intrinsically hazardous or dangerous. However, in the case of intrinsically dangerous or hazardous products, a party may still show in its defence that the victim intentionally caused the damage.(7)
In general, there is no discovery rule in Guatemalan civil procedure. A party may request that another party produce documents in the course of proceedings, but it must provide the court with a reasonably accurate description of the requested documents. This is a considerable limitation, although it is mitigated by the right to ask the court to order the production of a counterparty's accounting books and records. There is limited access to pre-trial proceedings in which the production of evidence may be sought. Therefore, this kind of proceeding generally requires a reasonably accurate knowledge of the documents, records, books and files that a party wishes to have produced before the judge.
As a result, it is reasonable to state that under Guatemalan law, the victim's conduct and proof that damage occurred will ultimately determine whether product liability exists.
For further information on this topic please contact María Concepción Villeda by telephone (+502 222 368 68), fax (+502 236 625 40) or email ([email protected]).
Endnotes
(1) Sections 1559 and 1562 of the Civil Code.
(2) Section 39 of the Consumer Protection Act.
(4) Section 1648 of the Civil Code.