Consagración del market share liability en el régimen de responsabilidad por productos defectuosos en Colombia

Abstract

This paper is oriented to the study of the legal doctrine of Market Share Liability, in Spanish known as “responsabilidad por cuota de mercado”, provided for in the Anglo-Saxon law. With the purpose of evaluating the possibility and convenience of enshrining it in the liability regime for defective products established in the Colombian legal system. Thus, the origin, assumptions, essential elements and operation of both liability systems established both in the United States and in Colombia will be examined, either through the formal source of judicial precedent, as in the case of "Sindell v. Abbott Laboratories"; or through the law, i.e. Law 1480 of 2011, by means of which the Consumer Statute is issued. Having said the above, it is necessary to mention that at first sight both Market Share Liability and product liability are oriented to guarantee a comprehensive repair to the victims who, as consumers, are harmed in their lives, health, integrity, even in material damages that diminish their patrimony, as a consequence of a defective product, unsafe due to its deficient design, elaboration, construction, packaging, information or presentation. However, as will be seen, these two types of liability are considered relatively new disciplines, despite the fact that for more than a century they have been structured on the basis of the needs and problems that arise and that are increasing, as in the present day, when there is a massive and unbridled consumer society.