È possibile che in un contratto siano inserite clausole che limitino o escludano in tutto o in parte la responsabilità di una delle parti, anche in deroga alle norme del codice civile.


Tali clausole sono ammesse dall’ordinamento, che le ritiene valide ed efficaci, purché esse siano espressamente e specificatamente approvate per iscritto (art. 1341, comma 2, c.c.).


Tale specifica approvazione avviene con la cosiddetta “doppia firma”, vale a dire richiamando in calce al contratto tali clausole e sottoscrivendole separatamente.


Nel caso di danno da prodotto difettoso la tutela di ordine pubblico è riservata al consumatore, nei confronti del quale non varrebbe la clausola di limitazione o esclusione della responsabilità, anche se approvata specificatamente con la formalità della doppia firma.


Diverso è il rapporto tra produttore e fornitore/distributore, nel caso di danno subito dal cliente finale.


In questo caso è considerata valida la clausola che limita la responsabilità del produttore nei confronti del fornitore/distributore, in quanto esula dalla tutela di ordine pubblico del consumatore, bensì riguarda i rapporti tra imprese.


Rispetto a questo principio di generale validità, si segnalano due eccezioni:


nel caso in cui il prodotto difettoso provochi danni alla persona, si considera meritevole di tutela il diritto alla salute, come principio costituzionale (art. 32 Cost.) e dunque di ordine pubblico, così che l’esonero da responsabilità non dovrebbe valere nemmeno nei rapporti tra il produttore ed il fornitore/distributore;

allo stesso modo il produttore non può esonerarsi da responsabilità nel caso in cui il difetto sia causato da suo dolo o colpa grave (art. 1229 codice civile).


Ciò detto, il fornitore/distributore del prodotto può tuttavia tutelarsi nei confronti del cliente, qualora nel contratto con quest’ultimo sia espressamente indicata la provenienza del materiale fornito, indicando nominativo e sede del produttore.


Infatti, nell’evenienza di un’azione di risarcimento danni promossa dal cliente nei confronti sia del fornitore/distributore che del produttore, quest’ultimo non potrà opporre la clausola di limitazione di responsabilità nei confronti del danneggiato, e sarà dunque tenuto a risarcire interamente il danno derivante dalla difettosità del materiale.


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