The Harmonization of European Products Liability Law
FORDHAM INTERNATIONAL LAW JOURNAL [Vol.
Harmonization of European Products Liability Law
-
1983
Article 1
The
Liability Law
William
Boger
Copyright c 1983 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
The Harmonization of European Products
Liability Law
William Boger
In this Note, the history and reasons for proposing the Draft Directive are briefly discussed.
The existing products liability laws in France, the Federal Republic of Germany and the United
Kingdom are examined. The proposed Directive is analyzed in detail, and the effects of its
adoption on the existing national systems are evaluated. Finally, the various systems of law are applied
in a hypothetical product liability case.
William Boger*
INTRODUCTION
"Products liability" is liability for personal injury or property
damage caused by a product during use or consumption.' Under
modern concepts of products liability there are three theories an
injured party can assert against the producer or seller of a defective
product: negligence, breach of contract (breach of warranty) and
strict tort liability.2 The distinction between contract and tort can
be of great significance in determining possible defendants,
standing to sue, burden of proof, and measure of damages. In contrast to
other nations which have approached the products liability area
through contract law obligations, the United States has favored a
tort law approach 3 based on a duty not to injure the user of a
4
product.
* LL.M. candidate, Georgetown University Law Center; Legal intern at the
Commission of the European Economic Community; B.A. 1979, Ohio State University; J.D. 1982,
University of Toledo College of Law. The author would like to thank Ute Heckman and
Philip Bruno for their assistance in the preparation of this Article.
1. N. REICH, CONSUMER LEGISLATION IN THE E.C. COUNTRIES 93 (1980).
2. Orban, Products Liability:A ComparativeRestatement- ForeignNationalLaw and
the EEC Directive, 8 GA. J. INT'L & COMP. L. 342, 344-45 (1978).
3. Id. at 345.
4. Id. " 'Strict liability' in product cases basically means that negligence on the part of
the seller of a defective product need not be proved by the injured plaintiff." Orban, supra
note 2, at 345. "Two . . . theories have been used in the United States . . . to determine
liability: warranty (contract) and tort." Id. In an action based on warranty, the plaintiff
must show that the warranty existed, that it was breached, and that it was the proximate
cause of the injury. 1 R. HURSH & H. BAILEY, AMERICAN LAW OF PRODUCTS LIABILITY § 3.1, at
429 (2d ed. 1974). In contrast, other countries mandate that the plaintiff must be in privity of
contract with the seller, show that the product was not of "merchantable quality" or was
defective, and prove that it caused the injury. See, e.g., Orban, supra note 2, at 345
(discussion of United States and West German contract actions). " 'Strict tort liability' . . .
means that the claimant must prove. . . product was in a defective condition when it left the
seller's control and . . . the defect caused the plaintiff's injury while . . . being used for the
purpose intended." Id. In the United States, the liability is strict but not absolute in nature.
The mere occurence of injury will not always impose liability upon the seller of the product.
RESTATEMENT (SECOND) OF TORTS § 402A (1965). This type of strict liability is not liability
without fault, rather it relieves the plaintiff of the burden of proving that the seller of the
product was negligent. Id. This is not a procedural shifting of the burden of proof, as it is in
countries such as West Germany, but rather a principle of substantive law. See Orban, supra
note 2, at 345-46.
The United States has been the world leader in imposing
liability on manufacturers of defective products.5 Greater liability for
manufacturers is slowly developing abroad, notably by European
nations through national laws, and through uniform legislation
proposed by the European Economic Community" (Community or
EEC). The Community has proposed a Directive7 approximating
the various national products liability laws of the member states.,
The major emphasis of the proposed Directive is the imposition of
strict liability on producers and distributors of defective products."
In part I of this Article, the history and reasons for proposing
the Draft Directive are briefly discussed. The existing products
liability laws in France, the Federal Republic of Germany and the
United Kingdom are examined in part II. In part III, the proposed
Directive is analyzed in detail, and the effects of its adoption on the
existing national systems are evaluated. Finally, in part IV, the
various systems of law are applied in a hypothetical product
liability case.
I.
BACKGROUND
Several organizations have developed proposals in efforts to
coordinate European and international developments (...truncated)