The Harmonization of European Products Liability Law

Fordham International Law Journal, Dec 1983

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.

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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)


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William Boger. The Harmonization of European Products Liability Law, Fordham International Law Journal, 1983, pp. 1, Volume 7, Issue 1,