Helmut Koziol, Wien/Graz
I.
General remarks
Discussing ※product liability§ on a
comparative basis offers lawyers a wonderful opportunity to learn a great deal
about other legal systems, about differences in legal cultures and largely
diverging habitual ways of legal thinking. In so doing, it enables them to
understand each other better. The effect of this is that comparative lawyers
will also be in a position to recognise common bases of individual legal
systems as well as the lack of uniformity. They will be variously stimulated.
Inspired by alternative solutions and the discovery of new tools to solve
problems, their minds will become more open to different ideas and this in turn
will increase our understanding of fundamental ideas from various perspectives.
However, they will without doubt also
gain the experience that to reach these goals they have to overcome quite some
difficulties. First of all, it is obvious that there are language barriers as Codes,
Acts and court decisions are drafted in different languages and comparative
lawyers from different legal systems communicate in different mother tongues.
It is highly difficult to tackle this hurdle by nominating only one language and
translating all materials into it. Lawyers 每 unlike the scholars of nearly all
the other sciences 每 have to be aware of a more hidden and, therefore, even
more dangerous source of misunderstanding each other: law and language are
linked to one another in a special and very close manner; further, the
terminology used by lawyers is marked by the whole legal system. Therefore,
even private lawyers who use the same language, such as Germans and Austrians,
are exposed to the danger of misunderstanding each other: the words ※Sache§
(thing), ※Besitz§ (possession) or ※Rechtswidrigkeit§ (wrongfulness) and
※Verschulden§ (fault) have quite different meanings. Scholars who speak English
as a mother tongue can provide similar examples. Therefore, if lawyers want to
understand each other, they have to undergo the difficult and strenuous
procedure of always defining the concepts and terms.
However, it
must also be pointed out that besides these language problems quite a few
further dangers lurk when it comes to trying to understand or seeking to draw
inspiration from foreign legal systems; the risk one runs is all the greater,
the more different the legal systems are. When I talk about differences, I not
only refer to the differences in the part of private law which is primarily under
discussion, in our context in tort law, but also in the other parts of private
law. Just the discussion of product liability will show the inseparability of tort
law from contract law. Further I refer also to fundamental divergences in the overall
legal systems[1],
e.g. including the social security system, administrative law and criminal law.
Such broad angle of view is necessary because of the interplay with all these areas:
tort law and in particular product liability law is interrelated with nearly
all legal areas and therefore all of them may be of greatest influence.
I feel that
product liability is a very suitable area in which to gain experience of nearly
all the difficulties and learning how to overcome them, but on the other hand this
topic has the advantage that it is a notion well-known worldwide since some
decades and that the solutions in the individual legal systems display
similarities at least to some extent. However, the disadvantage of the topic is
an unbelievable flood of publications all over the world and an astonishing
variety of ideas; therefore, one is exposed to the danger of getting lost.[2]
Nevertheless,
in my view product liability is an excellent starter as it gives us the
opportunity to discuss fundamental issues including, in my opinion, not only basic
questions for the individual legal systems but also for the Asian, American and
European efforts towards harmonising the national legal systems or drafting
multinational codes. I think of such questions as: What are the reasons for
establishing an 每 at least to some extent 每 special kind of stricter liability?
What are the legal instruments for establishing such liability? Do the
provisions take into account the relationship between prerequisites for
liability and legal consequences? As far as tort law is concerned: do the
special rules fit into a consistent system of tort law or liability law? Do the
rules on product liability take regard of the fundamental principle of equal
treatment? All these questions are relevant in establishing a legal system
which complies with the idea of justice and can be called a legal order and must
not to be considered a legal disorder.
It may be
that such questions sound slightly strange to common law lawyers, who may point
out that their courts only have to decide single cases and not to design a
whole system. It may be true that courts and even scholars under common law do
not place special emphasis on considering the whole system and its consistency.
But looking at common law textbooks, one gets the impression that ultimately there
is nearly no difference to continental European text books and that even the
courts 每 although maybe in a more hidden fashion 每 do take regard of an overall
system. I think that they do so as it is unavoidable: if, e.g., English courts
have to consider whether a case has to be decided in accordance with a
precedent judgment although it is not identical in each and every detail, they
have to ask whether it is a similar case or not. In doing that they have to
investigate whether the decisive factors are the same and, therefore, they have
to design a more general rule on the basis of the preliminary decision and
examine whether this rule is applicable to the case at hand. Thus, in the end
they also have to apply more general rules in the individual case. The
difference between common law courts and courts under legal systems with codes,
which begin with the general rule, only seems to be that common law courts have
to take one step more. But starting with a precedent judgement on an individual
case, they may tend to overemphasise the importance of single judgements and
neglect the overall system. On the other hand, lawyers under a codified legal
system begin on a more general level and, therefore, tend to overestimate the
general rules of the overall system and to neglect the specific features of the
case at hand. Nevertheless, in substance they have to do the same.
II. The interplay of contract law and tort law
First of all,
the range of product liability problems teaches us that we can*t restrict our
look towards tort law but have to include at any rate contract law into our
research. That has been pointed out clearly by quite some scholars[3] and
this does not seem far fetched if the victim is the buyer who acquired the
defective product pursuant to a contract. Of course, as a rule the victim
concluded the contract with the distributor and not with the producer. But contract
law in the national legal systems nevertheless offers rather different instruments
of protection to the purchaser and some legal system have solved the problems even
solely on a contractual basis[4], some
partly; therefore, contract law determines varying needs of protection under
tort law.
To begin with
common law, on the basis of an implied warranty the seller is strictly liable
if the goods do not come up to the required standard. As Rogers underlines, the purpose of developing such warranty at
common law was probably to allow the buyer a remedy for the financial loss he
suffered in acquiring goods of inferior quality, that means for the difference
in value. But it has been accepted for many years that it also allows recovery
for consequential damage to other property and for personal injuries. Such
contractual strict liability means, as Rogers points out, that as far as the
purchaser is concerned his right of action in tort against the manufacturer,
dependent on proof of negligence, may be utilised only where the seller is
insolvent or cannot be sued because of a valid exemption clause. Because of the
privity rule, other persons than the purchaser, i.e. his family members,
donees, passers-by, have to claim under tort law, but most of them and also the
purchaser himself enjoy the producers strict liability provided by the Consumer
Protection Act 1987. Therefore, recourse to the common law liability based on
negligence is rarely necessary, eg in case of damage to property not intended
for private use or when the time limitation period for a claim under the Act
has expired[5].
The import of
the theory of implied warranty was more far-reaching in the USA[6] as
the courts and the Uniform Commercial Code developed exceptions to the privity
rule[7];
therefore the purchaser and even his household were allowed to claim the
manufacturer. Further, contractual limitations of the manufacturer*s
responsibility were ignored[8].
Of course, the main problems with strict liability under an implied-warranty
theory was recognised: the term itself implies a contractual liability with
privity and further contractual limitations. Therefore the manufacturer*s
strict liability was shifted to tort law[9]. Australian
Consumer Law goes even further in providing that producers of goods and
services are subject to an implied guarantee that the goods or services meet
certain quality standards and it is clear that a failure to meet some of these
standards is actionable not only by the consumer who purchases the goods or
services but also by &affected persons*; this includes persons who acquire
title to the goods through the consumer. On the other hand, the privity rule is
still respected in South Africa.
But solving
the problems of product liability by a contractual warranty seems to be
fascinating under many legal systems; France gives a wonderful example: Art
1641 Code civil provides that the seller is bound to warrant against
latent defects and according to Art 1645 the seller is liable 每 in addition to
restitution of the price 每 for all damage caused if he knew of the defect. This rule is of highest practical importance as
the courts created for consumer sales contracts the irrefutable presumption
that the professional has had knowledge of the latent defect, even if the
defect was undiscoverable. Thus the consumer has always a claim on damages
against the professional seller and thanks to an action directe also
against the manufacturer and any other link of the sales chain. Although an outside
observer may feel that it is rather astonishing and not very convincing to
solve a problem by an irrefutable presumption without any basis in reality, nevertheless,
we learn a lot about different ways of thinking and the surprising uses of
legal instruments which have to be taken into regard.
Last a short
glimpse on those legal systems, e.g. the German and Austrian, under which the distributor
of defective products would be rarely liable for the purchaser*s damage under
the general rules on contract law: if he is not at fault the purchaser can ask under
the law of warranty only for reduction of the price or rescission of sale[10]. Further,
because of the privity rule, the purchases will usually also not succeed with a
claim against the producer as he bears under tort law the burden of proving
fault and will as a rule fail; in addition, the rules on vicarious liability
under tort law are rather restrictive. Under these legal systems the special
rules on the producer*s strict liability for defective goods filled undoubtedly
a gap.
But I have to
point out that Austrian courts and scholars tried to supply the need of the
purchasers 每 not of innocent bystanders 每 already before the introduction of
special strict liability rules, but not by contract law but an instrument
between tort and contract[11]: because
of the purchaser*s special reliance in the careful production as well as
control by the manufacturer and because of the special contact between
purchaser and producer by a chain of contracts it is said that a special
relationship exists which establishes special duties of care as well as a shift
of burden of proof and an extensive vicarious liability similar to that in a
contractual relationship. Thus the purchaser at least enjoys a far reaching
liability regime similar to that under contract law. German lawyers rejected
such way out.
III. The fundamental questions under tort law
Now to the
fundamental questions we have to ask regarding product liability under tort law.
The starting point is 每 as underlined in the questionnaire 每 that in most legal
systems producers are subject to
special liability regimes which appear much stricter than the fault-based
liability regime that applies in general[12]:
producers are liable irrespective of fault for damage caused by defective
products they put into circulation. These
stricter rules on product liability originate from the USA[13],
but the concept spread rather quickly worldwide. It inspired, for example, the
European Union to design its Product
Liability Directive (Council Directive 85/374/EEC of 25 July 1985),
which is not only influential in the EU but has also provided the conceptual
basis for new laws elsewhere[14]; eg
also for the new Chinese Tort Law[15].
It seems highly interesting that in the USA 每 after encouraging the whole
world to make product liability more stringent 每 the development went in the
opposite direction, moving away from strict liability[16]. The
widespread tendency to provide for
strict product liability as well as the countermovement in the USA raise fundamental
questions.
1. Reasons
for introducing strict product liability
It appears that
worldwide 每 with the possible exception of France 每 there was a prevailing impression
of an urgent need to provide for the
stricter liability of producers who put defective products into circulation and, accordingly, the American
concept spread very quickly. But was there really such a need in all legal
systems and, if so, why did it arise? What gaps existed in the reasonable
protection of both buyers and third parties and what were and still are the
shortcomings of the general rules?
As to the need, there is one
fundamental question which I want to touch on because it illustrates the relevance
of taking into regard not only tort law and not only private law but the whole
legal system. In the area of personal injury, insufficiencies in tort law are
levelled out largely by the social security systems. This seems to be true for
all EU member states, at least for the German speaking countries[17]
as well as for the United
Kingdom[18], France[19]
and the Scandinavian countries[20],
in contrast to the much less exhaustive American social security system. The
fact that most legal systems provide for the
victim*s extensive compensation for losses caused by personal injuries via the
social security systems makes the provision of comprehensive compensation under
tort law less urgent in such countries[21].
Therefore, the popular argument that the highest ranking protected interest
deserves the most extensive protection by tort
law seems no longer to apply as another legal instrument already makes sure
of such protection. From the victim*s
perspective in this area, intensive protection under tort law is required
only as far as social security does not provide full compensation. Probably,
such loopholes do not concern primarily the most important interests of the
victim. Seen from the compensation perspective we, therefore, come to the
conclusion that the principle that ※the highest ranking interests deserve the
highest grade of protection under tort law§ is no longer as convincing as it
seems at first sight. But is the victim*s perspective really the only or at
least decisive aspect? Don*t we have to take also regard of the fundamental
ideas of attributing liability and, therefore, have to say that it is more
reasonable to establish the entrepreneur*s liability and to concede the social
insurer recourse to the producer than to shift the financial burden from the
tortfeasor to the social security system[22]? At
any rate, such discussion shows us that the interplay of tort law and social
security law is of high importance when designing tort law provisions. Further,
the question as to which reasons can justify such comparatively strict
producer*s liability, seems to gain even more importance.
2. The
justification for strict product liability
Therefore,
we must emphasise the question of how such strict liability fits into a
consistent overall liability system. The answer to
the question as to which criteria justify establishing liability is, of course,
also decisive in laying down the reasonable scope of product liability, in solving
questions of conceptual detail and in the interpretation of legislative provisions.
I would like
to illustrate some of the relevant aspects by the example of product liability in
the European Union[23];
I refer to the Directive 85/374/EEC. Due to this Directive, product liability is very strict, being
independent of any breach of duty of care and 每 apart from the development
risks and statutory ordinances 每 because of the lack of any grounds for
exemption from liability, in particular of force majeure.
The objective justification for such
strict liability for producers is by no means self-evident and neither does it
present itself from the genesis of the rules[24]. In fact, the Directive was neither
based on a well-thought out and recognised overall concept for producer-liability
nor on any theory-based, understandable justification of the legislators: in
the recitals to the directive, it very clearly states: ※Whereas liability
without fault should apply only to movables which have been industrially
produced.§ Thus, the non-fault based liability provided for by the Directive
for defective products was only intended to offer 每 as is also shown by the
prior academic discussions 每 the purchasers protection against the special
risks of ※anomalies§ associated with industrial mass production. This
could indeed be justified by the argument that in spite of all reasonable measures,
product defects can never be absolutely excluded when it comes to mass production
nor can inspection always prevent defective products from being placed on the
market, the problem of the so-called ※Ausreisser§ or ※runaways§. The wording of
the directive, however, drops the limitation to industrial products so that the
liability set out also applies to defective products of craftsmen, landlords,
farmers and artists. Moreover, the idea of the inevitable risk of anomalies in
the case of industrial mass production does not justify the liability for
damage deriving from defective design or insufficient instructions[25]. The lawmaker has never even
attempted to justify the extended application of strict liability and it seems
difficult to find any convincing arguments in favour of such broad and very
strict liability.
Most strict liability rules are
justified by the idea that the keeper of a dangerous thing or he who carries
out dangerous activity should not only enjoy the advantages but also bear the
risk. However, the producers* stringent liability can not be justified, or at
least not solely, by the notion of dangerousness: product
liability takes as its starting point the fact that the damage is brought about
by a defect of the product. As
the description of defectiveness shows, the crux is that the defectiveness
leads to a dangerousness which is not generally a common feature of suchlike
products; specifically, a product is defective only if the product does not
offer the safety that one is entitled to expect taking all the circumstances
into account. The dangerousness emanating from the defect can not, however, in general be classified
as very high since many products are not likely even in a defective state to
bring about extensive damage or to substantially increase the frequency of damage
occurring. Typical examples are bent paper clips or spoilt food, which can only
bring about harmless scratches or temporary nausea. Therefore, unlike the general, abstract dangerousness presented by
things or facilities, the specific dangerousness of defects required under the
product liability rules is not enough to justify a liability
completely regardless of any misconduct, ie a real and, due to the lack of any
possible defences, extremely strict liability based on dangerousness. A further
argument is, as recently highlighted by B.C. Steininger[26], that the general dangerousness
generated for example by the high speed of motor vehicles, serves the interest
of the keeper; dangerousness and usefulness are thus inter-related[27]. The specific dangerousness presented
in the individual case due to a defect is, on the other hand, usually not at
all beneficial in any way to the entrepreneur as the defectiveness runs
contrary to his interests. It must also be considered that when it comes to
product liability, different ideas are behind the affiliation to someone*s sphere than may otherwise be. In the
case of buildings, roads and vehicles, the defective things are imputed to
their keeper*s sphere; the keeper is the person whose interests are served by
the thing and who has the power to exercise influence on them[28]. Neither criterion applies to the
producer once he places the thing at issue on the market. He could only
exercise influence in advance on the production process and thus in this sense
towards the product being as free as possible from defects.
Also, the material ideas behind the often
heard[29] suggestions in favour of a more
stringent enterprise liability cannot on their own justify such strict
non-fault based product liability. Relevant for such enterprise liability is,
on the one hand, the principle that the advantages and risks should fall
to the same party and thus be concentrated in the enterprise. But this element
alone does not seem sufficient to establish strict liability and there is only
one additional factor which speaks in favour of tightening liability: the idea
that the victims of an enterprise are confronted on the opposing side with a complex
organisation and typically have considerable difficulties in proving the facts that are material
in relation to any carelessness that ensued within the company[30]. Specifically, the victim has no
insight into the organisation, the deployment of auxiliaries and technical
equipment, the maintenance of machines and control processes. However, this all
speaks in favour of a reversal of the burden of proof in this respect, but not
of strict liability, cf Art 4:202 of the Principles of European Tort Law. Therefore,
even if the idea of such enterprise liability should be accepted, it would on
its own not be enough to justify the very strict producers* liability.
Therefore, we have to ask whether the
extremely stringent liability for defective products could be justified at
least partly by the interplay of the already mentioned ideas with the generally
decisive criteria for enterprise liability, namely with the notion of the risk
community of entrepreneur and
buyers[31]: when
consumer goods are produced, economic factors dictate that the highest
technical safety and quality standards are not observed, but this does not mean
that the processes involved are wrongful. The lower production costs resulting
from the lowered safety standards lead to lower prices for the products but
also to an increased risk of damage. However, the idea is that the consumer who
is injured by a defective product is otherwise asked to bear the harm while the
other consumers are beneficiaries because they were able to purchase the goods
at lower prices precisely because of the lower safety requirements. If all
purchasers enjoy the advantage of the lower prices, the few purchasers who
suffer damage due to defects should not be left alone to bear the damage
sustained. Their harm should be compensated by the producer as he is in a position
to shift these costs via price changes on to all clients and thus all
beneficiaries[32]. This
means that all purchasers bear the disadvantages jointly as a kind of risk
community. In particular, the non-fault based product liability
law has the effect that the position of the entrepreneur is approximated with
that of an insurer, when seen from a functional perspective: the liability
risks generated by this legal area are taken into account by the entrepreneurs
in their price calculations, so that the clients may be understood as a risk
community, who from an economic perspective end up bearing the costs of the
provisions for liability risks on the part of the entrepreneur[33]. But this rationale does not justify the liability of the producer towards
external third parties; the idea only applies when the acquirer of
the goods suffers damage. Given the fact that the element of dangerousness due
to the simple existence of a threat posed by the defect in the product is not
present to the same degree as in other cases of strict liability, however, defences
(eg force majeure) should be admitted to a greater degree.
However, Michael Green[34] points out, that it seems rather
doubtful whether the idea of risk community can in fact justify producers*
strict liability: in case of personal injuries, victims of defective products who
have high earnings will suffer high losses and receive high compensation; those
who earn nearly nothing will receive nearly no compensation but have to pay the
same price for the products. As a result, the group of purchasers who earn less
have to support those who earn more. Such redistribution via product liability would
not seem to be very just or desirable. But I am not so sure that Green*s objections are justified: His
argumentation is convincing only if you solely take regard of one and the same
product; but usually rich persons buy products which are more expensive and I
assume that they therefore pay all i, , , n all, a higher contribution to the
entrepreneur*s ※liability funds§.
Therefore, I feel that it is 每 at least roughly 每 a justly designed risk
community.
In considering the different
approaches in the individual legal systems I think that one idea should be more
underlined, as it seems to be able to help to justify the producers* liability
in interplay with the already mentioned arguments: One may be sceptical about
the common law idea that the producers* liability is based on a warranty
because it ignores the privity rule. Nevertheless, the idea that the producer
declares explicitly or implicitly that his products comply with the reasonable
consumer*s safety expectations seems quite convincing; even if it can*t be
understood as a warranty in favour of the purchaser it is at least an information
for all potential buyers which aims to influence their decision[35]. On the other hand the buyer will
and often has to rely on such declarations as he will be not able to inform
himself[36]. These are exactly the prerequisites
in establishing the so called Vertrauenshaftung
(liability based on principles of reliance) which has been designed above
all by C.W. Canaris[37] and enjoys widespread acceptance at
least in the German speaking countries. This theory is insofar of importance as
because of the special contact between the declaring and the relying party far
reaching duties of care are established and vicarious liability is as strict as
under contract law. Of course, I have to confess that such liability based on
reliance is nevertheless a fault based liability. But it seems worth of closer
reflection whether this idea could support the other arguments in establishing
producers* strict or at least stricter liability.
Although it seems that certainly not
one reason alone 每 I am really not a believer in mono causal theories 每 but a
bundle of reasons is able to justify the producers strict liability at least
partly, we should not omit also to discuss arguments against such result, eg
the ideas of David Owen[38]. He points out that since the costs
of product liability will be passed on to the manufacturer*s shareholders and
to other consumers, their interests must be counted equally with those of the
victims. But I feel that this argument is not convincing, as those who are
injured by a defective product suffer damage to high ranking interests, i.e.
body, health, property; whereas the shareholders suffer pure economic loss.
Further the victim would have to bear his loss alone, whereas the burden of
product liability is spread to a great number of shareholders and other
consumers. Owen underlines further that
the injured consumers not only choose products but may contribute to their own
injury by the way they use the goods. But this is a counterargument which can
be ignored as the general rules on comparative negligence take regard of the
victim*s misbehaviour. Therefore, all in all I think that these objections will
not be able to overrule what has been said before.
Summarizing some of the questions which seem
worthy of discussion: Must Europeans really come to the conclusion that the
product liability rules provided by the EU can be justified 每 if at all 每 only
in part, as their strictness appears unreasonable and there is no justification
for including innocent bystanders in the circle of protected persons? On the
other hand: is it not inconsistent that those entrepreneurs who offer services
or who design or build immoveables, eg skyscrapers or bridges, are not burdened
by strict liability? Further, is it true
that such strict liability causes a rather unjust redistribution and that there
is no real need for such strict liability as social security systems provide
far-reaching compensation?
I feel that
by discussing all these problems and doubts we can learn a lot and in the end
will the discourse will pave the way for a reasonable and therefore compelling solution
for the area of product liability. As to my opinion, I think that there are not
enough convincing reasons to burden the producer with strict liability. Rather
the producer should be treated in accordance with the rules on enterprise
liability. Such liability should be a liability for misbehaviour, but it ought
to be stricter than general fault-based liability by reversing the burden of
proof in cases where there is some defect in the entrepreneur*s sphere. This
idea complies with Art 4:202 Principles of European Tort Law: ※(1) A person
pursuing a lasting enterprise for economic or professional purposes who uses
auxiliaries or technical equipment is liable for any harm caused by a defect of
such enterprise or of its output unless he proves that he has conformed to the
required standard of conduct.§ The Austrian Tort Law Draft 2007 follows this
line of thought by providing: ※∫ 1302.
(1) A person who operates an enterprise out of commercial or voca-tional
interests is also liable for damage caused by a defect in the enterprise or its
products or services. The entrepreneur is not liable if he proves that the care
necessary to avert the damage was exercised.§
[1] Cf Markesinis,
Comparative Law in the Courtroom and Classroom (2003) 167 et seq.
[2] To this and presenting a highly
interesting overview Reimann, Liability
for Defective Products at the Beginning of the Twenty-First Century: Emergence
of a Worldwide Standard?, The American Journal of Comparative Law LI (2003) 751
ff. See further Ebers/Janssen/Meyer (eds), European Perspectives on Producers* Liability (2009)
with many special reports as well as country reports and in particular a
detailed comparative report by the editors.
[3] See eg Geistfeld, Principles of
Products Liability (2006) 9 ff; W.V.H.
Rogers Winfield and Jolowicz on Tort (18th ed, 2010) nos 1.5 and
10.1; Schermaier, New Law Based on
Old Rules: Antecedents and Paragons of the Modern Law on Producers* Liability,
in: Ebers/Janssen/Meyer (eds), European Perspectives on Producers* Liability
(2009) 82 ff.
[4] This is underlined by Zweigert/Kötz, An Introduction to Comparative Law (3rd ed, 1998) ∫ 42 V (page 676).
[5] Rogers, Winfield and Jolowicz on Tort nos 10.1 and 2.
[6] See M. S. Shapo, Shapo on the Law of Products Liability (2013) ∫ 3.
[7] See Shapo, Products Liability ∫ 3.03,
∫ 5.03.
[8] See with more details Dobbs/Hayden/Bublik, The Law of
Torts II (2nd ed, 2011) ∫ 450.
[9] See Restatement Second of Torts ∫
402A.
[10] To this decisive difference between
the common law and the European continental legal systems see Zweigert/Kötz, Introduction to Comparative Law ∫ 36 IV, ∫ 42 V (page 672).
[11] See with further details Karner/Koziol, Mangelfolgeschäden in
Veräußerungsketten (2012) 65 ff.
[12] Kötz/Wagner,
Deliktsrecht (11th ed, 2010) no 615 are of the opinion that the EU
Directive provides only a liability based on violation of
Verkehrssicherungspflichten (duties to protect others against risks one has
established by one*s activity or property). I think that this cannot be true
because breach of duty of care is no requirement and the manufacturer also has
no defence by proving that his activities complied with all duties of care.
Further, in the typical cases which should be solved by the special product
liability, namely the ※Ausreisser§ or ※runaways§, it is presupposed that such
defects cannot be avoided and that therefore no misbehaviour is at stake.
[13] See Shapo, Products Liability ∫ 7.01
and 02.
[14] It seems that the South African
Consumer Protection Act of 2008 has not been influenced.
[15] See Art 41 CTL and Koziol/Zhu, Background and Key Contents of the New Chinese Tort Liability
Law, Journal of European Tort Law (JETL) 2010, 350 ff.
[16] Dobbs/Hayden/Bublik, The Law of Torts II (2nd
ed, 2011) ∫ 450 p 897 f.
[17] Koziol, Basic Questions of Tort Law from a
Germanic Perspective (2012) no 2/74 ff.
[18] Lewis/Morris,
Tort Law Culture in the United
Kingdom: Image and Reality in Personal
injury Compensation, JETL 2013, 232 ff.
[19] Borghetti, The Culture of Tort Law in France,
JETL 2013, 164 f.
[20] Andersson, The Tort Law Culture(s) of Scandinavia, JETL 2013, 219 f.
[21] It is highly interesting that in
the USA
strict liability is no longer thought to be a necessity although the social
security system provides less protection than in those countries which tend to
strict liability.
[22] However, the legal systems in
Scandinavian countries and in Poland
have abolished the recourse against the offender.
[23] In Israel the Liability for Defective
Products Act, which was enacted in 1980, provided strict liability even before.
[24] See to this eg Lunney/Oliphant, Tort
Law. Text and Materials (5th ed, 2013) 573 f.
[25] See to the objections on strict
liability in this area in the USA Dobbs/Hayden/Bublik, The Law of Torts II (2nd ed, 2011) ∫ 450 p 897.
[26]
B.C. Steininger, Verschärfung der
Verschuldenshaftung. 邦bergangsbereiche zwischen Verschuldens- und Gefährdungshaftung
(2007) 35 ff.
[27]
Cf on that M邦ller-Erzbach,
Gefährdungshaftung und Gefahrtragung, AcP 106 ( 1910 ) 365 ff; Esser, Grundlagen und Entwicklung der
Gefährdungshaftung (1941) 97 ff; Koziol, Österreichisches Haftpflichtrecht I3 (1997) no 6/11.
[28]
See Koziol,
Haftpflichtrecht I3 no 6/11.
[29] See for the USA Dobbs/Hayden/Bublik, The Law of
Torts II (2nd ed, 2011) ∫ 450 p 895; Shapo, Products Liability ∫ 7.02
[E].
[30] B.A. Koch/Koziol, Comparative Conclusions, in: B.A. Koch/Koziol
(eds), Unification of Tort Law: Strict Liability (2002) 411; B.A. Koch, Enterprise Liability, in: European
Group on Tort Law, Principles of European Tort Law (2005) 94 f; G. Wagner in M邦nchener Kommentar, BGB V6
(2013) ∫ 823 no 83.
[31] Cf also the idea of loss spreading
mentioned by See for the USA Dobbs/Hayden/Bublik, The Law of Torts II (2nd ed, 2011) ∫ 450 p 895.
[32] See Gilead,
Israel 194 and
197, as well as B.A. Koch/Koziol, Austria 20, in: B.A. Koch/Koziol, Unification: Strict
Liability.
[33]
Wantzen,
Unternehmenshaftung und Enterprise Liability (2007) 84 ff.
[34] In a paper which will be published
in 2014 in the volume Koziol (ed), Basic Questions of Tort Law in a Comparative
Perspective.
[35] Cf Shapo, Products Liability ∫ 6.
[36] This idea may have influenced the Dutch Supreme Court to introduce
in 1989 the &reasonable safety
expectation* into the general principles of Dutch tort law.
[37] Canaris, Die
Vertrauenshaftung im deutschen Privatrecht (1971); Canaris, Die Vertrauenshaftung im Lichte der Rechtsprechung des
Bundesgerichtshofs, in: 50 Jahre Bundesgerichtshof I (2000) 129.
[38] The Moral Foundations of Products
Liability Law: Toward First Principles, 68 Notre Dame L. Rev. 427 (1993).
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