Helmut Koziol
28
December 2012
Note. The questions highlighted here
should form the basis of the commentaries requested in respect of the
hypothetical cases selected for analysis.
In most legal systems
producers are now subject to special
liability regimes which appear much stricter than the fault-based liability regime
applying in general: producers are liable irrespective of fault for damage
caused by defective products they put into
circulation. These stricter rules on product liability originate in the USA.
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.
The almost worldwide
tendency to provide for strict product
liability raises quite a few interesting questions, which should – as far as
possible – be discussed in the analyses to
be provided of the hypothetical cases and otherwise in introductions to those analyses. To some extent the questions can
be subdivided into those which can
be characterised as fundamental insofar as they go to
the reasons for introducing strict product liability and its justification, and
those focussing upon the concepts employed. I will start with the fundamental questions
and then go on to the conceptual issues.
1.
Reasons for introducing strict product liability
It appears that worldwide
– with the possible exception of France – there was a prevailing impression
of an urgent need to provide for the
stricter liability for producers who put defective products into circulation and, therefore, the American concept
spread very quickly. But was there really such a need and, if so, why did it
arise? What gaps existed in the reasonable protection of both buyers and third
persons and what were and are the shortcomings of the general rules? For
example, was the borderline between contractual and delictual liability a
source of problems? Or was the regime of liability for others (agents,
employees, etc) inadequate? Or was the protection of pure economic interests at
stake? Or was it the opinion that the requirement of fault in establishing
liability was unreasonable? Or the difficulties in proving fault?
These questions should be discussed in the commentaries
provided for Cases 1 and 2.
2.
The justification for strict product liability
The
further basic question seems to be
how such strict liability can be justified. The imputation of liability always
needs convincing reasons and, if liability
is to be independent of fault,
the most widely accepted criterion, some alternative criterion must be clearly enunciated. The answer to
this question is, of course, decisive in laying down the reasonable scope of
product liability, in solving questions of conceptual detail and in the interpretation
of legislative provisions. Last but not least: if the WTLS wants to make recommendations on the development of product
liability and worldwide harmonisation, then such recommendations can only be
convincing if they are based on reasonable and comprehensible arguments.
A
number of possible justifications for strict product liability may be
identified and evaluated.
(a) Control of a dangerous
thing
In
many legal systems keepers of
dangerous things are strictly liable because they have
the power to exercise influence over
them. Might the same idea underlie strict product liability? Or is it an
objection that the producer is no longer the keeper of a product when he or she
has put it into circulation and
damage occurs?
In
this context, is it significant that the dangerousness
of defective products is in general qualitatively different from, for example, the
dangerousness of nuclear plants, railways or motor
cars, to mention the most important
sources of danger for which strict liability is provided under many legal
systems. A product is defec-tive only if the product
does not offer the safety that one is entitled to
expect taking all the circumstances into
account. In general, however, the danger emanating from the defect cannot be considered
very great since many products, even in a defective state, are not likely to bring about exten-sive damage or to substantially increase the frequency of damage
occurring. Typi-cal examples are bent paper clips or rotten food insofar as
they can only result in harm-less scratches or temporary nausea respectively. In
comparison, rules on strict liability which are based on dangerousness show that
the high probability of causing
damage and the extent of
the possi-ble damage are decisive considerations. 还应突出
A
more fundamental reason for doubting that the danger caused by a product defect
is able to justify strict liability
may also be highlighted. The general, abstract
danger generated by things or facilities such as, for example,
nuclear plants or motor cars, serves the interest of the keeper; dangerousness and
usefulness are thus inter-related. The
specific danger arising in the individual case as the result of a defect is, on
the other hand, usually not beneficial in any way to
the entrepreneur; on the contrary, the product’s defectiveness runs contrary to his interests. Can such concrete dangerousness
nevertheless justify strict liability?
(b) Protection against the
risks inherent in industrial production
What about the justification for the European Directive provided by the
legislator? The Directive very
clearly states that liability without fault should apply only to movables which have been industri-ally produced.
The idea that the purchaser needs special protection against the special risks
of anom-alies associated with industrial mass production seems worth discussing as, in
spite of all reasonable measures, product defects can never be absolutely
excluded in the case of mass production nor can inspection always prevent
defective products from being placed on the market. The wording of the
Directive, however, relaxes the limitation to
industrial products so that the liability set out also applies to handmade and artistic, custom-made
items, and since 1999 also to
agricultural products. Moreover, would the idea of the inevitable risks inherent in indus-trial mass production really justify liability for damage
deriving from defec-tive construction or inadequate instructions for use?
(c) Enterprise
liability
Can
the strong trend – especially in Europe but also in the
USA
– towards a special, more stringent
liability for entrepreneurs (’enterprise
liability’) help to justify the strict
liability of producers? Perhaps not, inasmuch as such liability – at least, in
some conceptions – remains fault-based but with a reversed burden of proof (see
eg Art 4:202 of the Principles of European Tort Law), and so would by no means be
as strict as the liability on producers.
(d) A risk community
Would it be possible to call
on the notion of the risk community? If the producer serves as a clearing house for all damage
caused by his products, he or she can pass on all the compensation costs to the clients in general, who are the ones who derive
advantages from the products. In particular, no-fault- product liability laws have
the effect that the posi-tion of the entrepreneur is approximated with that of
an insurer, when seen from a functional perspective: the liability risks
generated are taken into account by entrepreneurs
in their price calculations, so that clients may be understood as a risk community, who from an economic
perspective ultimately bear the costs of the risk-related liability regime imposed
on the entrepreneur. However, this idea only applies when the acquirer of the goods suffers
damage, and not when the damage is suffered by a third party.
(e) Other justifications
Are there any further ideas – for example,
insurability – which may be able to
justify the producer’s strict liability? Can economic analysis help to provide insight into
this area?
These questions should
be discussed in the commentaries provided for Cases 1 and 2.
3.
Inconsistencies connected with product liability?
It may be that a
convincing justification can be given for strict liability on producers, but
that such justification covers only part of the scope of the liability accepted
today or that it also covers some
areas which are currently not under the regime of strict product liability. 但该种理由只能涵盖当今接受的责任的部分或者也涵盖现在未在严格产品责任制度之内的一些领域。
Thus it could be the
case that the general justification for strict product liability is not able to cover the inclusion of innocent bystanders in the
circle of protected persons. On the other hand, the justification could raise
the question of why fellow-entrepreneurs are not protected to the same extent as consumers or why strict
liability does not arise in cases of damage caused by defective services or why
only movables are subject to strict
liability and not buildings or bridges or why some legal systems have a
different regime for medicines, or why immaterial loss does not have to be compensated in some countries. One can imagine
that quite a number of similar questions arise, varying in the individual legal
systems.
These questions could be discussed in the commentaries provided for Case
3.
4.
Conceptual issues
The rules on product
liability raise many questions of detail which are important in practice. A few
worth mentioning are, for example, how “defect” is defined, whether a product’s
failure to provide protection
against harm (as in the case of a drug or weedkiller) can be a defect, what is to be understood
by the terms ‘supply’ and ‘putting into
circulation’, and who is a ‘producer’? The defences available in respect of a
claim also cause not insignificant difficulties.
These conceptual
issues are intrinsically linked with the fundamental questions of need and
justification highlighted in Sections 1 and 2 above, because the concepts
employed should be adequate to meet
the deficiencies that strict product liability was intended to address, and should reflect and support the
justifications provided for it.
These questions
should be discussed in the commentaries provided for the hypothetical cases as
and where appropriate.
5.
Deficiencies of the rules in practice
What are the deficiencies of the rules on product liability in your
legal system?
This question could
be discussed in the commentaries provided for the hypothetical cases as and
where appropriate.
6.
Further questions
Each respondent is
requested to highlight further issues
he or she thinks to be of relevance.
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