Product liability (Germany)
The product liability is a part of German tort law . It is regulated in § § 1 to 19 of the Product Liability Act (ProdHaftG) and is to be distinguished from the fault-based " producer liability " according to § 823 BGB.
Product liability does not require a contract between the manufacturer and the end user, nor is any fault necessary for the manufacturer's liability. Rather, the end user should be protected from certain dangers emanating from a defective product, regardless of whether the manufacturer is at fault, even if these only became apparent after the product was placed on the market . So it is a pure strict liability . In the absence of a contract or contact between the manufacturer and the end customer, who usually purchased the product from an intermediary, claims from warranty , positive breach of contract (pVV) and culpa in contrahendo ("cic", fault before contract conclusion) are excluded. A contract in favor of a third party is also generally out of the question, as the end user is not yet known to the manufacturer and the distributors and is therefore not included in the contract concluded between them.
history
Legal systems of the Middle Ages already required that various activities and products be subject to appropriate duties of care and marketing . On the basis of the German Civil Code , which came into force on January 1, 1900, the general duty of care was defined as one of the first interpretations by the Imperial Court in Leipzig in 1903. It is an obligation to act or not to act, to avoid, prevent or reduce avertable dangers for the user or third parties and forms the basis for the later legal regulations.
Legal regulation
Product Liability Act
Other laws
Further facts of product liability can be found in special laws such as the German Medicines Act or the Food Act . There are partly deviating regulations on liability limits and the product term .
The liability requirements
Violation of protection
The goods to be protected named in Section 1, Paragraph 1, Clause 1 of the ProdHaftG include life , body , health and things other than the defective item (see defective production ). The protected goods of life, body and health were not defined in more detail in EC Directive 85/374 / EEC. In this respect, it can be assumed that the definition is based on the legal system of the respective member state. Since there is no definition in the ProdHaftG either, the relevant comments refer to the definition in Section 823 (1) BGB.
Liability for damage to property is limited in the Product Liability Act to other things than the defective product, which were intended for private use or consumption and were mainly used for this purpose by the injured party. This formulation includes i.a. a. Damage to products in the course of a business activity.
Presence of a product
In § 2 ProdHaftG, a product is any movable thing, even if it forms part of another movable thing or an immovable thing and electricity . It was necessary to explicitly mention the electric current, as it is not considered a movable property under German law. "A thing that is part of another movable thing", this differentiation makes it possible to claim against the manufacturer of an individual part or an essential part of another thing. The manufacturer's liability does not apply if the product according to Section 1 (2) No. 3 ProdHaftG was not manufactured for sale or for a type of distribution with an economic purpose and was not manufactured or distributed as part of the professional activity.
In addition to this, it is also important that when asserting claims on the basis of the ProdHaftG “only” civil law claims are asserted (compensation for damages in addition to performance), but not criminal claims.
Placing on the market
Section 1 (2) no. 1 ProdHaftG excludes the producer's liability in the event that he has not brought the product into circulation. Placing on the market is always left to others. If the product was stolen, misappropriated or lost during transport and was found by someone else, it cannot be placed on the market and liability under ProdHaftG does not apply. If the product is handed over to others for the purpose of testing or testing, it is also not considered to have been placed on the market.
There is an error
A prerequisite for product liability is, in accordance with Section 1 Paragraph 1 Sentence 1 ProdHaftG, that there was a defect in the thing that caused the damage. An error occurs when a product does not offer the necessary security. When assessing the required level of safety, particular attention must be paid to the presentation of the product, the expected use and the time of placing on the market. The defect must already have been present at the time of placing on the market and must not have arisen later due to normal wear and tear or impact.
The addressees of liability
Even if only the manufacturer is named as the liable party in Section 1 (1) sentence 1 of the ProdHaftG , a differentiation is necessary because different types of manufacturer are differentiated. In addition, in certain cases other people must allow themselves to be treated like or as the manufacturer of something.
The actual manufacturer
The actual manufacturer is the person who "independently produced or won a product" (quote from Taschner / Frietsch, § 4, marginal no. 12). The term manufacturer includes the manufacturer of the end product, sub-product and raw material. All three are equally liable to the injured party for a personal defect in the product. People who only pack or portion a product on instruction, but do not intervene in its substance, are excluded. The manufacturer of the end product is liable to the end customer for all defects in the product, even if only one part of the product purchased was defective.
The quasi-manufacturer
Even those who are not the actual manufacturer of a product must allow themselves to be treated as such in accordance with Section 4 (1) sentence 2 ProdHaftG if they pretend to be a manufacturer by adding their name, brand or other distinctive mark. It is not absolutely necessary to attach a brand name or a trademark to the product. It is sufficient if this is done on the packaging or on an instruction leaflet.
The importer
Even the importer who imports a product with an economic purpose from a third country into the scope of the Agreement on the European Economic Area is liable as a manufacturer in accordance with Section 4 (2) ProdHaftG. The background to this is that, under the aspect of consumer protection, the injured party cannot be expected to have to assert his rights in a third country. The import must take place in the context of business activities and for the purpose of distribution.
The supplier
The supplier of a product can also be liable like the manufacturer if he cannot name his supplier or the manufacturer. In the case of an import from a third country, the supplier is liable even if he can name the manufacturer but not the importer. The supplier's liability is to be viewed as an alternative solution that is intended to prevent liability under the ProdHaftG from being undermined by placing anonymous products on the market.
Several adherents
In the course of the production chain it can happen that several people are liable for damage. In this case, they are liable to § 5 clause 1 ProdHaftG to the injured as jointly and severally . However, if the damage is caused by instruction errors (incorrect operating instructions) or other errors (incorrect installation) by the end manufacturer, then only the end manufacturer is liable.
The scope of liability
The scope of liability according to ProdHaftG is partially limited.
Liability for property damage
In the case of liability for property damage, a deductible of € 500.00 applies in accordance with Section 11 of the ProdHaftG. Otherwise the amount of liability is unlimited. The only thing to be observed is the restriction from § 1 Paragraph 1 Clause 2 ProdHaftG to things other than the defective item, which were intended for private use or consumption.
Liability for bodily harm and damage to health
In the event of damage to health, the costs of medical treatment must first be reimbursed. The injured party can also claim for loss of income. The damage to be compensated is based on the respective loss of earnings. Also to be reimbursed are the costs of retraining that became necessary due to the injury, insofar as this makes sense to avert the loss of earnings, as well as all professional rehabilitation costs.
Likewise, the injured party can assert the costs of an increase in his needs due to the injury. These include, for example, the cost of dietary food, walking aids, wheelchairs or home care. Compensation for immaterial damage, i.e. compensation for pain and suffering, can also be requested.
Liability in the event of death
If the injured party is killed by or as a result of the damage, Section 7 ProdHaftG regulates the scope of liability.
Maximum amount of liability
By § 10 para. 1 ProdHaftG a liability limit of 85 million euros is set for personal injury. This refers both to the liability towards several injured parties from a damaging event, as well as for so-called "serial damage". Serial damage is damage to all persons from a defect in a product series.
Liability reduction
Liability for damage can be reduced in the event of contributory negligence on the part of the injured party in accordance with Section 6 (1) ProdHaftG. The general rules on contributory negligence in accordance with § 254 BGB with some special features.
The limitation of claims
The claims of the injured party expire in accordance with Section 12 (1) ProdHaftG three years after the injured party has become aware of the damage and the person liable for compensation or should have become aware of it.
The statute of limitations is suspended in accordance with Section 12 (2) ProdHaftG through negotiations between the parties. Otherwise, the law refers to the provisions of the German Civil Code (BGB) in Section 12 (3), in particular Sections 195, 198 (195: regular limitation period is 3 years; 198: limitation in the case of legal succession)
However, if more than ten years have passed since the product was placed on the market, acc. According to §13 Abs. 1 ProdHaftG no more claims are asserted; unless there is a legal dispute or dunning procedure pending.
literature
- Claudius Eisenberg, Rainer Gildeggen, Andreas Reuter, Andreas Willburger: Product liability. 1st edition. Oldenbourg Verlag, Munich 2008, ISBN 978-3-486-58575-9 .
- Hans Josef Kullmann: ProdHaftG. 5th, revised edition. Erich Schmidt Verlag, Berlin 2006, ISBN 3-503-09355-9 .
- Tobias Lenz: Product Liability Law. Product monitoring and recall. (= NJW practice. Volume 9). 1st edition. Verlag CH Beck, Munich 2011, ISBN 978-3-406-48161-1 .
Individual evidence
- ↑ Looschelders: Law of Obligations. Special part. 2013, p. 470 f.