NOUVEAU REGIME RESPONSABILITE PRODUITS
Cabinet d'Avocats, Jean-François CARLOT


PRESENTATION OF THE NEW REGULATIONS
FOR LIABILITY CONCERNING DEFECTIVE PRODUCTS
IN FRENCH LAW



(Law n° 98-389 of May 19 th 1998 - J.O. of May 21 th 1998)

 

A title IV is inserted in the third book of the Civil Code, following clause 1386, and thus written :

TITLE IV A : ABOUT RESPONSIBILITY FOR DEFECTIVE PRODUCTS

 

I - THE PRODUCER'S LEGAL RESPONSIBILITY PRINCIPLE

 

1.

From now on, the professional producer is legally responsible for the personal injury or material damage caused by the deficiency of a product intended to sale or to any other form of distribution.

This legal responsibility concerns all the victims, either his customers or a third party (no distinction between contractual or quasi-criminal responsibility regulations).

The producer remains responsible even though he has respected the art rules or the exinsting standards, and has had an administrative permit.

 

2.

The producer's responsibility can't be lessened by a third party's taking part in the damage.

 

3.

The liability restricitve clauses are forbidden and supposed not to be written.

The clauses stipulated between professionnals remain valid for the damage caused to the properties which are not privately used by the victim.

II - WHAT IS A DEFECTIVE PRODUCT ?

 

1.

A product is said to be defective when, being delivered, it has not got the legitimately expected safety.

Then if it causes a bodily or material damage it is supposed to be defective.

Nevertheless, the notion of safety defect still depends on the judge's supreme estimation, as it is different from a user to another one.

 

2.

The insufficient directions for use or warning, or inadequate recommendation of the seller when the product is sold, can also be considered as safety defects.

 

3.

This clause applies to all products, whatever they are, either in food industry, electricity, human produce, or manufactured productions.

 

 

III - WHO ARE RHE RESPONSIBLE PRODUCERS ?

 

This specific responsibility regulation doesn't concern the private sellers who still depend on common law.

Those who are fully and jointly responsible are the professional suppliers who contribute to the marketing and the distribution of the products, mainly :

- the manufacturer of the finished product.

- the manufacturer of a component, except it he can state that it did not contribute to the safety defect.

- The reseller (wholesaler, retailer, department store).

- the hirer (except leasing).

- the importer.

- the one who presents himself as a producer by inserting his trademark on the product.

The persons whose liability can be established as manufacturers are not considered as producers (1792 and 1646-1 - Civil Code).

IV - HOW CAN THE PRODUCER CLAIM IMMUNITY ?

 

1.

His liability can be reduced though, when the producer can prove the damage is jointly caused by a defect of the product and by the victim's fault, or another person's whose victim is responbile (1386-14).

The regulation of the new law will then mainly rely on the conditions of the irregular use of the product.

Hence the necessity of detailed information about the characteristic of the product, and the way to use it.

The seller will play a most important part in the praise of the product, and sometimes he will have to combine the rules of "sale refusal" with the necessity not to deliver a dangerous product to a person who is obviously unable to use it, mainly in the field of Do-It-Yourself (where amateurs act like professionals).

 

2.

The producer will also be able to claim immunity by proving the safety defect didn't exist when the product came out on the market place.

 

3. DEVELOPING RISK

3.1

By proving that at the time of marketing, the scientific and technical knowledge did not allow to find out the existence of a safety defect (exclusion of developing risk).

But this case of immunity does not concern the produce from the human body (painful remembrance of AIDS).

 

3.2.

However, in case they realize a developing risk in a ten years' time after marketing, producers must take all the necessary steps in order to warn against damaging consequences (information, recall), otherwise they remain responsible :

- necessity of a special insurance for recall costs.

- necessity to trace back products.

V - REGULATION ABOUT APPEALING AGAINST PRODUCERS

1.

Producers remain fully responsible for ten years from the marketing of the products, according to law.

But they are still responsible beyond that time if there has been a fault.

That limit time is deferred if the victim takes legal action against them.

 

2.

The action for damage compensation must take place in a three years'time from the claimant's knowledge of the damage, the defects, or the identity of the producer.

 

3.

The supplier's legal action against the producer follows the same rules as the direct victim's.

However, he must act in the year following his summons.

Mind this dangerous foreclosure !

VI - COEXISTENCE OF PARALLEL REGULATIONS FOR COMMON LAW LIABILITY

A - CIVIL LIABILITY

 

1.

This specific liability regulation does not interfere with the rights that the victim of a damage can claim by virtue of the general regulation concerning contractual or extracontractual liability, or of a special regulation.

In all cases, the producer will remain responsible for his mistake or that of the people he stands surety for.

 

2.

If the product does not show any safety defect, the seller will be responsible though, in case of infringement of this contractual duties of :

- delivery (a.1147 of Civil Code).

- specific regulation about guarantee for concealed defects (a.1641 and following, of Civil Code).

- advice for praise and use of his products.

 

3.

As regards thid parties, his liability will remain for fault, or for keeping the structure of a dangerous item.

 

4.

Appealing against producers is made easier by :

- the jurisprudence definitely backing the consumers' protection, and pitiless in case of a safety defect.

- the consumer's possibility to get legal aid or protection, in order to start legal proceedings freely.

B - PENAL LIABILITY

 

1.

In case of damage, the producer is penally responsible if incautionsness or carelessness have undermined the person's integrity, with the following consequences :

- penal liability of the moral person, and its specific penalties, such as stopping professional life, etc...

- harmful publicity for the seller, particularly in the case of penal decision publications.

- offence increased by the exposure of persons to danger, which leads to withdrawal operations.

 

2.

This regulation is increased by :

- the public prosecutors' repressive policy when the safety of consumers or environment is concerned.

- the possibility ofr Consumers' associations to take legal action as injured party.

- the victims' taking advantage of the free investigations and penal inquiry for proof, which obviously encourages them to act in this field.

- the arrival of new law professionals in search for that type of cases.

 

 

 

***

 

This new regulation aims at bringing French law into compliance with the Community Instructions of July 25th 1985, with a ten years'delay.

But it does not bring any particular innovation in the rules concerning producers' responsibility, as the victims of damages caused by defective products could already get total compensation in civil or penal courts.

Nevertheless, it will allow juridictions to avoid "making law", by standardizing and simplifying legal actions, particularly by getting rid of the distinction between contractual or quasi-criminal liability regulations.

And if the victims are not satisfied with the new law, they can come back to the traditional nations which remain.

 

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