Liability for Defective Products in France
(Responsabilité du fait des produits défectueux)
Author: Yaël Hirsch
APPLICABLE PRODUCTS LIABILITY LAW
The Law of 19 May 1998 on Liability for Defective Products, European Community Directive of 25 July 1985 & The French Civil Code, Articles 1386-1 to 1386-18
The Law of 19 May 1998 on Liability for Defective Products1 (hereinafter referred to as the “1998 Law”) transposes the dispositions of the European Community Directive of 25 July 19852, into the Civil Code, Articles 1386-1 to 1386-18, marking the first codified appearance of liability for defective products [responsabilité du fait des produits défectueux] under French Law.
Both the abovementioned European Directive and the French Civil Code hold that liability for defective products shall not affect the rights to which a victim may otherwise be entitled under contract and tort laws3. As such, strict products liability supplements claims, that a victim may otherwise have under contract and/or tort liability laws.
STRICT PRODUCTS LIABILITY FOR DEFECTIVE PRODUCTS
Strict Products Liability for Defective Products Rule
The “1998 Law” establishes that a producer [producteur] shall be strictly liable for damage caused by defective products put into circulation [mise en circulation du produit]4. Strict products liability prevents an injured party from having to establish fault, negligence or breach of contract.
Definition of a Defective Product
A defective product is any movable, even incorporated into an immovable, which is not providing the safety [sécurité] that a person is entitled to expect5. French Courts examine the totality of circumstances when evaluating safety and whether a product is defective (e.g. the presentation of the product, the reasonable expected use of the product, the time when the product was put into circulation). A product is not defective for the sole reason that a better product has subsequently being put into circulation.
Moreover, the product shall be voluntary put into circulation by the producer6.
A Producer of a Defective Product
The person liable is the producer of the defective product. The term “producer” refers to a professional. He/she could either be:
(i) the manufacturer of a finished product, the producer of any raw material [matière première] or the manufacturer of a component part [sous-traitants]7;
(ii) any person acting as a professional by:
- putting his name, trade mark or other distinguishing feature on the product presenting himself as its producer; or
- importing a product into the European Community for sale, hire, with or without a promise of sale, or any other form of distribution8; and
(iii) if the producer remains unknown a seller [vendeur], a lessor [loueur], with the exception of a finance lessor [crédit-bailleur] or other similar lessor, and any other professional supplier9, unless they identify their own supplier or producer within three months of their notification of the victim’s claim10.
When a product incorporated into another causes damage, the producer of the component part and the one who has proceeded to the incorporation are both jointly and severally liable 11.
A Victim of a Defective Product
Contrary to other type of liability (torts, contract), the “1998 Law” is applicable to all victims. The quality of the victim (professional or not) and his/her connection to the producer (contractual or non contractual) are irrelevant to the application of the strict liability set forth by the law.
ELEMENTS REQUIRED TO ESTABLISH A PRODUCT'S LIABILITY
Products liability claims are ...