The liability regime for defective products

The liability regime for defective products, resulting from Directive 85/374/EEC and transposed into French law in Articles 1245 et seq. of the Civil Code, establishes an objective and autonomous liability.

The Court of Justice of the European Union (CJEU) considers that the directive achieves “total harmonisation”, preventing Member States from maintaining competing liability regimes based on the same principle (lack of product safety) but with different conditions.

This liability regime is based on certain principles of full liability (I) meeting specific conditions of implementation (II) and grounds for exemption (III) . The legal action is articulated with the other liability regimes and is framed by a double limitation and foreclosure period (IV).

Strict liability

Nature of liability

Article 1245 of the Civil Code establishes the principle: “The producer is liable for damage caused by a defect in his product, whether or not he is bound by a contract with the victim”

Liability is said to be “ipso jure“, which means that the victim does not have to prove fault on the part of the producer . (Article 60 of the Civil Code)

The mere fact that the product is defective and has caused damage is sufficient to engage the producer’s liability, provided that he cannot invoke one of the exhaustively listed causes of exemption.

This is an autonomous non-contractual liability regime, which applies independently of any contractual relationship.

This liability cannot be excluded or limited by contractual clauses, except in the case of very strict exceptions for damage to property between professionals.

In addition, the fact that the product has been manufactured in accordance with the rules of the art, existing standards or even that it has received an administrative authorization is irrelevant and cannot exempt the producer. (Article 302 of the Civil Code)

those at fault

The law mainly targets the “producer”. This concept is understood extensively and includes:

• the manufacturer of a finished product,
• the producer of a raw material,
• the manufacturer of a component part. Article 515-7 of the Civil Code The Court of Cassation specified that the manufacturer of a finished product and that of the component part are both considered producers and are jointly and severally liable . (Court of Cassation, 15 March 2017 No. 15-27.740)
• Any person who presents himself as a producer by affixing his name, brand or other distinctive sign to the product (apparent producer).
• The importer of the product into the European Union.

In the absence of identification of the producer, the seller, the lessor (except financial lessor) or any other professional supplier may be held liable, unless he designates his own supplier or the producer within three months.

Sets the terms of implementation

The victim must prove three elements: the defect of the product, the damage and the causal link between the two.

Product defect

1 . A product is defective when it does not provide the safety which a person is entitled to expect , taking all circumstances into account , including :

The assessment is made in abstracto, taking into account all the circumstances, in particular:

• • the presentation of the product;
• the use to which it could reasonably be expected that the product would be put;
• The time of its entry into circulation.

The defect may be intrinsic (design or manufacturing defect) or extrinsic (lack of information, absence of risk warning).

recoverable damage

The scheme covers two types of damage, according to Article 1245-1 of the Civil Code:

• Damage resulting from injury to the person (bodily injury), which is fully repaired.
• Damage caused to a good other than the defective product itself, provided that this damage is greater than an amount fixed by decree (currently 500 euros). This reparation is reserved for goods that are normally intended for private use or consumption and that have been mainly used as such by the victim.

However, the CJEU has accepted, in an interpretation not contrary to the Directive, that a national law may allow compensation for damage caused to a thing intended for professional use 8.

Exemption Causes

The producer may exonerate himself from his liability ipso jure by proving one of the facts exhaustively listed in Article 1245-10 of the Civil Code:

• • that he did not put the product into circulation;
• That the defect did not exist at the time of entry into circulation.
• That the product was not intended for sale or other form of distribution.

Development risk

• that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered; or
• That the defect is due to the conformity of the product with mandatory rules of a legislative or regulatory nature.

The liability of the producer may be reduced or disallowed when, having regard to all the circumstances, the damage is caused both by a defect in the product and by the fault of the injured person or any person for whom the injured person is responsible. ARTICLE 338-12 OF THE FRENCH CIVIL CODE:

litigation

Articulation with other bases of responsibility

That is a crucial point. The special regime of liability for defective products does not exclude the application of other liability regimes, provided that they are based on different grounds.

Possible actions: The victim retains the possibility to act on the basis of liability for fault (Article 1240 of the Civil Code) or the guarantee of hidden defects (Article 1641 of the Civil Code).

The Court of Cassation recently recalled that an action for liability against the producer is possible on the basis of proven fault, “such as the maintenance in circulation of the product of which he knows the defect or a breach of his duty of vigilance” ( Court of Cassation, November 15, 2023, No. 22-21.178 )

Excluded action: On the other hand, case law has clearly ruled out the possibility for the victim to act against the producer on the basis of general liability for things (Article 1242, paragraph 1 of the Civil Code). The Court of Cassation considers that this action, when invoked after the product has been put into circulation, “necessarily stems from a lack of safety” and is therefore not based on a different basis from that of the special regime. (Court of Cassation 11 July 2018, No. 17-20.154)

Deadline

The action for compensation is framed by a double delay:

• A limitation period of three years: The action lapses within three years from the date on which the plaintiff had or should have had knowledge of the damage, the defect and the identity of the producer.
• A limitation period of ten years: The producer’s liability is extinguished ten years after the release of the very product that caused the damage, unless legal action has been taken by the victim during this period. (Article 472 of the French Civil Code)