SOURCES OF LAW AND THEIR EVOLUTION

Since the enactment of the Defective Product (Liability) Law, 1980 (DPLL), one can distinguish between two sets of legal rules governing product liability in Israel. The provisions of the DPLL compose one set of rules. These rules apply to the liability of a producer for bodily injury caused by a defective product, as defined by the DPLL. The other set of rules, hereinafter referred to as the ‘general liability arrangements’ (GLA), is composed of all tort liability arrangements besides the DPLL, and of other contractual liability arrangements (including the law of sales), that apply to harm caused by products. The major tort liability arrangements of the GLA, embodied in the Civil Wrong Ordinance (CWO), are the tort of negligence and, to a lesser extent, the tort of breach of statutory duty (BSD). GLA rules may apply to all kinds of harms (including bodily injury) caused by all kinds of defective products. Consequently, the two sets of liability rules, the DPLL and the GLA, may overlap in cases of defective product causing bodily injury. The aggrieved party, the plaintiff, may sue the harm-inflicting party, the defendant, in both venues of liability. When the DPLL does not apply because the harm caused is not bodily injury or because another requirement of the DPLL is not met, the plaintiff may resort to the variety of claims available under the GLA venue.

The major difference between the liability regime in the DPLL on the one hand, and the tort of negligence as the major cause of action in tort under GLA on the other hand, is that under the former liability is, at least partially, strict liability, while under the latter it is basically fault-based. Given this difference one would expect most claims for bodily injury caused by products to be made under the DPLL because strict liability is supposedly wider in scope and easier to establish than fault-based liability in negligence. In reality, however, the following factors made the DPLL less attractive than one might expect: the complexity of the ‘defectiveness’ concept; caps in the DPLL on awards for loss of earning and for non-pecuniary harms; and shorter limitation periods.