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Product Liability Directive
- from PART I
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- By Duncan Fairgrieve, Senior Fellow in Comparative Law at the British Institute of International and Comparative Law, London, Geraint Howells, Dean and Chair Professor of Commercial Law, City University of Hong Kong, Peter Møgelvang-Hansen, Professor of Commercial Law at the Copenhagen Business School, Denmark, Gert Straetmans, Full Professor of European Economic, Consumer and Commercial Law, University of Antwerp, Belgium, Dimitri Verhoeven, Researcher, Faculty of Law, University of Antwerp, Belgium, Piotr MacHnikowski, Professor of Civil Law and head of the Civil Law and Private International Law Department at the University of Wrocław, Poland, André Janssen, Visiting Professor at the City University Hong Kong, China, Reiner Schulze, Professor of German and European Civil Law, University of Münster, Germany
- Edited by Piotr Machnikowski
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- Book:
- European Product Liability
- Published by:
- Intersentia
- Published online:
- 15 December 2017
- Print publication:
- 02 August 2016, pp 17-108
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Summary
INCEPTION OF THE PRODUCT LIABILITY DIRECTIVE
HISTORICAL BACKGROUND
From a historical perspective, product liability was traditionally seen in many jurisdictions as merely a concrete illustration of the law of obligations to a specific factual matrix, involving the causing of damage by a product. It was only when the mass manufacture of consumer goods started to occur that sufficient impetus was generated towards the identification of an autonomous area of law. It was only then that practitioners and scholars commenced specialisation in the sphere of product liability. The US was of course at the vanguard of developments, and a word will thus be said of the evolution in the US, as a background to the European context. Professor David Owen records in his leading US treatise on the topic that the consequence of the spread of industrialisation in the 19th century was that by 1900, products ‘cases began to appear with some frequency’. There then followed iconic cases such as MacPherson v Buick Motor Co or Greenman v Yuba Power Products Inc, which ushered in the modern era of US products liability, accompanied by the various Restatements, with Owen noting that the strict liability rule enshrined in §402A of the Restatement (Second) of Torts resulted in the ‘the doctrine of strict products liability in tort, together with a miscellany of secondary principles spread like wildfire around the nation’.
The development of product liability in Europe as a distinctive area of the law occurred much later than in the US. It was not until relatively late in the 20th century, after the occurrence of mass product disasters in Europe, and the realisation that traditional responses of the law were inadequate to deal with such situations, that there was a movement towards products liability as raising distinct legal issues, for which a tailor-made regime for compensation was potentially required. It should be noted that comparative law played a role in this process in certain European jurisdictions, with Gerhard Wagner describing for instance how in Germany ‘product liability was imported from the US, both with regard to the legal problem and its solution’.
Denmark
- from Part II
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- By Marie-Louise Holle, Assistant Professor at Copenhagen Business School, Denmark, Peter Møgelvang-Hansen, Professor of Commercial Law at the Copenhagen Business School, Denmark
- Edited by Piotr Machnikowski
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- Book:
- European Product Liability
- Published by:
- Intersentia
- Published online:
- 15 December 2017
- Print publication:
- 02 August 2016, pp 155-172
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Summary
SOURCES OF LAW AND THEIR EVOLUTION
DANISH LAW BEFORE THE PRODUCT LIABILITY DIRECTIVE
The original Danish rules on product liability constituted a rather simple system. The liability of producers and suppliers for physical damage caused by dangerous/defective products was based on fault/negligence (culpa) following the ordinary principles of Danish judge-made tort law. A special feature was a court-developed principle of professional suppliers’ vicarious liability for product liability incurred by a previous link in the chain of production or distribution. The main justification for this principle is generally sought in the fact that the supplier is usually in a better position than the injured party to influence and to seek recourse against the producer and other previous links in the chain of distribution.
The principles mentioned above are based on (non-statutory) tort law and have no counterpart in sales law. Personal injury and damage caused to property (other than the defective product itself) are outside the scope of the seller's liability for breach of contract. This is not stipulated explicitly in any of the provisions of the Sale of Goods Act (from 1906) but has been and still is the way the Act is interpreted based on the travaux préparatoires of the Act. An exception to this, concerning damage to the buyer's property, is found in international non-consumer sales, see CISG arts 5 ff.
IMPLEMENTATION OF THE PRODUCT LIABILITY DIRECTIVE
In order to maintain the pre-existing rules as far as possible and going no further than required by the Directive, the Danish rules implementing the Directive were added ‘on top’ of the existing non-statutory rules. Thus, the 1989 Danish Product Liability Act (PLA) introduced the Directive's strict (no-fault) defect liability for the ‘producer’ (with a development risk defence) and codified the pre-existing principle of professional suppliers’ vicarious liability for product liability incurred by a previous link in the chain of production and distribution.
11 - The Nordic tradition: application of boilerplate clauses under Danish law
- from PART 3 - The applicable law's effects on boilerplate clauses
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- By Peter Møgelvang-Hansen, Copenhagen Business School
- Edited by Giuditta Cordero-Moss, Universitetet i Oslo
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- Book:
- Boilerplate Clauses, International Commercial Contracts and the Applicable Law
- Published online:
- 11 April 2011
- Print publication:
- 17 March 2011, pp 233-253
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Summary
Danish contract law in general
Denmark has no civil code but rather a variety of fragmentary statutes dealing with some special types of contract. The two central pieces of legislation in the area, købeloven (the Sales of Goods Act) and aftaleloven (the Contracts Act), date back to 1906 and 1917, respectively. New provisions protecting consumers have been added to the two Acts, but otherwise, with a few exceptions, they both look as they did when they were first enacted. These old Acts are some of the finest examples of the legislative cooperation between the Nordic countries in the first half of the twentieth century.
When Denmark joined the 1980 United Nations (Vienna) Convention on Contracts for the International Sale of Goods (‘CISG’), the veneration for the two old Acts and the Nordic tradition was great and embodied in the fact that Denmark did not join the Convention's Part II (Formation of the Contract) and that Denmark and the other Nordic countries invoked the so-called ‘neighbouring country reservation’. The effect of the latter is that, according to the general rules on the conflict of laws, the national Sales of Goods legislation applies to inter-Nordic sale contracts.
The special status of the old (no longer joint) Nordic Sales of Goods Act from 1906 is also embodied in the fact that it is a general assumption in Danish legal theory and practice that, by and large, the Sales of Goods Act reflects the non-statutory, general principles of contractual obligations and thus that the rules of the Act, with a few exceptions consisting mainly of rather ‘technical’ rules, are an important paradigm for the default rules applicable to those types of contracts that are non-statutory, for example, most service contracts and the purchase of real property.