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Product defects

How is a 'product defect' defined in your jurisdiction?

Article 6:186, Paragraph 1 of the Civil Code stipulates that 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 presentation of the product;
  • the use to which it could reasonably be expected that the product would be put; and
  • the time when the product was put into circulation.

Dutch case law gives further guidance on this notion of defect. For example, case law attaches importance to the producer's obligation to warn its consumers – if consumers are not warned sufficiently, there are appreciable consequences for the producer's liability. The Dutch courts have also held that reasonable use includes reasonably expectable improper use.

Causation and burden of proof

How is causation of loss or damage established in relation to product liability claims and where does the burden of proof lie? Can this burden be shifted in any way?

In general, the party claiming damages bears the burden of proof (Article 150 of the Code of Civil Procedure). However, in some circumstances the courts have lessened the burden on the claimant or shifted it to the defendant. In principle, the injured party must prove the causal relationship between the fault or defect and the damage (see also Article 6:188 of the Civil Code). In the event of alternative causality, the burden of proof reverses: where the damage may have resulted from two or more events, for each of which a different person is liable, and it has been established that the damage arose from at least one of these events, the obligation to repair the damage falls on each of the persons. A person will not be obliged to repair if he or she proves that the damage was not the result of an event for which he or she is liable (Article 6:99 of the Civil Code). The Supreme Court judgment of October 9 1992 (NJ 1994/535, AA 1993, p 123 (DES)) held that Article 6:99 of the Civil Code applies to the old product liability regime. It is unclear whether this reversal is compatible with the EU Product Liability Directive.

Legal bases for claims

On what legal bases can a product liability claim be brought?

Injured parties can base the manufacturer's liability on the grounds of:

  • the strict liability system of the Product Liability Act found in Articles 6:185 to 6:193 of the Civil Code (implementation of the EU Product Liability Directive);
  • contractual liability (Article 6:74 of the Civil Code and certain laws governing specific subjects (eg, Articles 7:24 (consumer sales) and 6:77 (liability for things used that are unfit for purpose) of the Civil Code)); and
  • tort-based liability (Article 6:162 of the Civil Code). 

Criminal liability

Can a defendant be held criminally liable for defective products?

The supply of defective products is a criminal offence under the Economic Offences Act. Under the act, producers that fail to take appropriate action when it appears that their products are defective could be penalised.

Liable parties

Which parties can be held liable for defective products?

A producer or anyone that might appear to be a producer may be liable for supplying a defective product. Article 6:187, Paragraph 2 of the Civil Code defines a ‘producer’ as including:

  • the manufacturer of the finished product, raw material or other component parts;
  • a person who presents himself or herself as the producer of the product;
  • an entity that puts its name, trademark or other distinguishing feature on the product; or
  • any person who imports a product into the European Economic Area for sale, hire, leasing or for any form of distribution in the conduct of commercial activity.

If the producer is unknown, the supplier may be held liable. A supplier will not be liable unless it fails to inform the injured person within a reasonable time of the identity of the producer or the person who supplied it with the product. If the party that supplied the product to the supplier is insolvent, liability will not revert to the supplier.

Duty of care in tort can rest on all persons who have caused injury to another and such parties may be liable for damages.

Limitation of liability

Can liability be excluded or mitigated in any way?

In principle, a party can exclude or mitigate its liability in a contract or in its general conditions. However, in certain cases liability cannot be excluded or mitigated. For example, the producer's liability under Articles 6:185 to 6:193 of the Civil Code may not be excluded or limited with respect to the injured person. Further, in consumer sales, the seller's liability cannot be excluded or mitigated.

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