Sources of lawProduct liability statutes
Is there a statute that governs product liability litigation?
The statutory provisions governing product liability are found in section 1245 et seq of the Civil Code, adopted by Law No. 98/389 of 19 May 1998 (which implemented Directive 85/374/EEC of 25 July 1985 (the Product Liability Directive)). This Law introduced the strict liability of the producer, which is likewise applicable in the case of a claim ex contractu or ex delicto. Pursuant to this, the victim must prove the existence of a defect and a causal connection between the default and the incurred damages.
Section 1245-17 of the Civil Code leaves the decision regarding the basis for claim to the victim who may choose to rely on several bases for claim, under the condition that the victim respects the general principle of non-accumulation between contractual and tortious liability. However, the provision of section 1245 et seq of the Civil Code does not apply to those products brought into circulation prior to 1998, to which only the provisions of the general law are applicable (contractual or tortious liability).
The victim also has the right to base its claim against the seller or producer on regular contractual liability (sections 1231-1 and 1641 et seq of the Civil Code). French jurisprudence considers that the contractual action is transmitted as an attachment to the product to the different buyers. The end user is entitled, according to French internal law, to act against each distributor in the distribution chain as well as against the producer directly (Court of Cassation plenary assembly 7 February 1986).
A limit has, however, been established concerning the non-homogeneous chains of contracts, especially for outsourcing. Without contractual links between the owner and the outsourcer, the action is necessarily a tort action, according to the general principle of contract relativity (Court of Cassation plenary assembly 12 July 1991). Nevertheless, it has been judged that, even if the claim is based on a tort action, a contractual breach can be claimed since a damage was caused (Court of Cassation plenary assembly 6 October 2006).Traditional theories of liability
What other theories of liability are available to product liability claimants?
It is necessary to draw a distinction between the theories stipulated by the legislator and those that have been elaborated by jurisprudence.Contractual liability pursuant to section 1641 et seq of the Civil Code
This right may solely be applied in a contractual context; therefore, the victim must be a contracting party with respect to the person it makes charges against (manufacturer, producer or seller). The victim must produce proof of the latent defect, proof that the defect existed before the purchase and proof of the causal connection between the default and the incurred damages. Nevertheless, the claimant is entitled to base its claim on a different section (eg, section 1242 or 11245 et seq of the Civil Code); however, it has to respect the general principle of non-accumulation between contractual and tortious liability.Liability in tort pursuant to section 1242 of the Civil Code
These provisions derive from the general law (general liability regarding property). Should this provision be applied, the liable person is the one who had ‘the possibilities to use, to direct and to control’ (Cass Ch Réunies, 2 December 1941, Franck) the property at the moment the damage occurred. Even if the victim claims the manufacturer’s liability since the product was in its custody, he or she still has to prove the structural defect of the product. Thus, if the reason for the damage cannot be determined a priori, the manufacturer’s liability does not come into consideration. However, should a doubt remain with respect to the origin of the damage, the jurisprudence tends to presume that the damage can be attributed to the structure of the product.Jurisprudence
Victims basing their claim on the guarantee of latent defects may refer to the manufacturer’s failure to observe its duty of care in accordance with section 1231 of the Civil Code. This duty obliges manufacturers and sellers to provide ‘products that are compliant with the security one may legitimately expect’ (Cass 1st civ, 3 March 1998).
In a contractual context, the jurisprudence has provided the purchaser who suffered damage in connection with the purchased product with the possibility of referring to the supplier’s failure to comply with its duty to inform. Thus, it has become obligatory for the supplier to provide such information (eg, by providing a note). This duty to inform also applies to products that are harmless (Cass 2nd civ, 27 April 1977), but will be applied more strictly as the possibility of danger arising from a product increases (Cass Com, 3 January 1977).Consumer legislation
Is there a consumer protection statute that provides remedies, imposes duties or otherwise affects product liability litigants?
Section L221-1 of the French Consumer Protection Statute obliges businesses to observe a general duty of care regarding products and services: ‘products and services must, under normal conditions of use or under other conditions of use generally foreseeable by a professional, comply with the safety requirements one may legitimately expect and must not be hazardous to anyone’s health’.
Section L221-1-2 obliges the responsible business that brings a product into circulation to provide the consumer with the necessary information to assess the inherent risk of the product if these risks are not perceptible at the moment of purchase. Further, it must adopt the necessary measures to keep the consumer informed of the inherent risks of the product and take the necessary actions to control the risks (eg, recall the product, warn consumers).
Section L221-1-3 specifies that, if a business is aware that its product is not in compliance with the requirements set forth in section L221-1 of the French Consumer Protection Statute, it must inform the competent administrative institutions and specify the measures it intends to take to avoid risks for consumers. This is a duty to inform, which is applicable if a risk appears after the product was brought into circulation.Criminal law
Can criminal sanctions be imposed for the sale or distribution of defective products?
The victim may claim ascertainment of the liability under criminal law for the manufacturer, the producer or the seller of the defective product. This parallel criminal claim can be based on several reasons:
- the criminal offence of endangering a third party: section 121-3 of the French Criminal Code establishes a criminal liability should a person deliberately endanger any third party. It applies in the case of any producer bringing a product into circulation that it knows to be defective or that it does not retrieve from the market after the defect has emerged. It likewise applies in the case of a failure to act or imprudence or negligence on the part of a party that might have contributed to the distribution of the defective product. The provisions oblige everybody (manufacturers, as well as distributors) to immediately stop the sale of the product that appears to be defective and to carry out the necessary measures to recall the defective product;
- criminal assaults: section 221-6 of the Criminal Code establishes several unintentional elements of a crime in cases of injury to the life, body or health of a person (eg, bringing toxic comestible goods into circulation);
- fraud: section L213-1 of the French Consumer Protection Statute generally imposes liability on sellers who try to mislead their contracting partner with respect to the qualities and risks of the product; and
- misleading advertising: any seller who does not provide its clients with products complying with the offer for sale it advertised exposes itself to the penalties set forth in section L121-1 of the French Consumer Protection Statute.
The criminal assault can concern the company itself and not only the physical person.Novel theories
Are any novel theories available or emerging for product liability claimants?
Such a framework exists with respect to buildings under construction. Section 1792-4 of the Civil Code imposes a warranty on the manufacturer if it has provided a work, a part of a work or an element of equipment designed and produced for meeting precise and predetermined requirements when in working order.
To hold the manufacturer liable, it is necessary that the hiring party made use of the work without modification and in compliance with the directions of the manufacturer. The manufacturer must have clearly enunciated the operation instructions and the characteristics of the product. (The term ‘manufacturer’ also applies to persons importing a work, a part of a work or an accessory part produced abroad, and those who offer the product as their own work by selling it under their name, their brand or any other distinctive feature.) Further, manufacturers may be held responsible on the grounds of the general law concerning the sale (eg, guarantee regarding latent defects, application for an exemption and additional duty to provide a caution notice).
The subcontractor’s liability is different from the manufacturer’s; its liability can only be based on section 1245 of the Civil Code.Product defect
What breaches of duties or other theories can be used to establish product defect?
The defendant may be confronted with various breaches of duty:
- breach of the manufacturer’s or seller’s duty to inform;
- where the product does not comply with the stipulations of the agreement;
- in cases of latent defect, if it can be proved that the defect existed before the purchase of the product; and
- if the product does not comply with the safety standards one can lawfully expect (however, if the product was delivered with a notice expressing a warning with respect to the handling of the product and providing precautions to be taken, this argument does not apply).
By what standards may a product be deemed defective and who bears the burden of proof? May that burden be shifted to the opposing party? What is the standard of proof?Lack of safety
Defined in the Product Liability Directive and implemented in section 1245-3 of the Civil Code, ‘[a] product is defective within the meaning of this Title where it does not provide the safety which a person is entitled to expect’. The victim bears the burden of proof, pursuant to section 1245-8 of the Civil Code; it must prove that the product emerged as atypically dangerous. The manufacturer may discharge itself by proving that the defect did not exist when the product was put into circulation. In addition, the danger emerging from the product itself does not allow the conclusion that the product is defective (eg, tobacco). However, the judge will not hesitate to base his or her decision on a presumption of facts (section 1382 of the Civil Code) to assume an existing defect; this procedure facilitates the victim’s burden of proof.Lack of conformity
This applies when the delivered product does not comply with the characteristics of the product that were stipulated in the agreement. The purchaser bears the burden of proof.Latent defect
This applies when the product is unfit for the use for which it was intended (section 1641 of the Civil Code). This is often an inner defect of the product (eg, a manufacturing defect in a machine). Since the defect is not visible, the victim bearing the burden of proof has to prove it by means of inspection. In the case of damage because of an unknown reason, it is assumed that the product that is the origin of the damage is necessarily flawed (Cass 2nd civ, 2 December 1992).Duty to inform
This is a collateral obligation of the seller. The jurisprudence of the Court of Cassation obliges the manufacturer or seller to provide the proof that they have discharged their duty to inform. Therefore, the manufacturer has to produce an instruction label as well as a warning regarding the dangers of the product.Safety obligation
The manufacturer must deliver a product free from defects and fulfil its safety obligation. Thus, in the case of a defect, its liability is assumed. However, the safety obligation is not unlimited; it is limited to the delivery of the products that, used in compliance with the recommendations provided by the distributor, do not normally present any danger when used.
Section 1242 of the Civil Code sets out liability for damage or injury caused by objects in one’s care. Should damage be caused by objects, the person who has these in his or her custody is responsible for the damage. The victim bears the burden of proof.Possible respondents
Who may be found liable for injuries and damages caused by defective products? Is it possible for respondents to limit or exclude their liability?
Distinctions have to be drawn between general and specific legislation in this regard.General law (sections 1242 and 1641 et seq of the Civil Code)
French jurisprudence construes these notions extensively and holds all businesses that intervened at any time (namely, from the design and development of the product, through to the bringing of the product into circulation, until the retail sale) liable for defective products. Thus, it concerns the following parties:
- distributors; and
Special law (section 1245 et seq of the Civil Code)
While the producer is the principal, section 1245-5 of the Civil Code also catches those who present themselves as the producer by putting their name, trademark or other distinguishing feature on the product, and those who import a product into the European Union for sale, hire (with or without a promise of sale) or any other form of distribution. The following are considered to be producers:
- manufacturers of industrial products;
- companies providing power supplies;
- farmers; and
This provision can be construed extensively and thus includes the suppliers, as provided under section 1245-6 of the Civil Code. In the (hypothetical) case that the manufacturer cannot be identified, it is stipulated that the seller or the hirer are liable for the lack of safety of a product, unless they identify the supplier or the producer within three months of the reception of the request regarding the victim’s claim.Causation
What is the standard by which causation between defect and injury or damages must be established? Who bears the burden and may it be shifted to the opposing party?
The purchaser bears the burden of proof regarding the causal relationship between defect and damage. This onus of proof cannot be reversed.Post-sale duties
What post-sale duties may be imposed on potentially responsible parties and how might liability be imposed upon their breach?
Sections L221-1-2 and L221-1-3 of the French Consumer Protection Statute stipulate such an obligation once the sale has been effected (eg, recall from the market, information provided to customers and the competent administrative institutions).