Liability for Products English Law, French Law, and European Harmonisation

by Whittaker, Simon

• ISBN13: 9780198256137
• ISBN10: 0198256132
• Format: Hardcover
• Copyright: 2005-12-01
• Publisher: Oxford University Press

Summary

The EU is active in attempting to harmonize the law of product liability and the sale of goods to consumers, with the aim of promoting fair competition, aiding the internal market, and protecting consumers. But how do the resulting laws relate to existing national laws of liability and compensation? This comparative work considers the French and English laws governing all those who may be liable for products: their producers, their suppliers, their users, and their regulators. It is a revealing case study in the harmonization of laws in Europe, in an area which cuts across the traditional boundaries of private law, public law, and criminal law.

Author Biography

Simon Whittaker is Fellow and Tutor in Law at St. John's College, and Reader in European Comparative Law at the University of Oxford.

Table of Contents

Abbreviations	xvii
Table of Cases	xxix
Table of Legislation	xlix
General Introduction	1	(18)
The Starting Point for this Study	1	(4)
`Liability for Products'	5	(5)
The relative attractiveness of claiming against different defendants	6	(3)
Recourse between potential defendants	9	(1)
Broadening the Investigation Further	10	(4)
The Limits of the Study	14	(1)
The Structure of the Work and its Treatment of the Material	15	(4)
PART I CIVIL LIABILITY IN RESPECT OF THE MANUFACTURE, SUPPLY OR USE OF PRODUCTS APART FROM IMPLEMENTATION OF THE EC DIRECTIVES
Introduction to the Private and Public Laws of Liability in France	19	(21)
The Private Law	21	(9)
Contract	21	(2)
Delictual liability	23	(4)
The relationship between contractual and delictual liability	27	(3)
The Administrative Law of Liability	30	(3)
Administrative extra-contractual liability	30	(3)
Liability arising from administrative contracts	33	(1)
`Solidary Liability' in Private and Public Law	33	(1)
The Time Element	34	(1)
The Significance of Insurance, Social Security and Fonds de Garantie	35	(3)
How do these General Frameworks of Liability and Recourse Impact on `Liability for Products'?	38	(2)
Droit Prive: Delictual Liability for Fault and for the `Deeds of Things'	40	(23)
Defining and Finding Delictual Fault	40	(20)
The institutional context	40	(2)
The definition of la faute delictuelle	42	(4)
Establishing fault in the French civil process	46	(2)
The gathering of evidence	48	(2)
The Restricted Significance of Delictual Fault for Liability for Products	50	(2)
Liability without Fault for Harm Caused by Things	52	(1)
Who is liable?	52	(2)
Causation and attribution	54	(6)
Reform of the Law of Motor Vehicle Accidents	60	(1)
Compensation for Accidents at Work	61	(2)
Droit Prive: The Law of Sale	63	(36)
Introduction	63	(1)
Obligations d'Information	64	(5)
Liability under the Garantie Legale and its Rivals	69	(10)
`Defect'	73	(6)
The Buyer's Rights in Respect of Defects	79	(12)
Does the buyer have a right to the replacement or repair of the goods?	79	(2)
Termination, restitution and price reduction	81	(3)
Actions for damages	84	(2)
Causation and defences	86	(5)
The Bref Delai and its Avoidance	91	(2)
The Contractual Exclusion of Liability	93	(2)
Liability beyond Privity	95	(4)
The general position: actions directes and actions recursoires	96	(2)
Manufacturers' guarantees	98	(1)
Droit Prive: Liability for the Provision of Services Involving Products	99	(14)
The General Approach to Liability for the Provision of Services	99	(5)
Suppliers of products and services	100	(1)
The liability of repairers	101	(1)
Designers, advisers and certifiers	102	(2)
The Law of Construction	104	(4)
Hire of Property	108	(5)
The owner's liability to the hirer	108	(3)
Other liabilities arising in the context of hire	111	(2)
Droit Administratif and Liability for Products	113	(19)
Administrative Liability for Products Based on Fault	114	(2)
A Restrained Role for the Administrative Law of Contract	116	(2)
Dangerous Things and Activities	118	(3)
Liability in Respect of `Public Works'	121	(11)
Travaux publics and ouvrage public	122	(2)
The bases of liability for harm caused by `public works'	124	(5)
The defendants and their recourse	129	(3)
Public Services, Service Public and Liability for Products	132	(24)
The Key Distinction: `Users of a Service Public' and `Contractual Customers'	134	(2)
Liability in Respect of the Supply of Public Utilities	136	(3)
Public Transport	139	(2)
Liability for Medical Services and Medical Products	141	(15)
The liability of doctors and hospitals	142	(4)
The liability of manufacturers and pharmacists	146	(3)
The affaire du sang contamine: Part I---civil liability of the producers and suppliers	149	(2)
Legislative intervention in 2002	151	(5)
Introduction to Private and Public Liability in English Law	156	(23)
The Legal Bases of Civil Liability	156	(10)
The English Law of Administrative Liability	166	(3)
Public Contracts	169	(3)
A Crucial Unity: The Joint Liability of Tortfeasors and Contract Breakers	172	(1)
Insurance and its Practice; Social Security and Recourse	173	(6)
The significance of liability insurance in the development of liability	173	(2)
Recoupment of sums paid to primary claimants from tortfeasors	175	(4)
The Tort of Negligence, its Adjudication and its Satellites	179	(47)
The Dominance of the Tort of Negligence	179	(2)
Liability for Physical Damage	181	(2)
Liability for `Pure Economic Loss'	183	(3)
Defining Negligence	186	(19)
Negligence as a lack of reasonable care	186	(2)
The standard of care	188	(1)
Breach of duty: from jury verdicts to a judicial cost/benefit analysis	189	(13)
The relevance of crimes, statutory and other duties, and safety standards	202	(3)
Establishing Negligence: Burdens of Proof, Evidence and the Finality of Decision Making	205	(13)
The roles of the parties and of the court	205	(3)
The notion of evidence, proof and burdens of proof	208	(2)
The collection and trial of evidence	210	(4)
The finality of decisions on negligence	214	(4)
The relationship between the civil process and decisions on negligence or fault	218	(1)
Breach of Statutory Duty	218	(6)
Public Nuisance	224	(2)
The English Law of Sale of Goods	226	(41)
The Disunity of the English Law of Sale	227	(1)
The Legal Bases of a Seller's Liability	228	(22)
Misrepresentation, non-disclosure and mistake	230	(2)
Contract terms as to the quality of goods	232	(18)
Buyer's Remedies for Failures in Quality, Safety and Fitness for Purpose	250	(10)
The right to reject the goods and repudiate the contract	251	(3)
Restitution of the price	254	(1)
Damages	255	(2)
Comparative observations	257	(3)
Contractual Exclusion of Liability	260	(4)
Seller's Liability beyond Privity and Indemnity Actions	264	(3)
The English Law Governing Public Services, Private Services and Liability for Products	267	(38)
Services and Products under the `Ordinary Law'	270	(6)
Liability in respect of the supply of goods and services	271	(3)
Contracts involving buildings: tenancies and building contracts	274	(2)
The Public Supply of Gas, Electricity and Water	276	(4)
Liability to customers	276	(3)
Liability to non-customers	279	(1)
Comparisons with French law	279	(1)
The Liability of Carriers	280	(6)
The general position	281	(2)
The rejection of a strict liability for products used by carriers	283	(1)
A special vicarious liability via contract	284	(1)
Comparisons with French law	285	(1)
Medical Liability and Medical Products	286	(19)
The personal liability of medical practitioners	287	(2)
The liability of hospital authorities	289	(2)
Contractual liability and medical products	291	(1)
The liability in negligence of manufacturers and suppliers	292	(2)
The State as manufacturer and supplier of medical products	294	(5)
Comparative observations	299	(6)
PART II ADMINISTRATIVE LIABILITY FOR FAILURE TO REGULATE OR CONTROL PRODUCT SAFETY
French Law: Formal Bases of Liability and Practical `Irresponsibility'	305	(26)
Sources of French Administrative Power and Product Safety	306	(4)
Liability in the Administration in Respect of Failures in the Exercise of Product Safety Powers	310	(21)
Faute simple, faute lourde and illegality	311	(4)
The affaire du sang contamine: Part II---State liability for failures in the control of safety	315	(4)
Systemic tendencies towards the `irresponsibility' of the administration	319	(12)
English Law: Recurrent Themes and Endemic Casuistry	331	(36)
Sources of English Administrative Powers and Product Safety	332	(3)
Recurring Themes Concerning Duty of Care in Respect of the Exercise of Statutory Powers	335	(9)
The statutory context	336	(3)
The relationship between the illegality of a public body's action and the need to protect `policy decisions'	339	(1)
The relationship to `private law'	340	(3)
The distinction between persons primarily and secondarily responsible	343	(1)
The Context of the Safety of Products	344	(12)
A failure to enact appropriate rules	344	(2)
The enforcement of rules	346	(3)
Supplying information about products	349	(2)
Controlling access to or continuance in the market of a particular product	351	(3)
Choosing between regulatory responses	354	(2)
The HIV Haemophiliac Litigation and the Disclosure of Documents	356	(4)
Comparative Observations	360	(7)
PART III CRIMINAL RESPONSIBILITY FOR UNSAFE PRODUCTS AND ITS RELATIONSHIP TO COMPENSATION
Fraudes, Homicides and the Role of the Partie Civile	367	(36)
Introduction	367	(1)
The Traditional Picture and its Application to Liability for Products	368	(19)
The substantive criminal law and whom it governs	369	(11)
The role of the partie civile	380	(7)
Reform, Complexity and Uncertainty	387	(7)
Making criminal fault more subjective	387	(1)
Protecting `public decision makers'---and some others	388	(6)
The Affaire du Sang Contamine: Part III---Criminal and Constitutional Dimensions of Product Safety	394	(7)
The first stage: proceedings against the officers of the National Blood Transfusion Centre in the ordinary courts	395	(3)
The second stage: proceedings against government ministers	398	(2)
The third and final stage: thirty defendants discharged by the Cour d'appel of Paris	400	(1)
Conclusion	401	(2)
English Law: Crime, the Criminal Process and `Essentially Civil Claims'	403	(28)
The Substantive Criminal Law and Product Safety	404	(15)
Offences special to the product context	405	(2)
Offences not special to the product context	407	(9)
The defendants	416	(2)
Concluding remarks	418	(1)
The Criminal Process and Compensation for Personal Injuries or Death	419	(12)
The decision to prosecute and the role of the victim	419	(3)
Practical disincentives for private prosecution	422	(1)
The restrained use of powers of the criminal courts to order compensation	423	(8)
PART IV THE EC PRODUCT LIABILITY AND THE CONSUMER GUARANTEES DIRECTIVES AND THEIR IMPLEMENTATION IN FRENCH AND ENGLISH LAW
The Creation and Maintenance of the EEC Directive on Liability for Defective Products and the Process of its Implementation in the UK and France	431	(45)
Creating and Maintaining the Product Liability Directive	431	(19)
From European Convention to European Directive	431	(5)
The EEC competence for the Product Liability Directive and its lasting significance	436	(4)
The European Court's decisions of 2002: `complete harmonisation' and its exceptions	440	(4)
Review and reform of the Product Liability Directive	444	(6)
The Process of Implementation of the Product Liability Directive in French Law	450	(15)
How the Product Liability Directive looks to French lawyers	451	(1)
Abortive attempts at legislative implementation	452	(3)
`Implementation' of the Product Liability Directive by the Cour de cassation	455	(2)
The loi of 1998 and its correction by the loi of 9 December 2004	457	(4)
The present status of earlier French jurisprudence	461	(4)
The Process of Implementation of the Product Liability Directive in English Law	465	(11)
The legal and political debate	465	(3)
The form of the legislation and its relationship with other English law	468	(6)
Consumer safety, civil liability and the European Court's decisions of 2002	474	(2)
A Closer Look at the Product Liability Directive	476	(54)
`Product'	476	(5)
The Standard of Liability: Defect, Fault and Development Risks	481	(21)
Defect and fault	481	(13)
The development risks defence	494	(8)
Claimants and Recoverable `Damage'	502	(7)
The European Court's decision in Veedfald v Arhus Amtskommune	503	(4)
`Non-material damage'	507	(2)
`Caused by a Defect in his Product'	509	(5)
Defendants and Defences	514	(13)
Acting in the course of business, public bodies and `putting the product into circulation'	515	(6)
The different categories of defendant in article 3	521	(6)
Time Restrictions on Claiming	527	(3)
The Patterns of Liability	530	(35)
French Law	531	(22)
The impact of implementation of the 1985 Directive on producers, importers and suppliers	531	(7)
Liability for products beyond the Directive's defendants	538	(8)
`Solidary liability' and the potential for recourse	546	(7)
English Law	553	(10)
The impact of implementation of the 1985 Directive on producers, importers and suppliers	553	(3)
Liability for products beyond the Directive's defendants	556	(1)
`Joint and several liability' and the means of recourse	557	(6)
The Product Liability Directive's Purposes and Harmonisation	563	(2)
The Consumer Guarantees Directive and its Implementation in French and English Law	565	(66)
Introduction	565	(1)
Broad Differences between the Product Liability and Consumer Guarantees Directives	566	(8)
The purposes of the Directives	567	(1)
The parentage of the Directives' provisions	568	(4)
The imposition of `liability' and its remedial expression	572	(1)
Problems of integration within national laws	572	(2)
Implementation in French Law: Wider Reform on a European model?	574	(9)
The Working Group's proposals	575	(1)
The areas of disagreement	576	(6)
The outcome of the arguments and the eventual implementing legislation	582	(1)
English Law: Implementation but Semi-integration	583	(6)
The constitutional role of government in implementation of the Directive	584	(1)
The consultative process and the technique of implementation	585	(2)
`Scissors and paste' rather than `copy-out'	587	(2)
A Closer Look at the Consumer Guarantees Directive and its Relationship to French and English Law	589	(38)
Initial definitions	589	(2)
The basis of liability: `contractual non-conformity'	591	(13)
The buyer's rights	604	(15)
The time within which claims must be made or brought	619	(3)
Protection of the buyer's protection	622	(2)
Beyond the parties to the consumer contract of sale	624	(3)
Concluding Remarks	627	(4)
PART V GENERAL CONCLUSION
General Conclusion	631	(36)
The Two Directives Contrasted	631	(1)
Fault and No Fault	632	(8)
Judicial Institutions, Legal Procedure and Legal Substance	640	(8)
Facts and laws	640	(3)
Substantive law and legal process	643	(2)
Law, facts and the legal characterisation of facts	645	(2)
The EU dimension to law and fact	647	(1)
Public Law and Private Law	648	(3)
Public Law, Criminal Law and Civil Law	651	(3)
European Legislation, National Laws and Implementation	654	(5)
European Harmonisation and Law Reform	659	(7)
A Series of Contrasts	666	(1)
Index	667