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Introduction

Ius Commune Conference Towards a European system of Direct Producers’ Liability ? Mathias Hostens. Introduction. What is direct producers’ liability ? How can direct producers’ liability be organized ? Transfer of the claim along the chain (BE, FR, LX, (NL?))

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Introduction

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  1. Ius Commune ConferenceTowards a European system of Direct Producers’ Liability ?MathiasHostens Leuven, 26 November 2010

  2. Introduction • What is direct producers’ liability ? • How can direct producers’ liability be organized ? • Transfer of the claim along the chain (BE, FR, LX, (NL?)) • Strict liability of the producer (SPA, POR, LVA)

  3. Plan I. Direct producers’ liability in BE and NL II. Need for a European system of direct producers’ liability ? III. Model for a European system of direct producers’ liability

  4. I. Direct Producers’ Liability in BE and NL • Legal basis for the direct claim ? • BE: art. 1615 BW: theory of accessory rights • “The duty to deliver a good is extended to its accessories and all that is needed for the durable use of the good” • Cfr. art. 1649sexies BW (= confirmation of theory of accessory rights) • NL : art. 6:251 NBW: theory of qualitative rights • “If a claim arising from a contract and suitable for transfer is in such narrow connection to a good belonging to the claimant so that the claim is only of interest as long as he has ownership of the good, then the claim is transferred to the person acquiring the good under specific title” • HOWEVER … art. 7:25 NBW (pass back liability via contractual chain)

  5. I. Direct Producers’ Liability in BE and NL • Contractual nature of the direct claim • Continued effect of exoneration clauses • BE: presumption of awareness of hidden defects • NL: validity of exoneration clauses • Regime governing the direct claim • BE: dual character of sales law • NL: uniform sales law

  6. II. Need for a European system of DPL ? • Argument of justice • majority of defects originate from the production process • Passing back liability insufficient? • Insolvency • B2C ≠ B2B • Exoneration clauses → Presumption of awareness … and art. 1649sexies BW → Art. 7:25 NBW

  7. II. Need for a European system of DPL ? • Internal market argument • Distortion of competition between producers • Cut down litigation costs ? • Consumer protection

  8. II. Need for a European system of DPL ? • Arguments against direct producers’ liability: - Privity of contract - Extra burden for the producer

  9. III. Model for a European system of DPL • Two models of direct producers’ liability: • 1. Transfer of the claim along the contractual chain • 2. Strict liability of the producer towards the final buyer

  10. III. Model for a European system of DPL 1. Transfer of the claim along the contractual chain ? • Introduction of a legal concept possibly unknown to some national systems • Impossibility for the producer to introduce exoneration clauses with his immediate contract party (↔ other intermediate sellers) • Direct claim less favorable for consumer in countries where B2B contracts are still governed by other rules than B2C contracts (cfr. BE)

  11. III. Model for a European system of DPL 2. Strict liability of the producer towards the final buyer • Joint and several / alternative / subsidiary liability ? • Producers’ liability for all non conformities or only for manufactering or design defects and for public statements of the producer ?

  12. III. Model for a European system of DPL • Notion of producer ? • Manufacturer and importer into EU (ECJ C-127/04, O’Byrne) • Network liability ? • Remedies ? • Repair and replacement • Compensation for damages • Price reduction • Rescission / Full refund

  13. III. Model for a European system of DPL • Guarantee and prescription periods • Beneficiary of the direct claim • Consumers • All final buyers ?

  14. Conclusion • Directive on Consumer Rights • Full vs. minimum harmonization • (draft) Common Frame of Reference • DPL as an optional instrument ?

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