Product liability abroad - France enacts the 1985 Product Liability
GŽrard Honig of Honig Buffat Mettetal
considers the implications of the French Act which applies to
products put into circulation after 21 May 1998
The 1985 Product Liability Directive has finally
been enacted in France. The new system is in addition to French
current positive law, and provides facilities for victims on the
one hand, as well as new exemptions from liability for
manufacturers on the other. However, the multiplication of systems
does not favour simplification.
Application of the Act
Persons concerned by the Act
The Act does not define the victims, and does not
make any distinction between them.
It merely stipulates that the system of liability
applies whether or not the victim is bound by a contract with the
manufacturer. Therefore not only the purchaser, but any person
having suffered a loss as a result of a product may take action,
whether or not he is the user and whether or not he is a trader or
an end-user. There is also no differentiation between individuals
and companies, who may both take action by virtue of the Act.
The Act places the burden of liability on the
manufacturer of the defective products.
"A manufacturer, when trading professionally, is
classified as being the manufacturer of a finished product, the
producer of raw materials, the manufacturer of a component
A manufacturer also includes any person acting in a
professional capacity who declares that he is a manufacturer, by
marking the product with his name or other distinctive sign, or who
imports a product into the European Community for the purposes of
selling it or hiring it out, with or without a contract of sale, or
any other form of distribution.
Builders are excluded from the category of
manufacturer since the legislator did not wish to alter the special
system laid down by the Civil Code. The Act does, however, apply to
sub-contractors who do not come under that special system.
The supplier (seller, lessor) is responsible for
any fault in the product's safety, under the same conditions as the
This represents a widening of liability in relation
to the Directive, which provided that a supplier would only be
assimilated with a manufacturer in the case where he had not given
the victim the manufacturer's name. The Act, however, provides that
a supplier's recourse against a manufacturer follows the same rules
as for a claim made by a direct victim, but that the supplier must
bring his suit within a year of being sued.
Products covered by the Act
The Act applies to any personal estate, even if it
is incorporated into real estate.
Products from the earth, breeding, hunting and
fishing fall within the field of application of the Act, as does
electricity. Gas and water are not mentioned. Gas should normally
be treated in the same way as electricity. As concerns water, it
can be presumed that it comes under the category of products
concerned by the Act if it is subject to industrial treatment.
With the exception of Greece, Luxembourg, Finland
and Sweden, all other EC countries have excluded agricultural
produce from the field of application of their law enacting the
Directive, as considered by Chris Hodges on page 3.
The product must be defective.
The Act defines this concept very precisely:
'A product is considered to be defective if it does
not provide the degree of safety that one has the right to
In order to judge the safety of a product, all
circumstances must be taken into consideration, in particular, the
presentation of the product, the use to which it may reasonably be
put and the date it was put into circulation.
The concept of putting into circulation.
Curiously, this concept was not contained in the
Directive, although it is a key one in the Act: a product is put
into circulation when the manufacturer voluntarily parts with it,
and a product may only be put into circulation once.
The Act provides that the seller of a good,
recently acquired by the victim may, like any manufacturer, rely on
an extinction of liability, if he can prove that it was put into
circulation more than ten years earlier. The ball is therefore in
the manufacturers' court to find ways of proving the exact date the
product was put into circulation. Apparently the concept of a sole
putting into circulation should be taken into consideration for
each component in the case of a product made up of several other
products. As a result, there is a risk that a complex product may
be the object of suits brought at varying dates, according to the
date each component was put into circulation by its
The application of the Act is wider than the
Directive: the Act adopts neither the deductible of 500 ECU, nor
the distinction between goods intended for private or professional
use, except with regard to clauses limiting or excluding
Repairable damage is defined under the Act as a
loss resulting from injury to a person or damage to a good, other
than the product itself, that is to say not only mental suffering
arising from bodily injury but also consequential financial loss
such as loss of revenue or profits as a result of a damaged good.
However, purely intangible loss not resulting from material damage
remains outside the scope of the Act.
Application of the Guarantee
Coexistence of the new system of liability with
The Act does not affect victims' rights under
contractual or extra-contractual law, or under a special system of
liability. Victims may thus choose between a system of liability
arising from the Directive or traditional system of liability. The
Act provides that the manufacturer is liable for its faults and for
those committed by persons for whom it is responsible.
Manufacturers now bear a dual liability: one for liability without
fault as discussed below, in addition to traditional liability for
The system of legal liability
The Act lays down the principle of manufacturers'
liability without fault whereby liability arises from the sole fact
that a defect in the manufacturers' product caused damage to a
victim. This is called the system of objective liability. The
victim has the duty to evidence the damage, the defect, and the
causal link between the defect and the damage, and a manufacturer
may only be exempt from this very heavy responsibility by supplying
- the manufacturer had not put the product into circulation: he
did not part with it voluntarily in order to sell it;
- the defect did not exist at the time the product was put into
- the product was not intended for sale, or any other form of
- the state of scientific and technical knowledge at the time the
product was put into circulation did not enable discovery of the
defect (except when damage is caused by a factor of the human body
or by-products of the human body).
However, a manufacturer may not rely on this ground
for exemption or the next one if, "in the presence of a defect
which is discovered within 10 years of the product being put into
circulation, it has not taken the appropriate measures to prevent
damaging consequences". This instigates an obligation to follow up
a product after it has been put into circulation.
- The defect is due to the conformity of the product with
legislative or regulatory norms.
The Act provides that manufacturers may be
responsible for the defect even if the product has been made in
conformity with industrial standards or existing norms, and this
stipulation merely confirms traditional case law on the subject.
The Act does, however, also provide that the manufacturer of a
component may be exempt if it can prove that the defect is
attributable to the design of the product in which the component
was incorporated, or to the instructions given by the manufacturer
of such component.
- The traditional fault of the victim must be added to these
special reasons for exemption (thereby lightening or removing the
Scope of liability and periods of
The principle of full liability
The Act does not provide for a financial cap to
liability for a manufacturer in the case of bodily injury, on the
basis that compensation is not very often limited in French
judicial tradition. Only Portugal, Germany and Spain have
introduced a financial limit to liability in their laws enacting
Limitation of liability clauses
The Act prohibits clauses whose purpose are to
exclude or limit liability arising from defective products. It
does, however, allow for such clauses in relationships between
professionals, and only for damage caused to goods which are not
Term of liability and statutory time
In conformity with the Directive, the Act
instigates a dual time limitation: a period of time after which
liability expires, simultaneously with a statutory time limitation
for bringing action.
- Manufacturers' liability expires 10 years after the product is
put into circulation.
This time limitation may only be interrupted by a
suit, which rules out the other causes for suspension or
interruption mentioned in the Civil Code. The wording stipulates,
however, that the time limitation does not count if the defect is
due to the manufacturer, which implies that after a period of 10
years, the manufacturer may be found liable on the basis of a fault
proved against it.
In practice, there will be a delay between the
putting into circulation of the product and the end-user taking
possession of it, with the result that the length of time available
to a consumer for suing the seller or the manufacturer is
shortened. It may also prove difficult for the victim, who is not
necessarily the purchaser of the product, to find out when it was
put into circulation. In addition, there will most likely be
problems in application for the incorporation of a product within
- The Act also superimposes a statutory time limit of 3 years on
the time limit for extinction of liability, which starts to run
from the date on which the plaintiff became aware, or should have
become aware, of the defect and the name of the manufacturer.
Although these time limits may seem short, the
coexistence of the common law of liability with this special system
preserves ten and thirty year time limitations, which start to run
from when the damage occurs or is discovered and not from the date
the product was put into circulation.
There exists today a multitude of systems of
liability which give rise to two types of suit:
- One type of action is based on existing systems of liability
(contract and tort law) which are characterised by longer time
limits and the absence of exemption from liability of a
manufacturer on the ground of risk of development.
- The other type is based on the new system arising out of the
Directive which, as well as providing certain facilities for
victims of a defective product (system of objective liability
without fault, removal of the distinction between contractual and
criminal liability), makes important innovations in that a
manufacturer may be exempt from liability because of the risk of
development, which was formerly not admitted in French domestic
law, and in addition there is a time limitation placed on
The French legislator wanted to preserve the rights
of the victims: however, the multiplication of systems in place
does not favour simplification or clarification of the matter.
GŽrard Honig is a partner in the firm Honig
Buffat Mettetal, 21 Rue Clement Marot, 75008, Paris, France, Tel
(04331) 44 43 88 88, Fax (00331) 44 43 88 77
The full text of GŽrard Honig's article is
available on request.