SOURCES OF LAW AND THEIR EVOLUTION

DANISH LAW BEFORE THE PRODUCT LIABILITY DIRECTIVE

The original Danish rules on product liability constituted a rather simple system. The liability of producers and suppliers for physical damage caused by dangerous/defective products was based on fault/negligence (culpa) following the ordinary principles of Danish judge-made tort law. A special feature was a court-developed principle of professional suppliers’ vicarious liability for product liability incurred by a previous link in the chain of production or distribution. The main justification for this principle is generally sought in the fact that the supplier is usually in a better position than the injured party to influence and to seek recourse against the producer and other previous links in the chain of distribution.

The principles mentioned above are based on (non-statutory) tort law and have no counterpart in sales law. Personal injury and damage caused to property (other than the defective product itself) are outside the scope of the seller's liability for breach of contract. This is not stipulated explicitly in any of the provisions of the Sale of Goods Act (from 1906) but has been and still is the way the Act is interpreted based on the travaux préparatoires of the Act. An exception to this, concerning damage to the buyer's property, is found in international non-consumer sales, see CISG arts 5 ff.

IMPLEMENTATION OF THE PRODUCT LIABILITY DIRECTIVE

In order to maintain the pre-existing rules as far as possible and going no further than required by the Directive, the Danish rules implementing the Directive were added ‘on top’ of the existing non-statutory rules. Thus, the 1989 Danish Product Liability Act (PLA) introduced the Directive's strict (no-fault) defect liability for the ‘producer’ (with a development risk defence) and codified the pre-existing principle of professional suppliers’ vicarious liability for product liability incurred by a previous link in the chain of production and distribution.