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  • Print publication year: 2016
  • Online publication date: December 2017


from Part II




The legal history of a special product liability law in Germany started with the famous Hühnerpest case of 1968. In this case a chicken farmer, the claimant, had mandated a veterinarian to vaccinate his chickens against fowl pest. The veterinarian vaccinated the animals with a serum that the defendant pharmaceutical business had produced and which for unknown reasons contained active viruses. The consequence of the vaccination was an outbreak of fowl pest. Over 4,000 chickens died. The claimant sued the defendant for compensation of his loss. Under traditional contract and tort law the claimant would have lost his case because he had no contract with the defendant and could not prove that the latter's negligence had caused the damage as is necessary under §823 (1) Bürgerliches Gesetzbuch (BGB), the central norm of German tort law. The Federal Supreme Court (Bundesgerichtshof, BGH) decided that in such cases of product liability the burden of proof must be reversed. The victim of a product defect need no longer prove that the manufacturer was at fault; the latter now has to prove that he was not. The central argument was that for the victim it is often difficult and sometimes impossible to prove detailed circumstances of production which exclusively occur in the sphere of the manufacturer who organises and controls these circumstances. The manufacturer is closer to them (näherdaran) and should therefore bear the burden to prove the absence of fault. Because in the Hühnerpest case the defendant could not prove that the product defect was not his fault and could not have happened in his factory, the claimant succeeded.

Since the Hühnerpest case many decisions have confirmed and refined this special burden of proof rule for product liability cases; since then product liability became a specifically regulated part of general tort law which already existed before the enactment of the Product Liability Act of 1989 (which implemented the EU Directive of 1985). This product liability under general tort law still continues to exist side by side with the Product Liability Act.