SOURCES OF LAW AND THEIR EVOLUTION

In 1993 the Swiss Federal Assembly adopted a Product Liability Act (LRFP). This Act was in line with the European Directive of 1985. After the modification of the Directive in 1999, and in order to also submit untransformed products of the soil, animal farming, fishing and hunting to the regime of the LRFP, the Swiss legislation was adjusted in 2009. As a result, it is now consistent with the Directive and most of the norms are identical or very close to the formulation of the Directive.

Prior to the LRFP, there was no lex specialis on product liability. Cases of product liability were submitted to the general tort law provisions of the Swiss Code of Obligations (SCO, art 41 lit f). The first Federal Court case in product liability matters seems to go back to 1923. Product liability had been anticipated by the Federal Court in two key decisions, where the producer (or provider) was held liable for damage, even if he had not committed any fault.

BASIC ELEMENTS OF LIABILITY

Liability according to the LRFP is based on the following requirements: (i) damage to the victim by a product, and (ii) a causal link between the product and the damaging event. The first condition tacitly includes unlawfulness, which is contained in the fact that damage has been inflicted. In a certain sense one could speak about unlawfulness of result (Erfolgsunrecht), which is a form of unlawfulness accepted by the Federal Court under the general tort law provision of the SCO (art 41). Like in the Directive, fault is not required. Consequently, the LRFP does not mention any particular duty of care, etc. However, a hidden form of fault can be found in art 5 al 1 lit e LRFP, which enumerates the exceptions to liability. As the producer can argue that the defect of the product could not be detected by the state of science at the time the product was put into circulation, a contrario it is admitted that the producer of a defective product had neglected the state of science.