SOURCES OF LAW AND THEIR EVOLUTION

PRODUCT LIABILITY IN FRANCE BEFORE 1985

There was no specific regulation of product liability in France before the implementation of Directive 85/374/EC. The courts had managed to impose strict liability on producers and suppliers of defective products, however, using existing provisions of the Civil Code (CC).

When consumer goods started to cause a signifi cant number of accidents, most victims relied on contract law, and more specifi cally on garantie des vices cachés, in order to obtain compensation from manufacturers and/ or sellers. Garantie des vices cachés (latent defects guarantee; art 1641 ff CC) is of Roman origin and had equivalents in most continental civil codes drafted during the 19th century. The French version provides that when the buyer of a defective product discovers the defect, he has the choice between rescinding the sale or paying a discounted price. As in Roman law, this action was initially intended to remedy the insufficient quality of the thing sold, rather than its insufficient safety. However, the CC provides that when the defect causes injuries or damage distinct from a diminution in value of the thing sold, the buyer can receive damages, but only if the seller knew of the defect (art 1645 CC). This could have posed a formidable obstacle to the compensation of victims, had it not been removed by the Cour de cassation, France's supreme judicial court. In the 1960s, the Cour de cassation decided that if the seller is a dealer by profession, there is an irrebuttable presumption that he knew of the existence of the defect of the product he sold. Should the defect in the thing sold cause death, injuries or damage to the buyer, the seller is thus bound to compensate him, even if it was materially impossible for the seller to discover the defect.

In the 1960s, garantie des vices cachés thus became a major weapon in the hands of victims of defective products. They could base a claim on garantie des vices cachés, provided they had bought the damaging product.