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Summary

Introduction

For the past two centuries, French legal doctrine has tried to elaborate a comprehensive theory of nullity to remedy the absence of such a framework in the Code civil. Due to the variety of sources in the Ancien Regime, the rules regarding nullity formed an intricate whole prior to the enactment of the Code civil. Still largely inspired by those rules, the Code civil did not attempt to clarify the situation. Up until now, both in France and in Belgium, the doctrine of nullity is regarded as one of the most obscure and impenetrable theories in private law. Notwithstanding an unremitting interest in the matter, scholarship has not sufficiently demystified the concept of nullity and the way it operates in private law. The announced revision of large parts of the Code civil offers a unique chance to elucidate the matter at hand and to boldly go where the Code civil has not gone before.

This paper will scrutinise whether the ordonnance has indeed seized the opportunity. First, this paper will give a brief overview of the ordonnance's approach to nullity (2). Since the different aspects of nullity are too multifarious to deal with in a single paper, the scope of the research will be limited to the concept of nullity (3), its use (4), and its enforcement (5) in the ordonnance. As a consequence, the grounds of invalidity and the consequences of nullity (such as restitutions and potential liability connected to avoidance) will not be examined. Since the Draft Common Frame of Reference (DCFR) and the Dutch Burgerlijk Wetboek of 1992 have reconsidered the analysis of nullity, the ordonnance's propositions will be compared to those solutions in order to see whether the ordonnance offers state-of-the-art solutions. The results of those comparisons will demonstrate to what extent the ordonnance can be a source of inspiration for the further development of the Belgian and Dutch law regarding nullity.

Summary

Introduction

‘Agreements lawfully entered into have the force of law for those who have made them.’ The principle of pacta sunt servanda so famously enshrined in Article 1134, al 1, of the Code civil is regularly considered a cornerstone of French contract law – which has been repeatedly upheld by the Cour de cassation in the most uncompromising terms. Its decision to refuse any judicial intervention for imprevision to account for supervening circumstances, however severely they may have disturbed the contractual balance, is a particularly well-known example, which has made the Canal de Craponne by far the best-known waterway amongst French law students.

One of the reasons for the decision's notoriety stems from the fact that its rigour is almost unheard of in other European legal systems (arguably with the exception of Belgium). It is therefore hardly surprising that it has not only instigated a seemingly endless stream of scholarly publications and academic discussion – while also leaving room for the occasional decision to cast doubts on the court's otherwise strict adherence to the principle – but has also been addressed in all recent reform projects as well as in loi n° 2015–177 du 16 fevrier 2015, the respective projet d'ordonnance, and ordonnance n° 2016–131 du 10 fevrier 2016.

Reforming this area of law required the French legislator (who, in this case, was actually the French government) to strike a new balance between, on the one hand, the principle of pacta sunt servanda and the legal certainty that is usually ascribed to it and, on the other hand, the idea of contractual solidarity and fairness that lies at the foundation of every exception for imprevision admitted elsewhere. The controversial comments to which the proposed provision has given raise bear testimony to the difficulty of that task.

Yet, many other European systems have faced this challenge before, coming to a variety of different solutions, which has been described as ‘revealing all the difficulties of the construction of a ius commune of contract’. But the diversity of approaches does not only make imprevision one of the most interesting aspects of the French reform, especially for the present conference, the viable balance that has been found in many legal systems also seems to have provided useful guidance during the French reform process and will continue to enrich its academic discussion.

Summary

Introduction

Exiled to the desolate island of Saint Helena, Napoleon Bonaparte pondered on one September evening in 1816: “Waterloo will wipe out the memory of my forty victories; but that which nothing can wipe out is my Civil Code. That will live forever.” These thoughts have proven to be visionary. His Civil Code is not only still applicable in France, Belgium and Luxembourg, it has also influenced codifications all over the world. Now, 200 years after his dramatic defeat in the Battle of Waterloo, the law of obligations as reflected in the French Civil Code will be modernised. This modernization is necessary as the law of obligations in the Civil Code has been left virtually unchanged since its adoption in 1804. The reform will not, however, put the Code's vocation to eternity to rest. On the contrary, its purpose is rather to re-establish the prestige of the French Civil Code as the cornerstone of French private law and a model for other jurisdictions.

On 11 February 2016, just a few days before the constitutional deadline, ordonnance n° 2016–131 portant reforme du droit des contrats, du regime general et de la preuve des obligations was published. With this ordinance, the French government modified the law of obligations in the French Civil Code. The authority to modify the Civil Code was awarded by Parliament through the Loi nr. 2015–177 relative a la modernisation et a la simplification du droit et des procedures dans les domaines de la justice et des affaires interieures, which was published on 17 February 2015. This act was adopted after a long procedural stand-off between the French government and the National Assembly on the one hand, and the Senate on the other hand. Pursuant to Article 8 of that act, the French government could by ordinance change the law in book III of the Civil Code in order to “moderniser, de simplifi er, d'ameliorer la lisibilite, de renforcer l'accessibilite du droit commun des contrats, du regime des obligations et du droit de la preuve, de garantir la securite juridique et l'efficacite de la norme.”

3. Although a reform had been discussed before (Chapter 2), it would take until the turn of the millennium until the call for reform finally gained momentum.

Summary

Introduction

On 10 February 2016, the French Government's ordonnance (hereafter: the 2016 ordonnance), leading to a comprehensive revision of Book III of the 1804 Civil Code on general contract law, was published in the Journal Officiel. The new statutory rules should come into force on 1 October 2016, without the First and the Second Chambers having either amended or adopted each single provision of the revised Book III, following lengthy and stormy debates. In February 2015, the Chambers entrusted the Government with the overall reform of French general contract law. With this reform project, the French Government, more precisely the Ministry of Justice, pursued two major objectives, namely the strengthening of legal security and accessibility (respectively readability) of French contract law. General contract law is currently overwhelmingly case law based. As even the Government itself has observed, French general contract law is on many issues rather unsystematic and unclear, at least for French laymen and foreign legal observers. Regarding legal security, governmental drafters opted for a codification a droit constant, which, besides continuity of the law, secures the French legal community's agreement to the revision of Book III of the Civil Code.

The final version of Book III as enacted by the 2016 ordonnance was preceded by several governmental drafts, the latest being the 2013 draft ordonnance. The 2013 draft ordonnance was published and later submitted to public consultation by the Ministry of Justice, and was also translated into English. The 2013 draft version of Book III and the 2016 ordonnance diff er from each other. Some early comments already refer to the more conservative nature of the 2016 ordonnance. One of the changes between the 2013 draft and the 2016 ordonnance is worth singling out, since it concerns the general principles of contract law, specifically the freedom of contract and one of its opposites, fundamental rights and liberties (hereafter: FR).

Summary

“Ainsi, la variete des sanctions permet-elle l'adaptation des techniques a la diversite

des sanctions. C'est signe de richesse et de raffi nement d'un systeme juridique qui ne

se contente pas de sanctions brutales, a l'emporte-piece.”

J. Deprez

Introduction

The French Civil Code (hereinafter ‘CC’) does not (yet) recognise price reduction as a general remedy of contract law. Under French contract law the creditor has merely the choice between forced execution (primarily in kind, or subsidiary, by equivalent) and termination of the contract. However, some applications of price reduction are recognised by means of a custom (e.g. the refaction in internal commercial sales contracts) or legislation (for example Article 1644 CC: actio quanti minoris, Articles 1617 and 1619 CC, Articles 1722, 1724 and 1726 CC, price reduction under consumer sales contracts, price reduction under the Vienna Sales Convention …). All these applications can be situated in special contracts (such as sale contracts, tenancy contracts …) but do not imply a general recognition of price reduction. Nevertheless, there is a growing body of opinion that the remedy of price reduction deserves more attention. As a result of some remarkable judgements of the Court of Cassation, the question whether price reduction has to be recognised as a general and autonomous remedy has been the subject of much debate in doctrine., The influential scholar Mestre ended an overview of jurisprudence that price reduction has to be considered as “un mode d'intervention plus general, une veritable technique du droit commun des contrats”. De La Ascuncion Planes undertook in 2006 an extensive research about this topic. She considers ‘la refaction du contrat’ to be an autonomous judicial and an extrajudicial remedy. The aim of the price reduction is, according to her, to correct contractual imbalances and illegalities.

Road-map to price reduction: projet Catala, projet de la Chancellerie and projet Terré

A few years before the thesis of De la Ascuncion Planes appeared, there was a growing awareness about the modernisation of the 200-year-old Civil Code. The first attempts to modernise the Civil Code were mainly academic and prudent. The first (academic) project is called ‘Projet Catala’ of 2005 and treats the law of obligations and the law of prescription.

Summary

Introduction

Unforeseen circumstances pose one of the perennial dilemmas of private law: if due to unforseen circumstances performance becomes impracticable or even impossible, is a non-performing party then still liable out of the contract? Or might he be excused? In other words, should precedence be given to rules based on the adage pacta sunt servanda, or rather to excuses based on clausula rebus sic stantibus or other good faith principles? The French legislature clearly struggled with this dilemma in its recent adjustment of the Code civil, as can be seen from the Projet d'ordonnance of 2015 and the ordonnance no 2016–131 of 10 February 2016. Before, a seemingly endless parade of scholars, both within and outside France, discussed the current solution in the Code civil to the problem of unforeseen circumstances, but also the solutions proposed in various draft s, such as the Avant-projet Catala.

In the previous contribution to this volume, Introducing Imprevision into French Contract Law, A Paradigm Shift in Comparative Perspective, Tobias Lutzi not only analysed an impressive amount of French and foreign contemporary scholarship on – the traditional lack of – imprevision in French private law, but also assessed the current, proposed and recently adopted French solutions to commercial impracticability resulting from unforeseen circumstances. For this assessment, he compared the English, German (in particular) and the current, proposed and new French solutions to unforeseen circumstances with each other, thereby highlighting lessons to be learned from the German solution. The focus of Lutzi's comparison is mainly at a conceptual level, namely whether the systems compared offer an adequate exception to rules based on pacta sunt servanda and he argues that the German solution to the problem of unforeseen circumstances – to which the new Article 1195 Code civil will be quite similar – is to be preferred over the English, and the current and previously proposed French solutions.

The French projet d'ordonnance, which reformed contract law, the general regime of obligations and the proof of obligations appeared in February 2015. One year later, in February 2016, the final version of the ordonnance was published. The ordonnance thoroughly reforms French contract law and the law of obligations and will enter into force in October 2016.This book results from the Contract Law Workshop of the 20th Ius Commune Conference held 26-27 November 2015. The theme of this Workshop was: 'The French Contract Law Reform: a Source of Inspiration?' Since the conference in November 2015, all authors have incorporated comments on the final version of the ordonnance. Whereas Van Loock briefly sketches the antecedents and the outcome of the reform, the other authors each tackle specific topics of the reform that surprised and/or excited the legal community. Pannebakker tackles the precontractual phase and assesses the attractiveness of the reform for international commercial transactions. Peeraer gives a critical overview of the doctrine of nullity in the ordonnance. Leone explores the potential impact of the 'significant imbalance' test in the new ordonnance on employment contracts. In their contributions, Lutzi and Oosterhuis discuss the much-debated provision that introduces the theory of imprévision. The contributions by Jansen and Verkempinck are both focused on remedies: the newly introduced price reduction remedy and damages. Storme criticises the new rules on set-off in the ordonnance, and Mahé addresses the question why the final version of the ordonnance omitted the issue of interpersonal effects of fundamental rights on contractual freedom.

Summary

SOURCES OF LAW AND THEIR EVOLUTION

THE SCOPE OF THE LAW IMPLEMENTING THE PRODUCT LIABILITY DIRECTIVE

Polish product liability law is based on Directive 374/85/EEC. The Directive was implemented by the Act of 2 March 2000 on the protection of certain consumer rights, on product liability and the amendment of the Civil Code, which entered into force on 1 July 2000. The Act revised the Civil Code in respect of unfair contract terms and product liability.

No other system of compensation for losses caused by defective products or services is in place.

The product liability regime was introduced into the Civil Code as a new title VI prim (articles 4491–44911kodeks cywilny (Civil Code, CC)) in the Book on Obligations, which follows Title VI on Torts and precedes Title VII on Performance of obligations and effects of their non-performance. In spite of this ostensible separation from tortious liability, most of the common rules concerning civil liability (arts 361–363 CC), as well as the provisions governing torts, such as those on compensation of personal injuries, are applicable to product liability claims.

It should be stressed that distinguishing product liability claims from tort claims is fallacious. A product liability claim is definitely a tort claim under Polish law. This is the dominant position in the legal writings and the sole position to be found in case law. Title VI (prim) of the Civil Code, which implemented the Directive, was opted for due to the fact that it was technically more convenient to create an additional chapter in the Code than to insert several new provisions in the existing section (Title VI). Nevertheless, a minority view, represented by the authors of a major textbook on the law of obligations and other distinguished writers, states that product liability is a risk-based regime situated in between contractual and delictual liability, and should be distinguished from the ‘regular’ tort liability by the following features:

Summary

SOURCES OF LAW AND THEIR EVOLUTION

Since the enactment of the Defective Product (Liability) Law, 1980 (DPLL), one can distinguish between two sets of legal rules governing product liability in Israel. The provisions of the DPLL compose one set of rules. These rules apply to the liability of a producer for bodily injury caused by a defective product, as defined by the DPLL. The other set of rules, hereinafter referred to as the ‘general liability arrangements’ (GLA), is composed of all tort liability arrangements besides the DPLL, and of other contractual liability arrangements (including the law of sales), that apply to harm caused by products. The major tort liability arrangements of the GLA, embodied in the Civil Wrong Ordinance (CWO), are the tort of negligence and, to a lesser extent, the tort of breach of statutory duty (BSD). GLA rules may apply to all kinds of harms (including bodily injury) caused by all kinds of defective products. Consequently, the two sets of liability rules, the DPLL and the GLA, may overlap in cases of defective product causing bodily injury. The aggrieved party, the plaintiff, may sue the harm-inflicting party, the defendant, in both venues of liability. When the DPLL does not apply because the harm caused is not bodily injury or because another requirement of the DPLL is not met, the plaintiff may resort to the variety of claims available under the GLA venue.

The major difference between the liability regime in the DPLL on the one hand, and the tort of negligence as the major cause of action in tort under GLA on the other hand, is that under the former liability is, at least partially, strict liability, while under the latter it is basically fault-based. Given this difference one would expect most claims for bodily injury caused by products to be made under the DPLL because strict liability is supposedly wider in scope and easier to establish than fault-based liability in negligence. In reality, however, the following factors made the DPLL less attractive than one might expect: the complexity of the ‘defectiveness’ concept; caps in the DPLL on awards for loss of earning and for non-pecuniary harms; and shorter limitation periods.

Summary

SOURCES OF LAW AND THEIR DEVELOPMENT

Czech law did not provide for product liability prior to the adoption of an act implementing Directive 85/374/EEC. It was possible to claim product liability within the general liability regime governed by the Civil Code of 1964 (Act No 40/1964 Sb), under which everybody was liable for damage that occurred as a result of a breach of one's legal duty (see §420(1) Civil Code). I am not aware of any such claims nor of the existence of any relevant case law. Such claims would therefore be raised only exceptionally, if at all.

The Directive was firstly implemented by Act No 59/1998 Sb on Product Liability, which came into force on 1 June 1998 – six years prior to the accession of the Czech Republic to the EU in 2004. Act No 59/1998 Sb was amended by Act No 209/2000 Sb, with a date of effect of 1 September 2000, to reflect further amendments of the Directive itself.

Both the formal and material characteristics of Act No 59/1998 Sb strongly resembled the Directive. It was divided into 12 sections and elements of liability governed by Act No 59/1998 Sb constituted an autonomous regulation, which resembled a regulation contained in the Civil Code, yet remained separate and distinctive.

A major change was brought about by the adoption of the new Civil Code (Act No 89/2012 Coll) that repealed Act No 59/1998 Sb and provided for product liability in provisions governing non-contractual liability. Thus product liability was made equal to other material elements of delictual liability such as liability for damage caused by movables or immovables. The Civil Code contains only five sections, whereas basic elements of liability are provided for in general provisions. It follows the Directive only loosely and its implementation is partially inaccurate. It provides only for derogations from a general liability regime for product defects. This is a major difference from the previous regulation, which also stipulated basic elements of liability.

Summary

Canada is a constitutional federation whose Head of State is Queen Elizabeth II. Despite the Conquest of New France by the English (1759–1760), crystallised by the Treaty of Paris in 1763, French-derived private law was reintroduced in the Province of Quebec, for strategic reasons, on the occasion of the Quebec Act (1774). This compromise – public law remained anchored in the common law tradition – was reiterated on the occasion of Canada's foundational Constitutional Act (1867), by virtue of which ten provinces retain competence over private law matters and property, including the legal basis for liability or procedural requirements (such as time limits, class actions and the like). From a constitutional standpoint, this situation is fragmented, as the field is indeed of a provincial nature, albeit increasingly shaped by federal and provincial legislation. Despite judicial deference to the stare decisis principle and obvious receptiveness to persuasive authority, Canada's constitutional aesthetics, as mentioned, explain the various discrepancies between the nine common law provinces themselves. The blending of the civil law and the common law traditions, too, adds to the complexity of the Canadian legal framework: in Quebec, the coexistence of both legal traditions is particularly visible in the field of personal injury damages and product liability, whereby the circulation of French, English, American and EU models influenced Quebec's Civil Code (CCQ) and Code of Civil Procedure,3 among other pieces of legislation.

Both Canadian common law (which resisted the strict liability American tsunami) and Quebec's civil law (which never embraced the categories of culpa levis, culpa levissima and culpa lata originating in Roman law) can be said to be sui generis4 when compared to their historical contexts. This characteristic has, over the years, been marked by a phenomenon of osmosis between the civilist tradition and the influence of North American common law. In addition, some provinces’ personal injury framework – such as that of Saskatchewan or Quebec – have also been shaped by socialist political influences that supported, after the 1970s, the creation of a Swedish-style no-fault compensation scheme for automobiles. Along with widely adopted workers’ compensation statutes, these statutory regimes have led to the cross-fertilisation of private law and administrative law in awarding damages, further eroding, specifically in Quebec, the centrality of its Civil Code.

Summary

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.

Summary

SOURCES OF LAW AND THEIR EVOLUTION

LEGAL REGIMES APPLICABLE TO LIABILITY FOR DEFECTIVE PRODUCTS BEFORE THE IMPLEMENTATION OF DIRECTIVE 85/374/EEC IN SPAIN

Before the implementation in Spain of Directive 85/374/EEC, the problems relating to civil liability for damage caused by defective products were resolved by applying three possible sources of law: general rules of liability for breach of contract (arts 1486 ff CC and arts 1101 ff CC); general tort law rules (arts 1902 ff CC); and, from 1984 on, the provisions contained in Act 26/1984, of 19 July, the General Act for the Defence of Consumers and Users. The entry into force of the European Directive and its implementation in the 1994 Products Liability Act, which in 2007 was recast in arts 128–176 of Royal Legislative Decree 1/2007 of 16 November, Approving the Consolidated Text of the General Consumer and User Protection Act and Other Complementary Laws (TRLGDCU-2007), does not preclude the application of most of these rules, the compatibility of which recognises art 13 Directive and current art 128.2 TRLGDCU, according to which actions for damage arising from the Directive ‘do not affect the injured party's other rights to be compensated for damage, including pain and suffering, as a consequence of contractual liability, on the grounds of the lack of conformity of goods or services or any other cause of non-performance or defective performance of the contract, or of any non-contractual liability which may apply’. The only limitation is (as will be discussed infra no 09 ff) incompatibility between the rules laid down in the Directive and former arts 26–28 of Act 26/1984, establishing a special liability regime for damage caused by defective products, which was different from the regime provided for in the Directive. The ECJ recognised that these domestic provisions could not be applied after the entry into force of the European Directive in Spain (María Victoria González Sánchez v Medicina Asturiana SA (on this issue in more detail, see infra no 09 ff).

Summary

SOURCES OF LAW AND THEIR EVOLUTION

LIABILITY FOR DEFECTIVE PRODUCTS BEFORE THE ADOPTION OF THE PRODUCT LIABILITY ACT

Austrian tort law is traditionally fault-based. Exceptions thereto have been introduced over time, and unlike other European jurisdictions, Austrian courts also grant claims based on a mere analogy to such statutory bases of strict liability, even to the totality of such causes of action, though rather cautiously. However, before the introduction of the Produkthaft ungsgesetz (PHG), no statutory regime was in force which would have held the producer (or anybody else) liable for the defects of a product irrespective of fault.

Fault-based causes of action apart from intentional wrongdoing include in particular neglect of statutory safety regulations or lack of warnings despite awareness of security risks. The latter was recently confirmed in a case concerning an exploding mineral water bottle, where the Austrian Supreme Court inter alia granted a fault-based cause of action against the producer for failure to monitor products which after putting them into circulation turn out to be dangerous (possibly triggering recall obligations). The rationale for such duties was found in the so-called Ingerenzprinzip, which is well-established in Austrian tort law: whoever creates or controls a source of danger is obliged to invest reasonable efforts into avoiding that such risk materialises.

The Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) contains at least one major obstacle, however, that prevents victims of defective products from pursuing tort-based claims against the manufacturer on the basis of a product defect if she did not violate a duty of care herself individually: liability for auxiliaries in Austrian tort law is very limited – outside of contractual or other special relationships, the principal can only be held liable for harmful conduct of her auxiliaries if these were either habitually unfit for the task assigned to them, or if the principal knew that they are dangerous, ie that they are likely to cause harm due to peculiar personal features (§1315 ABGB). Apart from products manufactured by a single individual, this makes it almost impossible in practice to pursue claims in tort law against a producer that employs staff.

Summary

SOURCES OF LAW AND THEIR EVOLUTION

A distinction should be made, firstly between contractual and delictual product liability, and secondly, within these two areas, between common law and statutory product liability.

Under the common law, product liability ex delicto is clear. The courts deal with product liability under the Aquilian action. Its ordinary requirements must thus be satisfied. Accordingly, all the elements of a delict, that is conduct, wrongfulness, fault, causation and damage, must be present for delictual liability to ensue. As the law on product liability is still in its infancy, much can be learned from comparative law in developing this field, an approach that can be discerned in case law. Be that as it may, the common law on product liability was independently developed by the courts. In light of the difficulty to prove fault on the part of the manufacturer, as well as for various other reasons, it was advocated that product liability should be strict, that is, fault should not be required for liability. The willingness of the Supreme Court of Appeal to investigate this matter was tested in Wagener and Cuttings v Pharmacare Ltd. After thorough consideration, the court was not prepared to recognise strict product liability in principle and thus to become involved ‘in the function of trying to “legislate” judicially in this complex field’. The plaintiff 's remedy was therefore limited to the Aquilian action, which according to the court adequately protects the person against defective products, with the possibility of gradual development of the approach to the res ipsa loquitur maxim and a reversal of the onus of proof. If strict liability had to be introduced, it was a task of the legislature.

The legislature did intervene and introduce strict liability for damage caused by a defective product in section 61(1) of the Consumer Protection Act 68 of 2008 (CPA). The CPA provides that the producer (manufacturer) as well as the importer, distributor or retailer of goods are liable for harm caused to consumers by unsafe or defective goods, irrespective of the presence or absence of negligence; strict liability therefore applies.

Summary

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.

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Nullity in the Ordonnance

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Introducing Imprévision into French Contract Law - A Paradigm Shift in Comparative Perspective

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The Reform of the French Law of Obligations: How Long will the Belgians Remain Napoleon's Most Loyal Subjects?

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Fundamental Rights in the French Contract Law Reform

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Price Reduction under the French Contract Law Reform

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Commercial Impracticability and the Missed Opportunity of the French Contract Law Reform: Doctrinal, Historical and Law and Economics Arguments - Comment on Lutzi's Introducing Imprévision into French Contract Law

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The French Contract Law Reform: a Source of Inspiration?

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The French Contract Law Reform: a Source of Inspiration?

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