In common with the implemented Directive,148 there was a possibility of joint and several liability of a number of persons. It was of no importance in the Czech litigation that the basis of the liability of the seller was contract and the liability of the manufacturer tort.149

The beneficiaries of the product liability regime – possible claimants

Although the scope of protection provided by the Directive is considerable, the limits related to the type of property for which recovery is possible constitute a significant restriction. Such a restriction has not been present in the Central European product liability regimes. Since the regime was placed in the area of tort, any victim of a defective product, subject to the requirements of the regime being met, was able to make a claim, unhindered by privity constraints. Although consumers have usually been the victims in need of redress, protection was also provided to small businesses and entrepreneurs, even in respect of damages to property used for business purposes. The Polish Supreme Court provided protection to an owner of a poultry farm (Supreme Court, 3 June 1986, II CR 131/86), an owner of a sugar beet plantation (Supreme Court, 21 June 1985, I CR 127/85), or a person renting a farm for business purposes (Supreme Court, 28 June 1972, II CR 218/72). Similar tendencies could be noticed in Hungary. Certain Hungarian cases based upon tort law provided protection for small entrepreneurs.150 It is not clear from the jurisprudence and the writings of the Czech doctrine what approach to this issue has been adopted there. Czechoslovak case law and doctrine rather focussed upon the ‘citizen’ as a victim of a tort.151

Products within the scope of application of product liability laws

Article 2 of the Directive has been implemented by the Central European states without any reservations, including the recent amendments. Both

148Article 5 of the Directive, implemented by Article 449.5.3 of the Polish Civil Code, Section 5 of the Hungarian Act on Product Liability, and Section 7a of the Czech Act. The Polish Civil Code also contains a general provision on joint and several liability in Article 441. Article 344 of the Hungarian Civil Code describes this type of liability. The Czech Civil Code envisages the possibility of joint and several liability in Section 438.

149Svestka, ‘Damage Caused by the Sale of a Defective Product’, p. 100.

150The ‘chemical spray case’ and the ‘bee case’ – Maczonkai, Hungarian Product Liability Case Law, p. 110.

151The concept of ‘citizen’ has now disappeared from the regulation of liability in the Civil Code.

the Hungarian and the Czech product liability Acts initially excluded primary agricultural products and game from the scope of their applicability. The Polish Act was adopted after the amendment of the Directive and hence included the new version of the definition of ‘products’. The Hungarian and Czech Acts have been amended152 following the amendment of the Directive,153 and at present ‘products’ include: in Hungary: ‘any movable property, even if it subsequently becomes a component or part of another movable or real property, as well as electrical energy’;154 in the Czech Republic: ‘any movable goods which were produced, extracted or otherwise gained irrespective of the degree of their processing and which are intended for placing on the market’ as well as ‘parts and accessories to movable goods and fixtures and fittings to immovable goods’;155 and in Poland: ‘a movable thing, even if it has been connected with another thing’ as well as ‘animals and electrical energy’.156

The concept of ‘products’ was not recognised in the Civil Codes before the implementation of the Directive. The product liability regime was based upon the traditional civil notion of ‘things’.157 Things were only material goods. No division between processed and unprocessed goods existed. However, only a movable could be the subject matter of product liability litigation. No significant transformation has therefore taken place after the implementation of the Directive in the understanding of the subjects of product liability cases.

One significant difference, however, concerns component parts, which according to the Directive are treated as independent products, and according to the traditional tortious liability regimes of Central Europe

152In Hungary – Act XXXVI of 2002, in the Czech Republic – Act no. 209/2000.

153Directive 99/34 of 10.05.1999, OJ L 14/20.

154Section 1.1 of the Act on Product Liability. Kalman, Lelkes and Domokos point to the failed attempt to regulate product liability together with other areas of consumer protection laws, where ‘products’ were defined as ‘movables and things regarded by the same criteria’, which could potentially lead to declaring strict liability for damages caused by water, steam

or gas (BIICL Database report on Hungarian Product Liability Law).

155 Section 3 of the Act 59/1998. 156 Article 449.1 para.2 of the Civil Code.

157The concept of ‘things’ was utilised by, for instance, laws on legal and commercial guarantees – in Articles 556–82 of the Polish Civil Code. The Czechoslovak and Czech Civil Codes were largely inconsistent in their terminology relating to ‘things’: Sections referring to contracts of sale (§§590–611) use the notion ‘object of sale’, Sections referring to special provisions on sale of goods in shops (§§612–18) – ‘goods’ or ‘things’, Sections referring to liability for defects – ‘things’ (§§619–27). The Hungarian Civil Code did not specifically deal with the concept of things, although it used the notion (Article 95.2). ‘Things’ were rather taken for granted and referred to in terms of subjects of property (Articles 92–5).

did not have such status. The Polish Civil Code has defined component parts of a ‘thing’ as ‘everything that cannot be separated from it without damaging or without causing a crucial alteration of the whole, or without damaging or causing a crucial alteration of the separated thing’ (Article 47.2).158 Things connected with other things only for some temporary use are not to be treated as their components (Article 47.3). The legal effect of classifying a thing as a component of another is the loss of its independence as a separate thing, or as a separate subject of property or other rights (Article 47.1). The Hungarian Civil Code avoids defining ‘things’, but it is possible to find a regulation concerning components among the provisions referring to property. According to Article 95.1 ‘the right of ownership comprises all that is permanently united with the thing in such a way that separation would produce the destruction of the thing, or a considerable decrease in the value or utility of the thing or of the separated part thereof (component part)’. The Czechoslovak and Czech Civil Code defines components of a thing as ‘all that appertains to the thing according to its nature and cannot be separated from the thing without devaluation of the thing’ (Section 120).159 It also seems clear that components cannot be subjects of separate property rights: according to Section 135a ‘Accessions of the thing, even if they were separated from the main thing, shall belong to the owner of the thing.’160 Thus, although in fault liability systems it would be feasible that manufacturers of component parts of things, when these components and not the final products actually caused damage to others, were liable, such a possibility was not developed in the case law. The exception has been the jurisprudence of Hungarian courts, where, in the case of ‘turnip cabbage seed’, the possibility of suing every producer, also the producers of component parts, together with the sellers, was established.161 From the point of view of the Directive such a situation would be unsatisfactory for the victims of defective products. Were the Central European rules indeed disadvantageous for them? It seems that on a great many occasions the victim is unaware of which particular part of the product exactly caused the damage. In these cases being able to sue the end producer facilitates his position.

160Quoted from the text of the Code sent by Dobiasova, personal communication.

161Cited by Le˛towska and Maczonkai, Hungarian Product Liability Case Law, p. 111. This was in fact a judgment based on the law of contract and the already analysed concept of assistant in performance.