manufacturers of spare parts did not formally exist in the Central European product liability regimes before the implementation of the Directive, this provision could be said to refer to the fault liability system – the said manufacturer cannot be held liable for defects which were not caused by him. Thus, it appears that while the implementation of the Directive means a less stringent liability standard in Hungary, no very significant change of the developed liability standards is likely in Poland and the Czech Republic (at least as far as substantive law is concerned).

Damages

The existence of a loss or damage caused by the tortious act of introducing a defective product into circulation has been another crucial requisite of product liability. Here the rules have not differed from the general principles of ordinary tortious liability. Generally damage has been defined as ‘every wrong inflicted upon an interest protected by law, be it property, dignity, freedom, limb or life’.208 Not all suffered damages could be recovered under the rules of tort, however. Normally the damage recoverable must be measurable in money.209 Law distinguishes between damages to property and damages to person. The latter can, but need not, be measured in money, and their consequences may be emotional distress and pain (non-pecuniary damages), as well as the costs of treatment or rehabilitation, temporary or permanent loss of employment capabilities, or loss of earnings (pecuniary damages).210 Damages of a pecuniary nature can be classified either as direct pecuniary loss to the victim (damnum emergens), or loss of profits which would have been achieved by the victim if the tort had not been committed (lucrum cessans).211 In contrast to the general tendency, for instance, in English law,212 tort laws of certain Central European countries have normally permitted recovery of both latter types of losses.

208W. J. Wagner, Polish Civil Law. Volume II. Obligations in Polish Law, in Z. Szirmai, Law in Eastern Europe (Leiden: A. W. Sijthoff, 1974) at p. 147. This definition, provided with reference to Polish law, is no doubt applicable throughout Central Europe.

209Ibid. 210 Ibid.

211Ibid. Such a classification can also be seen in other legal systems, for instance in French law: perte – profit, or German law: wirklicher Schaden – Entgang des Gewinnes (ibid., p. 98).

212Spartan Steel Alloys v Martin [1972] QB 27, with the exception of Junior Books v Veitchi

[1982] AC 520.

In terms of damages product liability law presents certain interesting problems and demands to be treated differently from the general tortious liability regime. The manner in which they have developed in the product liability context in Central Europe is examined below.

Generally the damage capable of setting the ‘product liability machine’ in motion has not been merely, any but a particular type of damage. As explained above, the most crucial delimitation of the scope of product liability concerned the common contention in Central Europe, following the world trend on the subject, that it only involved damages caused by, and not within, the defective products.213 The latter damages have traditionally been attributed to contractual liability. How have the Central European legal systems dealt with the issue of damages in product liability cases? It must be remembered that even the Product Liability Directive does not allow recovery of all the sustained damages, and leaves the regulation of recovery of non-pecuniary damages to the national law. Therefore the manner in which the legal systems in question have approached the issue of damages remains significant even after the implementation of the Directive. It seems that especially recovery of non-pecuniary damages and lucrum cessans caused some problems within Central Europe. In Hungary, from the introduction of the Civil Code of 1959, the tortious regime did not distinguish between the protected objects, be it property or a person.214 It was, however, clearly stated in the Civil Code that in case of personal injuries caused by a tortious act only pecuniary damages were to be recovered.215 Hence, although the courts were willing to award compensation for non-pecuniary damages caused by injury to a person, they were unable to do so openly in the light of the regulation of the Code.216 However, after the amendment of the Civil Code in 1977, an exception was inserted into the chapter of the Code concerning liability: in cases of serious injuries or serious infringements of personal rights it has since been possible to recover non-pecuniary damages.217 The courts’ decisions followed this amendment, but still, according to Harmathy, there has been a lack of ‘clear principles of the obligation to pay non-pecuniary damages’ in the Hungarian legal system.218 This lack of clarity remains until today. In contrast to the Hungarian Civil Code, the Czechoslovak and then the Czech Code unequivocally ensured recovery of both pecuniary and nonpecuniary damages. Injuries to the health and body were separated from

213Le˛towska , Prawo um´ow konsumenckich, p. 103.

214Harmathy, Introduction to Hungarian Law, p. 117.

215Ibid. 216 Ibid. 217 Ibid. 218 Ibid.

other kinds of damages. The former were regulated in the part of the Civil Code concerning ‘protection of personhood’ (Sections 11–17).219 Apart from demanding that the violation of the particular right be stopped, its ‘consequences be removed and that adequate satisfaction be given to him or her’ the victim could also have the right to ‘pecuniary satisfaction of the immaterial detriment’ in case of ‘considerable reduction of dignity or honour’ (Section 13). Generally, however, the rules of recovery of damages to personhood were the same rules governing all other kinds of damages. These were regulated in Sections 442–50 of the Code. The former version of the Czechoslovak Civil Code, in Section 442 referring both to tortious and contractual liability, generally only allowed for damnum emergens to be recovered.220 Further, greater emphasis was placed by the Article upon restitutio in integrum or restitutio in natura than on compensation (the more ideologically proper and cheaper solution always to be given priority unless ‘impossible’ or ‘inefficient’ (Section 442.1)),221 although in practice most cases did see compensation paid to the victim.222 Lucrum cessans, which Vondracek refers to as an ‘ideologically tainted notion’, was not usually recoverable.223 However, as an exception from this rule the Code introduced, in Section 422.2, the notion of ‘other damage’, recoverable on the court’s discretion determined by the principles of ‘socialist community life’224 if the damage was caused deliberately. Vondracek pointed out, however, that it was unlikely for loss of earnings to be compensated,225 although it was still possible under exceptional

219By virtue of Section 11: ‘An individual shall have the right to protection of his or her personhood, in particular of his or her life or health, civic honour and human dignity as well as of the privacy, name and expressions of personal nature’ (translation sent by Dobiasova).

220Section 442.1 reads: ‘Only real damage is compensated . . .’ (Vondracek, Commentary on the Czechoslovak Civil Code (Dordrecht, Boston, Lancaster: Martinus Nijhoff Publishers, 1988) 394).

221Also some representatives of the doctrine of law were in favour of this solution.

222Vondracek, Commentary, p. 395; V. Knapp and J. Pauly, ‘Zamysleniˇ nad novelo u obcanskˇeho´ zakon´´ıku’ Pravnik: 717–33, at 730–3. For example cases: R 1971, No 55 c.c., 339 et seq.; R 1977, No 27 c.c., 312. Vondracek, however, mentions the case where the Provincial Court in Bratislava held that the builder who caused damage to the neighbouring house by explosives used in his work ought to repair the building himself instead of paying the compensation (R 1984, No 21 c.c., 175 et seq.; Vondracek, Commentary, p. 395).

223Vondracek, Commentary.

224The principles of Socialist community life in the Czechoslovak Civil Code were a general clause which resembled the Polish ‘rules of social cooperation’.

225Vondracek, Commentary, p. 396.

circumstances. The Code was amended in 1991 and now Section 442 puts greater emphasis upon compensation than restitutio in integrum, and the compensation is held to include ‘compensation of the real damages as well as what the damaged party lost (lost profit)’.226 Similarly with the jurisdictions analysed above, basing product liability on the general tortious liability provision of the Polish Civil Code determined that damages recoverable in product liability cases were damages which could normally be recovered under the general tortious liability regime.227 In Poland damages to the person have been governed mainly by Article 444 of the Civil Code. The provision stipulates that in cases of injury to person (damage to body and health) the victim can recover all the costs, such as the cost of treatment, and, if the damage involves permanent incapacity to perform the existing profession, also the cost of retraining for a different profession. In cases where the victim is not, or is to a lesser extent, capable of working, or his needs have increased, or his prospects for the future have worsened, the person liable may also be required to pay an allowance (paid in instalments). In special circumstances the court can, instead of the allowance of a part of it, require the defendant to pay a lump sum (Article 447). Non-pecuniary damages can be recovered, and this, together with the possibility of recovering lucrum cessans, has normally been considered as the greatest benefit of tortious liability over contractual liability.228

On the one hand, the scope of damages recoverable in Central Europe was larger than the scope prescribed by the Product Liability Directive. For instance, there has been no minimum amount involved, and the property recoverable could also be used for purposes related to business. Such a large scope still remains and will undoubtedly be of use even after the implementation of the Directive in cases where, because of the particular damages involved, the latter does not apply. On the other hand, the specific practices governing award of damages contributed to the fact that on many occasions the damages awarded to victims of defective products were insignificant. The damages awarded in Poland were, in the words of Gnela, of moderate amounts.229 In Hungary, Harmathy stressed that, particularly in the period of Socialism, awards were limited.230 Again, here is where the need for a new approach in product liability litigation is particularly pressing.