Front Matter

1 General Introduction

Part I Civil Liability in Respect of the Manufacture, Supply or Use of Products Apart from Implementation of the EC Directives

2 Introduction to the Private and Public Laws of Liability in France

3 Droit Privé: Delictual Liability for Fault and for the ‘Deeds of Things’

4 Droit Privé: The Law of Sale

5 Droit Privé: Liability for the Provision of Services Involving Products

6 Droit Administratif and Liability for Products

7 Public Services, Service Public and Liability for Products

8 Introduction to Private and Public Liability in English Law

9 The Tort of Negligence, its Adjudication and its Satellites

10 The English Law of Sale of Goods

11 The English Law Governing Public Services, Private Services and Liability for Products

Part II Administrative Liability for Failure to Regulate or Control Product Safety

12 French Law: Formal Bases of Liability and Practical ‘Irresponsibility’

13 English Law: Recurrent Themes and Endemic Casuistry

Part III Criminal Responsibility for Unsafe Products and its Relationship to Compensation

14 Fraudes, Homicides and the Role of the Partie Civile

15 English Law: Crime, the Criminal Process and ‘Essentially Civil Claims’

Part IV The Ec Product Liability and the Consumer Guarantees Directives and their Implementation in French and English Law

16 The Creation and Maintenance of the EEC Directive on Liability for Defective Products and the Process of its Implementation in the UK and France

17 A Closer Look at the Product Liability Directive

18 The Patterns of Liability

19 The Consumer Guarantees Directive and its Implementation in French and English Law

Part V General Conclusion

20 General Conclusion

End Matter

General Introduction

SIMON WHITTAKER

DOI:10.1093/acprof:oso/9780198256137.003.0001

Abstract and Keywords

This introductory chapter first sets out the purpose of the book, which is to investigate how the law implementing two EC directives–the Product Liability Directive of 1985 and the Consumer Guarantees Directive of 1999–relates to and reacts with the surrounding laws of two domestic legal systems, those of England and France, and how these compare. It discusses the category of ‘liability for products’, covering the relative attractiveness of claiming against different defendants and recourse between potential defendants. The chapter then presents the limits of the study and an overview of the subsequent chapters.

Keywords:   Product Liability, Consumer Guarantees, liability, claims, defendants, English law, French law, EC law

1. The Starting Point for this Study

The EC Product Liability Directive of 1985 can be seen as the first European legislation which touched the heartland of the private laws of the Member States, affecting cases which previously had been dealt with by their established rules of contract or of tort. In the two subsequent decades there have been a string of directives affecting contracts in general,¹ dealing with aspects of public contracts,² commercial contracts³ and most especially consumer contracts.⁴ Moreover, the effect of these directives in the laws of the Member States has sometimes been considerably wider than their terms have required, the national systems using their implementation as an occasion for wider reform on the basis (at least in part) of the legal concepts which they contain.⁵ Of these directives, two are particularly prominent: the Unfair Terms in Consumer Contracts Directive⁶ and the Consumer Guarantees Directive;⁷ and while the latter is itself fairly limited in scope, at times its implementation in the laws of the Member States has proved highly controversial.

At the same time as these legislative initiatives, there has also been very considerable academic and European institutional interest in questions of the future direction or (p.2) directions in which EC legislation should go, whether quite modestly focusing on the quality and consistency of legislation of the ‘sectoral’ character as has already been enacted, or more radically looking towards a European contract law or European Civil Code.⁸ Various academic initiatives have been undertaken to construct or to start to construct sets of legal propositions which may form the basis of more general future legislation, the two best known being the Principles of European Contract Law and work of the Study Group for a European Civil Code chaired by Professor Von Bar.⁹

There has also arisen lively academic discussion as to the proper nature and function of comparative legal studies. At one end of the spectrum some scholars see in developments of the legal systems of western Europe a ‘gradual convergence’; those at the other end instead argue against the possibility of any true debate between lawyers raised in different systems owing to the fundamental incommensurability of different laws (and in particular, the common law and civil law) and the different ways of thinking in different legal cultures.¹⁰ Many comparative lawyers in Europe (of which the present writer is one) find themselves somewhere between these two pole positions: unconvinced by the idea that there is any general convergence, but acknowledging the presence of new points of contact and interaction between national laws, not least as a result of the work of the European Union and of the European Court of Human Rights; seeing the justice of criticisms of those who too readily see similarity between laws, (‘whether at a doctrinal level or at a functional level the laws use different words or techniques but come to the same results’¹¹) without looking more carefully at the wider legal institutional context in which these substantive laws function, but nevertheless seeing the comparative law enterprise as fundamentally possible and worthwhile. For, in my view, this enterprise is essentially concerned with an attempt at understanding the way in which lawyers in other legal systems see legal questions, (p.3) attempt to resolve them, deal with the resolution of disputes, and relate legal questions to other types of question (political, economic or social). Comparative law may concern legal doctrine (‘principles’, rules, the significance of particular cases), legal theory, legal history; it may involve empirical work, for example, investigating the way in which different ‘legal actors’ behave within a system or in one part of a system. In all this, a ‘foreign lawyer’ (that is, someone whose first training is in a system other than the system being studied) is clearly at a considerable disadvantage, maybe knowing a little (or even quite a lot), but at risk of not knowing what he or she does not know; and not sharing the assumptions of, and missing many of the allusions caught by, those native to the system. On the other hand, a foreign lawyer also has a certain advantage stemming from these same characteristics: he or she can see with fresh eyes what the lawyers and others within a legal system are doing as well as saying. But comparative law necessarily requires debate, and particularly debate between lawyers from the two or more systems which are under examination where both have a certain understanding of the other. In this respect, comparative legal work does not differ fundamentally from legal work within any particular legal system, for lawyers brought up in the same legal system (and even having studied at the same university or working in the same professional environment) can bring considerably different ways of thinking to bear on the same legal issues (or even argue that these legal issues should not be the starting point of discussion). These differences in intellectual background, political or ideological starting point do not invalidate the debate within a legal system; they enrich it. So too, differences in ways of thinking between lawyers from other legal systems can enrich debates both as to what we would wish to be doing with our laws and how we should be doing it, issues of policy and of technique. In this respect, modern European legal systems are not ‘closed systems’, unaffected by external influences, whether direct or indirect, technical, political or economic—though the extent of their openness may differ significantly between each other and over time.

How then can such a comparative law dialogue be undertaken without talking at cross purposes or encountering other significant misunderstanding? At a practical level a comparative lawyer needs to attempt to understand quite a sizeable chunk of another legal system before attempting to offer comparative observations. Certainly, if one’s focus of attention is a relatively contained conceptual or doctrinal question, it is all too possible to miss the ways in which the other system deals with the question or (more insidiously) miss the fact that the question is not posed or not posed in the same form in the other system and why. This is one of the reasons why undertaking comparative legal studies at an undergraduate student level is so difficult: the student often simply does not know enough about the way in which his or her own legal system fits together (or does not fit together) to be able to appreciate the different patterns of another system.

Secondly, though, we need to embrace the diversity of approach which different scholars can bring to the comparative law enterprise, rather than be quick to point out the limited nature of other people’s investigations. There are, indeed, a number of levels at which or ways in which comparative law can be undertaken. At a first level, one can look at the legal norms themselves—the principles and rules—and see how they compare to what appear to be their counterparts; one can then look at their legal (p.4) context—the other principles or rules to which they are related or with which they conflict; in both respects, one is concerned with the function or functions of the rules, either as these are attributed by those within the system or can otherwise be detected. But other scholars will be more concerned with the historical development of the law or of its institutions; with methods, styles or forms of legal reasoning; with perceptions of the law or particular laws and lawyers’ mentalities, either as a matter of empirical study or by reflection upon the different language which lawyers and others use in their debates. Others will be concerned instead with legal institutions, legal procedures; their studies may relate to the sociology, the economics or the political thought influencing the two or more systems under consideration. Each of these elements (and no doubt a number of others) help to create a fuller picture of any legal system; but we cannot expect any single comparative legal study to undertake all of them, any more than we expect every national legal study to do so. The nature and type of study reflect the skills and intellectual taste of the student or scholar.

Having said this, it is not my purpose to attempt to expose a theory of comparative law nor to argue for a particular vision of what comparative lawyers should or should not be doing, but rather to explain my own starting point for a much more particular study. The first purpose of this book is to investigate how the law implementing two EC directives—the Product Liability Directive of 1985¹² and the Consumer Guarantees Directive of 1999—relates to and reacts with the surrounding laws of two domestic legal systems, those of England and France, and how these compare. In my view, the great advantage of undertaking a comparative study which includes within it law subject to EC legislative intervention is that it provides points of contact and reference between the two systems, around which wider contrasts and comparisons can be explored. It also will allow me to offer some observations on the significance of the ‘harmonisation’ of law which these directives promise and on which their competence rests, not merely from the point of view of their particular provisions but more widely. On the other hand, my focus on just two legal systems is very restricted compared to comparative legal undertakings which compare or draw on the laws of western Europe, or, increasingly after enlargement of the EU, of Europe more generally.¹³ The reasons for this stem in part from the limited nature of my own work, but even more from the wide range of issues which my topic requires within these two systems. This will become apparent from the way in which I shall interpret ‘liability for products’ and my approach to the comparison of the two laws, as it will include a good deal of the private and administrative law of liability, the relationship between criminal and civil liability and aspects of civil and criminal procedure, as well as an analysis of the substantive provisions of the two European directives. In this way, I wish to use a particular topic as a way into exploring much broader features of the two legal systems.

(p.5) 2. ‘Liability for Products’

Many European lawyers would see the category of ‘liability for products’ (or more often ‘product liability’) as being a relatively new and still rather alien legal category.

For a civil lawyer, the traditions of Roman law did not identify ‘liability for products’ as a distinct ground of delictual liability and while the law of sale possessed in the aedilitian remedies a special set of actions in relation to defective property, this was both wider than ‘product liability’ (the property being of any type according to the later Romanists) and not focused on claims for damages.¹⁴ So while French jurists wrote on the liability of manufacturers for their products from the middle of the 1950s, often inspired in doing so by the existence of the category in US law,¹⁵ before the Product Liability Directive there was no distinct legal treatment of the category either by the Civil Code, or in the jurisprudence of the Cour de cassation or the Conseil d’Etat, though the former can be seen to have tailored some more general bases of liability for the particular situation of manufacturers or ‘business sellers’ (‘vendeurs professionnels’).¹⁶ Instead, for reasons which I shall explain, French lawyers (both private and public) long concentrated their attention on liability for fault conceived in a myriad of ways and on liability for things, whether under private law of liability for the ‘deeds of things’ under article 1384 alinéa 1 of the Civil Code or in public law for ‘dangerous things’.¹⁷

Broadly similarly, for an English common lawyer ‘product liability’ was first seen as a recognised type of case within the wider category of liability in the tort of negligence, and while it did and still does retain a degree of distinctiveness there, the focus of the liability is not on the state of the product, but rather on the nature of the defendant’s conduct (negligent or not)¹⁸ and the law belongs to and is affected by wider developments in the law governing that tort. In this it contrasts strikingly with US law where the famous section 402A of the Second Restatement of the Law of Torts¹⁹ which sought to impose liability without negligence in respect of products has given the law a more distinctive character.²⁰ In both common law contexts, the core concern of ‘product liability’ has been the liability of the manufacturer of a product (that is, goods which a manufacturer has produced from their raw materials) for personal injuries or death; liability could be contractual (often arising under the law of sale of goods) or tortious, but in the English common law it often needed to be the latter given the absence of privity of contract between the person injured and the manufacturer in modern arrangements of production and distribution. There were (and are) a number of (p.6) penumbral cases where ‘product liability’ may or may not also be said to arise. These include cases of liability for different types of harm (notably damage to property or pure economic loss); liability towards those other than persons within the chain of distribution of the product (‘bystanders’); and liability of persons within the chain of distribution other than manufacturers, notably sellers or suppliers. While in English law the involvement of a ‘product’ in the causing of harm cannot be said to have constituted a distinct legal ground for the imposition of liability before implementation of the 1985 Directive, this was not the case in the US where its independence was assured by its special treatment in the highly influential (if not binding) Restatement of Torts.

The enactment of the EC Product Liability Directive in 1985 required the introduction into the laws of the Member States of a distinct body of law imposing liability for certain types of harm (but principally personal injuries or death) caused by ‘defective products’ on certain categories of persons involved in their production and distribution. The principal purpose of the Directive was the ‘approximation of the laws of the Member States’ which was ‘necessary because…existing divergences may distort competition and affect the movement of goods within the common market’,²¹ though it also claimed that its provisions were enacted in the interests of consumer protection.²² The Directive clearly intended that liability should be channelled towards the producer of the product (though it defines ‘producer’ to include Community importers and own-branders as well as manufacturers), imposing liability on mere suppliers only where they cannot identify their own supplier or the producer within a reasonable time.²³ And so by harmonising the rules of liability in producers and suppliers it can help to create a level playing field for them in the internal market.

However, in my view this is much too narrow a vision of ‘liability for products’ and rests on assumptions which misunderstand the patterns of liability within legal systems, as I shall explain from the particular examples of English law and French law, before and after implementation of the 1985 Directive.²⁴ For the way in which liability is channelled within a legal system is a function of two issues in particular: the relative attractiveness of suing one or other potential defendant and the means of recourse and basis of apportionment of liability available between potential defendants.

(a) The relative attractiveness of claiming against different defendants

In some types of case involving products, one or more persons other than their manufacturer or supplier may be liable for the harm suffered by a claimant, whether or not the involvement of the product is formally significant in the imposition of that liability. The relative attractiveness of claiming against one or other of these various potential defendants is an important factor in determining where liability will first fall, for while in both the English and French systems a claimant may be able to sue more (p.7) than one defendant in the same litigation,²⁵ this both complicates the case (factually and legally) and risks increasing its costs. For this purpose, the relative attractiveness to a claimant of one defendant over another is a function of a number of factors, but these can be grouped together in terms of the difficulty of establishing the fundamental basis of liability (does it require proof of fault or negligence, establishing the ‘defectiveness’ of the product or is liability fully strict?), the particular application of its incidental rules on the facts (for example, does it allow a defence of contributory negligence in the claimant or has its limitation period expired?) and the question whether or not the defendant is able to pay any award which the court makes (whether as a matter of the defendant’s own resources or insurance). Where a claimant has a sound claim against a particular defendant who is able to pay, then he or she does not need to address the question whether any other person is also liable, but can leave this to that defendant’s own recourse, whether within the same proceedings by that defendant’s joining that other person or in subsequent proceedings.²⁶ A claimant is not concerned with whether or not liability is channelled onto a product’s ‘producer’, but simply with achieving full compensation. Even where a claimant sues two or more defendants (one being the ‘producer’), and all are held liable to him jointly in respect of the harm, the question who bears the cost of this liability as between these unsuccessful defendants remains open: it may fall at least in part on the producer, but it may not.²⁷

This means that, in order to assess whether or not the Product Liability Directive is successful in its aim of channelling liability on the legal basis which it specifies onto ‘producers’ in the interests of fair competition, one needs to examine the full range of persons who may be liable for harm caused by products and seek to track the course or courses of claims which are likely to be made, and establish the wider patterns of liability. Clearly, this may include possible defendants within the chain of distribution of products who may be liable on other grounds apart from those prescribed by the Directive itself. Of these, sellers of products are clearly of particular significance, whether or not they have sold the product directly to the claimant, but a number of other contractual suppliers or providers of products may be liable for the harm which they cause (notably, hirers of goods, landlords or other occupiers of premises, and employers) as may those who have put some intellectual or physical input into the product but who are neither producer or supplier (such as designers or repairers).

However, for the purpose of establishing the patterns of liability, three other categories of defendant must be included within the investigation of ‘liability for products’ who do not often appear within the traditional dramatis personae of ‘product liability’: those who own or use products, the public suppliers of products and the public regulators of products.

The liability of those who own or use products is particularly prominent in French law as it has attracted distinct legal categories of liability in both private and public law. In French private law, this liability centres on the famous general liability for the ‘deeds of things’.²⁸ This strict liability, constructed by the courts in the first half of the (p.8) twentieth century at the suggestion of la doctrine from a very unpromising provision of the Civil Code,²⁹ is imposed on the ‘thing’s’ gardien, technically a person with its ‘use, direction or control’ but often its owner.³⁰ Surprisingly, there are very few restrictions on the types of things which attract this liability: all physical movables and immovables are included, and no distinction is made as to whether or not the thing is dangerous or defective.³¹ The main spur and for long the typical example of this was the liability of car owners or drivers for the ‘deeds’ of their vehicles, its typical nature only being qualified when in 1985 legislation made liability even stricter than is the case as regards other ‘things’.³² What this means is that where a person is injured in a motor vehicle accident, he or she is likely to be best advised to claim damages from its driver as gardien of the vehicle, rather than entering the question whether or not the vehicle was ‘defective’ and therefore whether any claim should instead or also be brought against the car’s manufacturer. This liability for the ‘deeds of things’ has remained very wide and has had (and continues to have after implementation of the Product Liability Directive) a very important effect on the channelling of liability in respect of defective products.

French administrative law does not possess a general ‘liability for the deeds of things’ which matches that recognised by the ordinary courts as a matter of private law, but it has recognised special and strict liabilities which arise from the use and/or supply of products, which are attractive from the point of view of a claimant and which therefore can vie successfully with liabilities of producers under the 1985 Directive. Of these, two have been prominent: the liabilities imposed for harm caused by particular examples of dangerous things (though the liability also extends to liability for some dangerous activities and is not as important in practice as at first sight appears) and liability arising from ‘public works’ (travaux publics).³³ Where these liabilities apply, a claimant is likely to prefer to claim damages against the defendant designated by administrative law (who may or may not be a public body) before the administrative courts, rather than against the person potentially liable under the legislation implementing the Product Liability Directive.

By contrast with the French public and private laws, apart from under the law of sale and related contracts which remain constrained by privity, English law has recognised relatively few situations where a claimant injured by an allegedly defective product would generally prefer to sue someone other than its manufacturer, this reflecting its increasingly exclusive reliance on the tort of negligence to deal with claims for death, personal injury and damage to property.³⁴ An English victim of a product might well, therefore, need to claim against a ‘producer’ of the product as long as he or she can satisfy the conditions of liability imposed by the 1985 Directive.

Secondly, public bodies (or others on their behalf) may supply or put at a citizen’s disposal particular types of products as part of a public service. The public nature of this supply may attract special public rules of liability, distinct from those applicable to producers in the commercial sector; even where it does not and the ordinary rules (of ‘private law’) apply, the public nature of the supply may nevertheless have an incidental (p.9) effect on liability.³⁵ I shall look at how the public nature of a service understood in a broad and non-technical sense may impact on liability for products, looking at this problem generally and at the examples of the supply of public utilities, transport and health care.

This public dimension to the law of liability for products is even more overtly reflected in the third category of person who can be liable for harm caused by products, that is, public regulators of product safety. For in both English and French law, public authorities have come to play a considerable role in the policing of the safety of products produced or supplied by others. In order to do so, they possess broad powers to regulate the attributes of products, to prosecute those who supply unsafe products, to order unsafe products off the market and even to prevent unsafe products from coming onto the market, some of these powers finding their origins in European legislation concerning the safety of products, whether general or particular.³⁶ From the point of view of the ability to pay, a public authority is a very attractive defendant, but can a public authority be liable to a person injured by a product on the ground of its regulatory failure? Here, English and French law appear to give very different responses, the English being generally hostile to such claims, the French apparently much more open,³⁷ but the real position is more complex as the English law is controversial and unsettled and in French law there are a number of factors which militate against the actual imposition of liability in a public authority in this sort of context.³⁸

(b) Recourse between potential defendants

In neither French nor English law does liability necessarily rest with any defendant first sued, nor, indeed, is a claimant necessarily restricted to claiming against a single, most attractive defendant. So the second major element of the way in which (or the extent to which) liability is channelled within the French and English laws concerns the existence of means of recourse between potential defendants and the basis of the allocation of their responsibility. Where a case would attract liability under the Product Liability Directive but a claimant prefers to sue another defendant (the ‘first defendant’) on some other ground, to what extent does liability stick with this defendant or will it instead flow on, channelled towards those whom the Directive designates as producers? As I shall explain, the answer to this question differs significantly in French and English law and, moreover, within each system depends in part on whether or not the first defendant is within the contractual chain of distribution, on the legal ground on which liability is imposed and (in the case of French law) on whether the liability is private or administrative.³⁹ Overall, the channelling of liability in cases of allegedly defective products is a function of a complex of factors, many of which do not rest on any feature of the rules set for producers and the other defendants envisaged by the 1985 Directive itself.

It will be seen, therefore, why this work has been entitled ‘liability for products’ rather than ‘product liability’: for while ‘product liability’ suggests concern with the (p.10) liabilities of those within the chain of production and distribution, my concern is much wider and encompasses all those who may be liable in respect of harm caused by products. It will also be clear why my explanation of the laws of England and France, which form the setting into which this legislation implementing the Product Liability Directive falls and to which it relates, must include administrative as well as private law.