General Conclusion simon whittaker

DOI:10.1093/acprof:oso/9780198256137.003.0020

Abstract and Keywords

This chapter offers more general conclusions to the work as a whole in terms of the relationships between the broad bodies of law under consideration and any lessons to be drawn for the harmonisation of laws in Europe. It discusses the differences between the Product Liability Directive and the Consumer Guarantees Directive; the meaning of fault under English and French laws; the relationship between the interpretation of substantive legal rules, the legal procedure by which they are applied to facts, and the judicial institutions which decide the outcome; the impact of the French and English laws of liability for products from the perspective of administrative law as well as of private law; the connections between legal institutions, legal processes, and substantive laws within Member States; and the European harmonising effect of the two directives.

Keywords:   product liability, liability law, English law, French law, Product Liability, Consumer Guarantees, fault

1. The Two Directives Contrasted

I have already looked at the broad differences between the Product Liability Directive and the Consumer Guarantees Directive, in terms of their purposes and legal bases in EU law, their legal parentage, and the remedial expression of their imposition of liability.¹ There remain significant differences between the two directives: the Product Liability Directive being principally concerned with the imposition of liability in order to compensate the victim of personal injuries or death caused by an unsafe product; the Consumer Guarantees Directive being principally concerned with the provision of rights of repair or replacement of goods whose quality or fitness for purpose is inadequate.² This primary contrast between safety and quality could itself be seen to reflect more fundamental differences between contractual rights and extra-contractual rights (meaning by the latter, rights to damages arising from a legal basis which is independent of a contract, whether or not the right-holder happens to be a party to a contract and adopting this neutral terminology so as to avoid the language of tort or delict). Contractual rights reflect the generally positive effect which entering a contract is intended to have on the parties’ legal positions and so their remedial protection can improve their position as contrasted with the status quo ante; extra-contractual rights reflect the negative effect of the factual circumstances from which they arise on the existing position of the right-holder and therefore are aimed at putting him back in the position he would have been in but for that negative effect.³

However, this series of contrasts is blurred in a number of ways as regards the two directives which form the focus of this study. First, issues of the fitness of a product for its purpose may impact on the question of its defectiveness in terms of safety under the 1985 Directive: some products (such as kitchen knives) need to be inherently dangerous in order to serve their purposes.⁴ Secondly, the safety of goods is relevant to their ‘fitness for purpose’ within the meaning of one of the aspects of their contractual conformity under the 1999 Directive.⁵ And, thirdly, while these directives themselves require the provision of different remedies (the 1985 Directive being restricted to damages, the 1999 Directive being concerned with a number of remedies apart from damages), the integrated implementation of the 1999 Directive in the contract laws of (p.632) Member States may indeed have an impact on the imposition of liability in damages. This is true both of English law (which has amended—though slightly—the legal basis of liability for qualitative or functional defects, including as to damages so as to conform to the Directive) and of French law (which apparently sees the French new basis of liability for contractual non-conformity stemming from the Directive as sounding in damages).⁶ Finally, the law of sale of goods (which is the concern of the 1999 Directive) forms an important basis on which a person held liable under the 1985 Directive may recover an indemnity against a person higher up the chain of distribution of the product. Again, the 1999 Directive itself does not require any particular change to the laws of the Member States in these circumstances (though it requires that there should be some law allowing recourse of this type), but its implementation by a Member State by way of changing the legal basis of sellers’ liabilities for qualitative defects to their buyers without distinguishing between consumers and non-consumers would affect recourse claims as well as claims by the ultimate purchaser of goods.⁷