CHARACTERISTICS OF LIABILITY FOR DAMAGES CAUSED BY DEFECTIVE PRODUCTS

CHARACTERISTICS OF LIABILITY FOR DAMAGES CAUSED BY DEFECTIVE PRODUCTS Teodor BODOAŞCĂ, Dimitrie Cantemir University, Bodoni Sandor 3-5, Tîrgu Mureş, Mureş, Romania. Natalia SAHAROV, Dimitrie Cantemir University, Bodoni Sandor 3-5, Tîrgu Mureş, Mureş, Romania. Abstract: The study presents a legal and logical analysis of the features of liability for damages caused by defective products regulated by Directive 85/374/EEC, transposed into the internal legal system by Law no. 240/2004. The analysis begins with a brief presentation of European and national regulatory framework established for this form of liability. There are presented and filtered through the prism of the author's critical apparatus doctrinal views on belonging of liability for damages caused by defective products to classical forms of liability and the branch of civil law. Finally, there are pointed peculiarities of liability for damages caused by defective products. Keywords: Directive 85/374/EEC, Law no. 240/2004, liability, defective products, producer, damage. INTRODUCTION Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products [1] establishes a communitarian regulation for liability for damages caused by defective products. This statement is necessary because the Directive contrary to its name does not require to Member States only "approximation of the laws, regulations and administrative provisions", but rather a "total harmonization" of national legislation with its provisions. This is the reason why, in agreement with the opinions expressed by other authors we consider that Directive s name is somewhat misleading because it doesn t reflect its true normative content. So, being perceived as "the first major European legislator interference in civil law" [2] of Member States, Directive 85/374/EEC establishes the obligation of complete harmonization of national regulations on producers' liability for damage caused by defective products. Therefore, the transposition process went through four stages, using two legislative methods, i.e. the transposition of the Directive s provisions in the Government Ordinance no. 21/1992 [3], together with other provisions of the European Directives and the transposition of the Directive in the text of a normative act devoted to exclusive regulation of liability for damages caused by defective products. Finally, the requirements of European principles of distinctive regulation in each sector imposed the national legislator to transpose the Directive into the content of a separate law, namely Law no. 240/2004 on producer liability for damages caused by defective products [4]. Page 3

1. LIABILITY FOR DAMAGES CAUSED BY DEFECTIVE PRODUCTS - A NEW FORM OF CIVIL LIABILITY Does or doesn t liability for damages caused by defective products belong to classical forms of liability or to the branch of civil law was the question that caused an intense doctrinal dispute. Thus, in legal literature were expressed, on the one hand, views that accredits the idea of developing a new form of patrimonial liability, a "third type liability" [5] and, on the other hand, opinions that subscribes this form of liability to issues of liability for damages caused by objects [6]. It also was laid down the opinion according to which the product liability is a "semi-objective liability", "semisubjective", which should not be "squeezed" into drawers of civil law because it belongs to the so-called branch of consumptions law [7]. In our opinion, the latter view exceeds the provisions of Law no. 240/2004 and the current Civil Code. In concreto, the provisions of article 1 and article 6 of Law no. 240/2004 refer explicitly to the "civil liability" and article 13 of the same law provide that the provisions of this law shall be completed with the Civil Code and the Civil Procedure Code. Moreover, if under the influence of the Civil Code of 1864 doctrinal disputes and controversies about belonging of liability for defective products to civil liability could be justified by the absence of explicit legislation in the current legislative context, the source of these different interpretations is exhausted. Thus, article 1349 of Law no. 287/2009 on the Civil Code [8] brings together, under the dome of civil tort liability, tort liability for own acts [para. (2)], tort liability for other s acts, liability for damage caused by objects and animals under his guard and liability for the ruin of the building [para. (3)] as well as liability for damage caused by defective products [para. (4)] indicating that the latter is regulated by a special law. Besides, under the influence of current regulations, belonging of liability for defective products to the branch of civil law is not contested any more by authors who are trying to put the foundation stone for a new branch of law, i.e. "consumptions law" [9]. Regulation of liability for damages caused by defective products in the current Civil Code, even if only by reference to the special law represent undoubtedly an improvement over its predecessor, transacting at least issues about belonging of this form of liability [10]. Also, we disagree with the opinion that the liability for damages caused by defective products can be framed in classical forms of liability, i.e. "tort liability for damages caused by objects". We consider, along with other specialists that the liability for damage caused by defective products transcend the distinction between tort and contractual liability, because the producer is responsible for current and future damage caused by the defect of his product [11], whether contracted or not with the victim [12]. Arguments that strengthen this assertion are more solid as reflected option of legislator itself. Thus, according to article 9 para. (1) of Law no. 240/2004 transposing the article 13 of the Directive, the provisions of this law does not preclude the right of aggrieved or injured person to claim compensation under contractual or non-contractual liability or under other special liability existing at the date of entry into force of this law. Quoted text disclose that without a special regime, product liability would be a contractual one if between the victim and the producer or the person which is assimilated to producer there is a contractual link or tort one, if there is no contract. Therefore, qualification of liability for defective products as tort exceeds the legal framework and is considered abusive [13]. Hence, the Directive establishes a new form of liability, a sui generis liability, which shouldn t be framed in the classic stencils of civil liability. Page 4

2. GENERAL PRESENTATION OF SPECIFIC FEATURES OF LIABILITY FOR DAMAGES CAUSED BY DEFECTIVE PRODUCTS An overview of the liability established by Directive 85/374/EEC, transposed into the internal legal system by Law no. 240/2004, highlights some of its features compared to traditional forms of civil law liability. Moreover, highlighting the peculiarities of liability for damages caused by defective products will reveal with greater acuity veracity of conclusion that it does not subscribe to traditional forms of civil liability. Thus, liability for damages caused by defective products presents some specific features presented below [14]. Firstly, the producer s liability for damage caused by defective products is one without fault, which is a characteristic of liability for its own act. The producer s liability cannot be confused with a latent defects from the sales contracts or with liability for damages caused by objects either, which are not depending on defect of the product in the sense of the Directive. "Latent defects" in the sales contract represents those shortcomings and weaknesses that undermine the very use of the object and make it totally unsuitable or decreases its normal and unusual use. Instead, the "defect" in the regulation of the Directive, respectively of the Law no. 240/2004, appoints the deficiencies or shortages affecting the safety of persons and products other than the defective product, as it are irrelevant whether they affect the use of the product itself. Secondly, the responsible persons are exhaustively listed in article 3 para. (1) of the Directive, respectively, article 2 para. (1) letter a) point 1 of Law no. 240/2004. The analysis of evoked texts concludes that both Directive and Law no. 240/2004 misname generically the category of responsible persons for damages caused by defective products, using the term "producer". According to these two acts, the term "producer" includes the following categories: the manufacturer of a finished product, the producer of any raw materials, the manufacturer of a component part, any person who, by putting his name, trademark or other distinguishing feature on the product presents himself as its producer, importer and supplier. Thirdly, according to the principle tirer la responsabilité vers le haut provisions of article 3 para. (2) - (3) of the Directive, respectively article 2 para. (1) letter a) points 2-5 of Law no. 240/2004 extending the scope of responsible persons for damage caused by defective products from the producer to assimilated persons, i.e. supplier and importer [15]. Fourthly, unlike the responsible persons, the persons who benefit from such liability are not listed exhaustively, but their scope has broader coverage than the notion of "consumer" as it is defined by regulations established in consumer protection field. Indeed, unlike consumerist regulations, which establish the subjective meaning of the term "consumer" and offers protection for purchasers and / or users of products, the beneficiaries of liability for damages caused by defective products includes "innocent bystanders", i.e. people which do not acquire and do not use products, but still suffer accidentally damage from its defects. Fifthly, if at the level of responsible persons for damages caused by defective products, Directive makes a distinction between professional and non-professional, the latter not being liable if they manufactured the product for their own use without putting it into circulation, this distinction doesn t operates at the level of the victims. So if liability established by the Directive appears to be limited at the level of the persons who may be responsible, at the levels of the persons which are protected it is unlimited. Sixthly, the liability for damages caused by defective products, according to article 2 of the Directive, respectively article 2 para. (1) letter b) of Law no. 240/2004, is limited to movables even if incorporated into another movable or immovable. However, the Directive (referring to all movables even if incorporated into other immovable) has the particularity to treat as movables both things embedded in immovable and Page 5

qualified by the national legislature immovable by their nature (article 537 of the Civil Code, last these) and the movable things separated from the immovable, to be reinstated in the same immovable or things that are intended to replace the separated one, qualified by the national legislature as immovable by determination of law (article 538 of the Civil Code). So, Directive s provisions don t recognize immobilization of movable things by incorporation into an immovable. European legislator s option is justified by the need to compensate the fact that the immovable are not considered products. Seventhly, the producer will be liable if the injured person will prove the following conditions: the damage, the defect of product, the causal relationship between damage and defect, the absence of exonerating from liability clauses. Therefore, the producer's liability is based on product defect, his behavior having no relevance. Eighthly, the producer's liability for damage caused by defective products is distinct from other forms of liability existing in national legal system, which, however, does not exclude them. Specifically, according to article 9 of Law no. 240/2004, the provisions of this law shall not affect any rights which an aggrieved or injured person may have according to the rules of contractual or non-contractual liability or of other special liability system existing at the date of entry into force of this law. Ninthly, the compensation for damage caused by defective products established by the Directive covers damage caused by death or by personal injuries and property damage. Property damage must satisfy the following criteria: it suppose damage to, or destruction of, any item of property other than the defective product itself; the item of property must be intended for private use; the item of property must be used by the person who has suffered the loss for his own private use or consumption; the total damages claimed by a person in respect of loss of property must exceed the RON equivalent of EUR 500. These criteria are required by article 9 of the Directive, respectively, article 2 para. (1) letter b) of Law no. 240/2004. Per a contrario, material damage excludes damage resulting from damage or destruction of the defective product itself; any damage caused by defective product to the item of property needed for the exercise of the profession (professional use); damage caused by the defective product to the item of property intended and used for private consumption whose value is less than the RON equivalent of EUR 500. Tenthly, if the rights of injured persons are limited by Directive to material damages expressly provided in the content of article 9, the non-material (moral) damages can be claimed by victim according to national provisions relating to non-material damage, as well. This solution results from the provisions of paragraph 9 of the preamble to the Directive. Specifically, according to the quoted text, this Directive should not prejudice compensation for pain and suffering and other non-material damages, payable, where appropriate, under the law of the Member States. In the eleventh place, liability for damages caused by defective products is an imperative responsibility. Legal status of this liability is governed by rules of public order, which cannot be derogated from, any clause of restricting or removing this liability is absolutely void [17]. The absence of an express prohibition towards clause to aggravate the liability can be interpreted as allowable clause. In the twelfth place, the action for compensation can be bring within a three years starting from the day on which the plaintiff became aware, or should reasonable have become aware of the damage, the defect and the identity of the producer, but no later than the end of a period of ten years, which shall begin to run from the date on which the producer put into circulation the actual product which caused damage [18]. Therefore, the Directive establishes two limitations in time, i.e. one for filing an action for compensation and the other for the producer s liability. CONLUSIONS Liability for damages caused by defective products established by Directive 85/374/EEC and transposed into national law by Law no 240/2004 materialize the European legislator effort to settle down a common Page 6

regulatory framework at EU level in a narrow segment of private law. This solution is justified by the European legislator in the paragraph 1 of the preamble to the Directive. Specifically, it shows that "the existing divergences between the laws of the Member States may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property". The differences between the legal systems of the Member States could be avoided only by introducing a new form of civil liability common for all Member States. This form of liability cannot be framed in traditional forms of civil liability and cannot be nominated by using concepts enshrined in the national legal system for classical forms of civil liability. Explicit texts of the European normative act undoubtedly place us in the presence of civil liability. Instead, the purpose and objectives of the Directive and the peculiarities of liability for damages caused by defective products requires avoiding any attempt to implement the solutions established in legal systems of the Member states by using the assimilation method because of their wide variety. The proper application of liability for damages caused by defective products requires the precisely following of the solutions established by the European legislator. BIODATA - Teodor BODOAŞCĂ is PhD Professor at Faculty of Law and Rector of the Dimitrie Cantemir University, Bodoni Sandor 3-5, Tîrgu Mureş, Mureş, Romania. - Natalia SAHAROV is PhD Assistant professor at Dimitrie Cantemir University, Bodoni Sandor 3-5, Tîrgu Mureş, Mureş, Romania. REFERENCES 1. Directive 85/374/EEC was published in the "Official Journal of the European Communities", no. L210 of 7 August 1985. This Directive was amended by Directive no. 1.999/34/CE of the European Parliament and of the Council (published in the "Official Journal of the European Communities", no. L141 of 4 June 1999). Brevitatis causa, in order to avoid any repetition and simplify the expression further in the study, references to Directive no. 85/374/EEC will be usually without any indication of the legislative act or will be made by using the term Directive. 2. M. Józon, Răspunderea pentru produsele defectuoase în Uniunea Europeană, Editura C. H. Beck, Bucureşti, 2007, p. 3. 3. Government Ordinance no. 21/1992 on consumer protection was republished in the Official Gazette no. 208 of 28 March 2007. 4. Law no. 240/2004 on producer responsibility for damages caused by defective products, published in the Official Gazette no. 552 of 22 June 2004, republished in no. 313 of 22 April 2008 as amended by Law no. 363/2007 on combating unfair practices between professionals and consumers traders and harmonization of the legal provision with european legislation regarding consumer protection; Law no. 76/2012 for the implementation of Law no. 134/2010 on the Code of Civil Procedure, published in the Official Gazette no. 365 of 30 May 2012. 5. H. Gaudemet-Talon, Droit privé et droit communautaire, în Revue du Marché commun et de L Union Europeéne nr. 437, aprilie 2000, p. 229, apud, L. R. Boilă, Răspunderea civilă delictuală obiectivă, Editura C. H. Beck, Bucureşti, 2008, p. 184, nota 1. 6. L. R. Boilă, Răspunderea civilă delictuală obiectivă, Editura C. H. Beck, Bucureşti, 2008, p. 177. 7. J. Goicovici, Dreptul consumației, Editura Sfera Juridică, Cluj-Napoca, 2006, p. 146. 8. Law no. 287/2009 of the Civil Code was published in the Official Gazette. no. 511 of 24 July 2009 and republished in no. 505 of 15 July 2011. Law no. 287/2009 entered into force on 1 October 2011, according to article 220 para. (1) of Law no. 71/2011. Brevitatis causa, in order to avoid any repetition and Page 7

simplify the expression further in the study, references to Law no. 287/2009 on the Civil Code shall be made by using expression "the current Civil Code". 9. Note that, in the work Drept civil. Obligații (în reglementarea noul Cod civil), the renowned specialist Paul Vasilescu refers to product liability under "subsection 7.3.1", dedicated to the analysis of liability for damage caused by objects in general "(in this regard see P. Vasilescu, civil Drept civil. Obligații (în reglementarea noul Cod civil), Editura Hamangiu, Bucureşti, 2012, p. 656). 10. Note that, the draft of the new Civil Code of 2004 (published in "Curierul Judiciar" no. 3/2004, p 134-375) didn t liability for defective products by using a note of reference for liability for defective products, but devote for its regulation a distinct place, although exaggerated to be restricted to two articles, i.e. article 1116 and article 1117. 11. See article 3 of Law no. 240/2004. 12. I. I. Bălan, Răspunderea civilă pentru produsele cu defecte în reglementarea Legii nr. 240/2004, în Dreptul nr. 12/2004, p. 54. 13. I.-Fl. Popa, Protecția consumatorului. Răspundere pentru produse defectuoase. Prejudiciu corporal, în Pandectele Române nr. 6/2005, p. 133-134. 14. L. Pop, I.-Fl. Popa, S. I. Vidu, Tratat elementar de drept civil. Obligațiile (conform noului Cod civil), Editura Universul Juridic, Bucureşti, 2012, p. 532. 15. A Bénabent, Droit civil. Les obligations, ed. a 7-a, Montchrestien, Paris, 1999, p. 411, apud, I. I. Bălan, op. cit., p. 54. 16. According to article 6 of Law no. 240/2004, the injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage. 17. According to article 10 of Law no. 240/2004, any contractual clause for limitation or exclusion of liability of the producer shall be void. 18. According to article 11 of Law no. 240/2004, the proceedings for the recovery of damage is limited to a period of three years which shall begin to run from the day on which the plaintiff became aware, or should reasonable have become aware of the damage, the defect and the identity of the producer but the action for the recovery of damage can not be filed after a period of ten years from the date on which the producer put into circulation the actual product which caused the damage. Page 8