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Case:
Product Liability Act of 15 December 1989
BGBl I 1989, 2198 (as amended)
Date:
15 December 1989

§ 1. Liability

(1) If, as a result of a defect of a product, a human being is killed, is injured or affected in his health, or a thing is damaged, the producer† is obliged to compensate the person who suffered the damage for the ensuing harm. In the case of damage to property this rule applies only if an object other than the defective product is damaged and if this object is normally intended for private use or consumption and has been used by the injured party primarily for this purpose.

(2) The obligation to pay damages is excluded if:

1. the producer has not put the product into circulation;

2. it is to be assumed, having regard to the circumstances, that the product was not yet defective when it was put into circulation;

3. the producer has neither manufactured the product for sale or for any other form of distribution for a consideration nor has manufactured or distributed it in the course of his occupational activities;

4. the defect is due to the fact that at the time when the producer put the product into circulation it complied with mandatory legal provisions;

5. the defect could not yet be discerned, having regard to the state of art [literally: science and technique] at the time when the producer put the product concerned into circulation.

(3) In addition, the maker of the part of the product is exempt from the obligation to pay compensation if the defect was caused by the construction of the product into which the part was inserted or by the instructions of the maker of the product. Sentence 1 applies mutatis mutandis to a producer of a basic substance (Grundstoff ).

(4) The person who has suffered the harm has the burden of proving the defect and its causal connection with the harm. In a dispute as to whether the obligation to pay compensation is excluded according to sub-paragraphs (2) or (3), the producer bears the burden of proof.

§ 2. Products

Product in the meaning of this Act includes every moveable object, even if it forms part of another moveable or of an immovable as well as electricity. Produce of the soil, of animal husbandry, bee-farming, fishing, and hunting are exempt, unless they have undergone the first stage of processing.

§ 3. Defects

(1) A product is defective if it does not provide that degree of safety which can be justifiably expected, having regard to all the circumstances, in particular

(a) its presentation;

(b) its use which may be reasonably expected;

(c) the time when it was put into circulation.

(2) A product is not defective for the sole reason that later on an improved product was put into circulation.

§ 4. Producer

(1) Producer in the meaning of this Act is the person who has manufactured the final product, a basic substance or a component part of the product. Furthermore, whoever represents himself as a producer by attaching his name, trademark or other distinctive mark is regarded as the producer.

(2) Notwithstanding sub-paragraph 1, a person is also treated as a producer who, within the range of his commercial activity, imports into the area covered by the Treaty for the Establishment of the European Economic Community a product with a view to sale, hire, hire-purchase or any other form of distribution.

(3) If the manufacturer of the product cannot be ascertained, every distributor is treated as its producer, unless he indicates to the injured party within one month of receiving the latter’s relevant request who is the producer or the person who supplied him with the product. The same applies to an imported product in respect of which the person referred to in sub-paragraph (2) cannot be ascertained, even if the name of the producer is known.

§ 5. Several tortfeasors

If several producers are co-liable for the damage, they are jointly and severally liable. Between the debtors themselves, in the absence of provisions to the contrary, the liability to pay compensation and its extent depends upon the circumstances, in particular as to whether the damage has been caused predominantly by one or the other of them; furthermore §§ 421–5, 426 sub-paragraph 1, second sentence and sub-paragraph 2 BGB apply.

§ 6. Reduction of liability

(1) If the injured party is partly to be blamed for having caused the damage, § 254 BGB applies; if an object has been damaged, any blame attached to the person exercising physical control over it is treated as that of the injured party.

(2) If the damage has been caused at the same time by a defect of the product and by the act of a third party, the liability of the producer is not reduced. § 5 second sentence applies.

§ 7. Extent of damages in case of death

(1) In case of death, the expenses incurred in an attempt to restore health must be compensated together with the pecuniary loss suffered by the deceased in consequence of the loss or reduction of his earning capacity or of his increased needs. Damages also include the funeral expenses payable to the person responsible for them.

(2) If at the time of injury the deceased was connected with a third party by a relationship which rendered him, actually or potentially, liable by law to maintain that person, and if the third party lost his right to maintenance in consequence of the death, he is entitled to damages in so far as the deceased during the period of his life expectancy would have been liable to maintain him. This liability arises also if the third party was conceived at the time of death but not yet born.

§ 8. Extent of damages in case of injury to the person

If injury was caused to the body or to health, the expenses incurred in restoring health must be compensated together with the pecuniary loss suffered by the injured party resulting from the temporary or permanent loss or reduction of his earning capacity or from his increased needs. Fair compensation in money can also be demanded for non-pecuniary loss.

§ 9. Damages by way of periodical payments

(1) Damage arising in the future as a result of the total or partial loss of earning capacity and of increased needs together with the damages payable to a third party in accordance with § 7 sub-paragraph (2) is to be compensated by periodical payments.

(2) § 843 sub-paragraphs 2–4 BGB apply.

§ 10. Maximum rate of damages

(1) If death or injury to the person has been caused by a product or by products of the same kind affected by the same defect, the liability to pay damages is limited to a maximum of 85 million euros.

(2) If the damages payable to several injured parties exceed the maximum rate set out in sub-paragraph (1), the individual damages are reduced in proportion of their total to the maximum rate allowable.

§ 11. Extent of compensation in case of damage to goods

Where goods are damaged, the person who suffered the damage has to bear the loss up to 500 euros.

§ 12. Limitation of actions

(1) An action according to § 1 shall not be brought after the expiration of three years from the time when the claimant knew or could have known of the damage and of the person liable to pay damages.

(2) Time does not run if negotiations are pending between the persons liable to pay and to receive compensation until the continuation of the negotiations has been abandoned.

(3) Furthermore, the provisions of the BGB relating to limitation of actions apply.

§ 13. Extinction of claims

(1) A claim according to § 1 is extinguished after the expiration of ten years from the date when the producer against whom the claim is made has put the product into circulation. This does not apply where a law suit or summary proceedings are pending.

(2) Sub-paragraph (1), sentence 1 does not apply to a claim which has become res judicata or to a claim covered by another executory title. The same applies to a claim which is the subject-matter of an out-of-court settlement or which has been recognised by a legal act.

§ 14. Mandatory character

The liability of a producer in accordance with the Act cannot be excluded or restricted in advance. Any agreement to the contrary is void.

§ 15. Liability according to other legal provisions

(1) If, due to the application of a pharmaceutical product destined for human use and sold in the area of application of the Pharmaceutical Products Act, a person is killed or his body or health otherwise affected, the provisions of the Product Liability Act will not be applicable.

(2) Liability in accordance with other provisions remains unaffected.

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