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Tort Law — Product Liability (Produkthaftung)

Date Citation Note
12.12.2000 BGH NJW 2001, 964 VI. Civil Senate (VI ZR 345/99) = ZIP 2001, 379 Limitation period runs from the moment of harm and knowledge of the identity of the person who has to pay
Position where more than one possible defendant exists
§§ 425, 852 BGB
09.05.1995 BGHZ 129, 353 VI. Civil Senate (VI ZR 158/94) = NJW 1995, 2162 Exploding mineral water bottle
Supervision of production
Case note
§ 823 BGB
§ 1 ProdHaftG
19.11.1991 BGHZ 116, 104 VI. Civil Senate (VI ZR 11/91) = NJW 1992, 1039 = JZ 1993, 671 Claimant and guests caught salmonella at wedding breakfast at second defendant's restaurant from food prepared by first defendant; first defendant not liable for damages for pain and suffering as no proof of fault and no reversal of burden; second defendant liable for such damages and for refund; liability under §§ 823(1), 847; product defective when put in circulation, so producer (even in small business) must prove no fault; no liability under § 823(2) and Food Act, as no proof of fault; holiday foregone not economic harm, but relevant to damages for pain and suffering.
§ 823 BGB
07.06.1988 BGHZ 104, 323 VI. Civil Senate (VI ZR 91/87) Mehrwegflaschen -decision = NJW 1988, 2611 Defendant produced carbonated drinks in reusable bottles made by third party Claimant's eyes injured when bottle exploded due to insufficient filling or crack Defendant should have done what was possible and reasonable to ensure safety of bottles, bearing in mind normal and foreseeable later usage Damage might have been caused after marketing by defendant Claimant could not rely on prima facie proof to escape burden of proof But where defect typically arose within manufacturer's control, defendant must show defect occurred afterwards and be able to produce data about this
§ 823 BGB
§ 282 ZPO
28.06.1979 BGHZ 75, 75 VII. Civil Senate (VII ZR 248/78) = NJW 1979, 2036 = BB 1979, 1257 Claimant had glass units installed and sought compensation over 5 years later after condensation appeared; contract between defendant manufacturer and supplier had 5 year warranty (providing for replacement) for benefit of ultimate acquirer (as a sufficiently ascertainable third party (§ 328)
Warranty took effect immediately although claimant unaware of it for over 5 years
It is only necessary that damage should occur within 5 years; warranty ancillary to warranty under installation firm's contract for sale and work concerning non-fungible goods
Claimant could claim compensation
Limitation period (5 years, as for corresponding claim of ultimate acquirer) only began with discovery of defect
§§ 328, 638 I BGB
11.07.1972 BGHZ 59, 172 VI. Civil Senate (VI ZR 194/70) = NJW 1972, 2217 = VersR 1972, 1075 Claimant injected in artery instead of vein with anaesthetic produced by defendant; amputation necessary; defendant's warning against intra-arterial injection
Liability under § 823 I as insufficient information about especially dangerous nature of medicament, and accidental intra-arterial injection not avoidable with certainty
Liability not affected by negligence of doctor,
§ 840 I
§§ 845, 1356 BGB
26.11.1968 BGHZ 51, 91 VI. Civil Senate (VI ZR 212/66) Hühnerpest -decision = NJW 1969, 269 See JZ 1969, 387 for an approving note by Diederichsen and VersR 1969, 155 for an approving note by Deutsch Vet innoculated chickens against fowl pest; fowl pest broke out as vaccine infected; owner sued manufacturer
No contractual claim for damage suffered by third party (Drittschadensliquidation) or contract with protective effect for third parties
No extension of strict liability, tacit direct warranty, duty of protection under social contract or quasi-contractual relationship based on confidence
Liability in tort under § 823 I and II as infringement of protective enactment (§ 6 AMG)
Defendant needed to exonerate himself, as evidence suggested fault
Not enough in product liability case for defendant to show defect might have arisen without organisational fault
§§ 249, 823 BGB