n Stellenbosch Law Review = Stellenbosch Regstydskrif - Main structures of product liability in German private and criminal law

Volume 20, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



With the liberation of world trade, the consumer is constantly confronted with goods that are not manufactured domestically. This gives rise to a cross-national discussion on product liability. This article describes the situation in Germany, a civil law country, which is not only the largest economy in the European Union, but which has also, since the late 19th century, been a "law-exporting nation" with great influence on the legal order of several other jurisdictions. It is first shown that in private law the ultimate consumer has no contractual or quasi-contractual rights to compensation against the manufacturer, because typically there is no direct contractual relationship. As a result, a solution for liability has to be found in the area of delict (tort). The article compares the traditional ''fault-based'' liability under paragraphs 823(1) and 831(1) of the German Civil Code, modified by the courts for product liability cases, and the ''strict'' liability of the EU-based Product Liability Act, and considers the new Rome II Regulation which was applicable from 11 January 2009. Since criminal proceedings can also play a role in cases of personal injury, this article also comments on the most important criminal law aspects of product liability.

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