Copyright (c) 1999 University of Texas at Austin School of Law Publications, Inc.Texas International Law JournalWinter, 199934 Tex. Int'l L.J. 71LENGTH: 16846 wordsARTICLE: German Approaches to Product LiabilityNAME: Manfred Wandt *BIO: * Professor of Law, holder of the Chair in Private International and Comparative Law and managing director of the Institut f<um u>r Rechtsvergleichung at the Johann Wolfgang Goethe University at Frankfurt. The author would like to thank Petra Geiger, LL.M., Columbia University, 1997.SUMMARY: ... German products liability law relies on three concepts: traditional contractual liability, traditional tort liability, and strict liability based on specific statutes, such as the Products Liability Act of 1990, which implements the European Products Liability Directive, and the Pharmaceutical Products Act of 1976, amended last time by the Pharmaceutical Products Actof February 25, 1998. ... Products Liability Based on Contract ... Therefore, the major issues in German products liability are the existence and scope of duties of care. ... Strict Liability Claims Under the German Products Liability Act of 1990 ... Thus, the Act extends the concept of products liability to parties who could not be successfully sued for damages under traditional German tort law without requiring the plaintiff to prove they had violated their duties of care. ... Liability under the Products Liability Act is subject to two time-based defenses. A statute of limitations bars strict products liability claims after three years. ... Under the repose statute of the Act, a strict products liability claim expires ten years after the manufacturer has put the defective product into circulation. ... The courts have evolved a specific products liability law by establishing duties of care within the system of general tort law. ... However, the courts have not used these difficulties as an excuse to surrender products liability in favor of contract law to the detriment of the consumer, as some of their critics have proposed. ... The Products Liability Act has not improved this situation significantly. ... TEXT: [*72] I. Introduction German products liability law relies on three concepts: traditional contractual liability, traditional tort liability, and strict liability based on specific statutes, such as the Products Liability Act of 1990, n1 which implements the European Products Liability Directive, n2 and thePharmaceutical Products Act of 1976, amended last time by the Pharmaceutical Products Actof February 25, 1998. n3 These three competing concepts supplement each other in a complex way. Rather than replace German autonomous n4 products liability law, the new Products Liability Act adds a strict liability claim which is not available under the traditional German Civil Code doctrine. n5 In general, a German plaintiff will bring his or her products liability claim under theories of both negligence and strict liability. As the buyer of a product,he might also seek to hold the seller liable on a contractual basis for any injuries caused by the product. n6 This article, therefore, describes a variety of alternative claims that a plaintiff may file under German law.II. Products Liability Based on Contract In German contract law, compensation for damages resulting from a defective product is granted under narrowly defined conditions. A buyer may only claim damages if the seller fraudulently concealed a defect, or if the good did not conform to a statement regarding its quality - i.e., a breach of an express or implied warranty. n7Codified German contract law, however, does not provide sufficient protection for the consumer for the following reasons: . fraudulently concealed defects are difficult to prove; n8. not all product information can be considered a warranty n9. the claim for damages based on a breach of warranty is subject to an extremely short statute of limitations of six or twelve months after delivery of the good; n10 [*73] . only the seller, and not the manufacturer, can be held liable; n11 and. only the buyer may recover damages. n12 German courts have filled some, but not all, of the gaps in contract law. In some instances, the courts have construed an independent consultancy agreement to avoid the statute of limitations under sales contract law. n13 Further, courts have developed a new concept called the Positive Vertragsverletzung (positive violation of a contractual duty). n14 This judge-made concept allows a buyer to recover damages not covered by Section 463 of the Civil Code - especially those resulting from personal injury and property loss (excluding the loss of the product itself). n15 Furthermore, the courts have extended the contractual protection to relatives and employees of the buyer who foreseeably come in contact with theproduct. n16However, German judges, by denying claims against the manufacturer under contract law, have refused to go as far as their colleagues in France and Austria. Thus, the German system of contractual products liability has remained incomplete, particularly because it does not protect all product users, especially innocent bystanders. Instead, the Federal Supreme Court in its 1968 landmark decision, the Fowl Pest Case, decided to enhance the consumer's protection from defective products under the principles of traditional tort law. n17III. German Civil Code Tort Liability Under the Negligence TheoryA. Liability Under Section 823, Paragraph 1 of the Civil Code1. Introductory Remarks Section 823, Paragraph 1, of the Civil Code n18 provides a catch-all provision for tort claims that is the leading tort provision in and outside of the products liability field. A person who willfully, or negligently, and unlawfully injures the life, person, health, freedom, property, or other right of another is liable to compensate him for any damages arising therefrom. n19 German products liability law developed under this rule before the Products Liability Act waspromulgated. [*74] Because the structure of Section 823, Paragraph 1 of the Civil Code was not designed to cope with the specific difficulties which arise in the area of products liability, the German courts had the challenging task of applying the provision to various product liability issues. In the last thirty years, courts have created a products liability doctrine without eliminatingfault as a necessary element in establishing the manufacturer's liability. n20 Because a strict liability
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