The Gazette 1986

GAZETTE

MARCH 1986

Moreover, para. 2 of Article 3 provides that a person who imports into the Community a product for sale, hire, leasing or any form of distribution in the course of his business is to be deemed to be a producer within the meaning of the Directive and is responsible as a pro- ducer. Finally, where the producer of the product cannot be identified, each supplier of the product is treated as its producer unless he informs the injured person "within a reasonable time" of the identity of the producer or of the person who supplied him with the product: Article 3, para. 3. The same rule applies, in the cases of an imported product, if this product does not indicate the identity of the importer referred to in Article 3, para. 2, even if the name of the producer is indicated: Article 3, para. 3. It is scarecely surprising that manufacturers of finished products, producers of raw materials and manufacturers of component parts should be treated as " p r oduc e r s" for the purposes of the Directive. Nor, on reflection, should it be a matter of serious debate that those who present themselves as producers by putting their name, trade mark or other distinguishing feature on a product should also be treated as "p r oduc e r s ". This practice is "particularly common amongst large retail organisations" 12 and has been part of Irish mercantile life for several years. It would be curious if, having presented a product as their own to the public, the retail organisation should then be allowed to disclaim strict liability on the basis that really the article was not really "their" product. It is perhaps worth mentioning the argument, rejected by the terms of the Article, that strict liability should be limited to producers of the finished product rather than extending to the producers of raw materials. The impos- ition of liability on the latter group does after all increase the costs of insurance, administration and litig- ation. Nevertheless, as the Pearson Commission pointed out 13 limiting strict liability to producers of the finished product would be open to a number of objections: "The main one is that there would be a greater risk that the injured person would be deprived of a remedy, for example if the producer of the finished product proved to be either bankrupt or uninsured. There might even be a deliberate evasion of liability by setting up an expendable company as a front for the real producer; and, even where that was not done, component producers would often be more substantial companies than the producer of the finished product, and to that extent better able to bear the burden of insurance . . . If strict liability were to be confined to the producer of the finished product, there might sometimes be difficulty in distinguishing the finished product fróm the component, perhaps especially with respect to natural products". It is also of interest to note the English Law Commis- sion's argument in favour of including the manufacturers of component parts within the definition of "producer": "Some components such as altimeters or television tubes, are extremely sophisticated instruments and it would be reasonable to expect greater facilities for checking the safety of the component to be available to the person who made it than to the maker of the product into which the component was finally incor- porated. It might be wholly unreasonable to expect a

Certainly the experience of other countries with a strict liability system for defective products suggests that negligence notions tend to have a continuing influence. (1) The Meaning of "Pr oduc t" A " p r o d u c t" is defined in Article 2 as including all movables except "primary agricultural products" and game, even where the movables are incorporated into other movables or into immovables. "Primary agricul- tural products" are defined by the same Article as meaning " t he products of the soil, of stock-farming and of fisheries, excluding products which have undergone initial processing." Electricity is deemed a " p r o d u c t" for the purpose of the Directive. This exception relating to "primary agricultural pro- ducts" is an important one for this country, but the dividing line between products that have undergone "initial processing" and those that have not may some- times be different to draw. As the English and Scottish Law Commissions have observed: "even fresh vegetables, which at first sight would seem to be a good example of unprocessed natural products, may have been sprayed by chemicals and the land in which they grew artificially fertilised." 9 Any Member State may, by way of derogation from Article 2, provide in its legislation that " p r odu c t s" are to include primary agricultural products and game. 1 " The general exclusion of immovables should be noted. In the law of negligence, immovables (or, in ordinary tort parlance, land) tended to remain outside the scope of a full duty of care. It is only in recent years that the exemptions from liability for owners and builders have gradually been swept away." The Directive will not apply, for example, to a defective house which collapses, save to the extent that any movable "incorporated i n t o" the house is defective. Thus, if a girder installed in a home is defective and this brings about the collapse, the Direct- ive may apply. Since most immovables are composed of movables which are "incorporated i n t o" the whole, this potential range of application should not be ignored. But in such cases it would be necessary to show that the particular movable (or movables) was itself (or were themselves) defective; in other words, a defective com- bination into an immovable of movables which them- selves are not defective would not appear to fall within the scope of the Directive. Finally, it should be noted that Article 17 provides that the Directive is not to apply to products (as defined by Article 2) put into circulation before the date on which the legislative and administrative provisions nec- essary to comply with the Directive enter into force. By virtue of Article 19 (as has already been mentioned) Member States are required to do this before 30 July 1988. Who is a "Producer"? A " p r o d u c e r" is defined by Article 3, para. 1 as one who is: (a) the manufacturer of a finished product; (b) the producer of any raw material; (c) the manufacturer of a component part; and (d) any person who, by putting his name, trade mark or other distinguishing feature on the product, presents himself as its producer.

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