When was the term computer error introduced?

Product liability

Product liability includes personal injury and property damage caused by defects that the product had when it was placed on the market.

What damage is responsible for?

Product liability includes personal injury and property damage caused by defects that the product had when it was placed on the market by the party liable. Personal injuries will be reimbursed without any restriction between consumer and entrepreneur (no deductible). The property damage must have occurred in an item different from the defective product, whereby only privately used items are replaced within the scope of the Product Liability Act (PHG).

A product in the sense of the PHG is any movable tangible thing, even if it is part of another movable thing or has been connected to an immovable thing, including energy. A product is considered to be defective if it does not offer the security that one is entitled to expect, taking all circumstances into account. It depends on the objectively justified security expectations and the presentation of the product.

Danger! The standard for security expectations can be increased through advertising statements or special guarantees.

Possible types of error include design errors, production errors ("outlier damage") and instruction errors (instructions for use).

However, not all consequential damage will be replaced. The mere pecuniary loss, the lost profit and the so-called "further eaters", which arise as a result of the defect in the thing itself (eg defective water hose destroys the rest of the engine), will not be compensated. These damages may be compensated under the general law on damages.

With regard to private property damage, there is a deductible of EUR 500 for the injured party.

Example: 
Max falls on his bike due to a product defect, breaking the handlebars and a vase carried on the luggage rack. As part of product liability, pain and suffering payments can be requested for any injury sustained in the event of a fall and, apart from the deductible, compensation for the destroyed vase can be claimed. The broken bike will not be replaced within the scope of product liability.

Who is liable under the PHG?

Basically, the liability for damages applies to the manufacturer (producer of end and partial products or basic materials), the quasi-manufacturer (these are entrepreneurs who provide externally produced products with their identifying marks, names, brands, etc.) and the importer who is the first to sell the product Sales in the European Economic Area (EEA) or EU and brought into circulation here.

However, a dealer can also become liable if the manufacturer or importer cannot be determined for the injured party. The dealer can, however, exempt himself from liability if he can verifiably identify the manufacturer or his sub-supplier to the injured party within a reasonable period of time (approx. 1-2 weeks) (dealers should record the origin of the products as precisely as possible). Quasi-manufacturers cannot exempt themselves from product liability by naming the actual manufacturer.

Manufacturers of components or raw materials only have to be responsible for the products that they have manufactured incorrectly if precisely this component or raw material is the cause of the damage. The manufacturer of end products is also liable for defects in basic materials or partial products (however, the partial manufacturer can recourse!).

Danger: Liability according to the PHG is independent of fault and can neither be excluded nor limited in advance.

A product is considered to have been placed on the market if it was brought out of the manufacturer's / importer's power of disposal at the will of the manufacturer / importer (factory gate principle). It does not depend on the payment.

Who can claim damages under the PHG?

Not only the individual contractual partners are covered by the protective effect, but also uninvolved third parties (so-called "innocent bystander").

Example: 
Example case as above, only the vase does not belong to Max, but to Moritz. Moritz can claim the damage caused to him by the broken vase within the scope of the PHG, whereby he has to bear a deductible of EUR 500.

Disclaimers of Liability

The following exemptions from liability are possible:

  • the manufacturer or importer proves that the product was not placed on the market by him (e.g. the product was stolen from the factory);
    Note: In the case of dealers, the injured party must prove that the defective product was placed on the market by this dealer.

  • the manufacturer, importer or dealer can prove that the product was free from defects at the time it was placed on the market, whereby no full proof (probability is sufficient) has to be provided;

  • the defect in the product is due to compliance with mandatory legal provisions that applied at the time it was placed on the market;

  • the product corresponded to the state of the art at the time it was placed on the market, so that the defect could not be qualified as such at that time.

How long can product liability claims be asserted?

The claim for damages from product liability expires 3 years after knowledge of the damage and the damaging party, in any case after 10 years after the product causing the damage has been placed on the market.