Legal Aspects International Trade

PRODUCT LIABILITY

SUBMIT TO:

PROF. FERNANDO MONTERO

PRESENT BY:

AKASH PATEL-000332846

TEJAS BARVALIYA-000338855

CONTENTSIntroduction.What is Product Liability?What is Contractual Law?What is Tort and Negligence Laws?What are the Major Types of Product Liability Claims?Three Theories Based on Which a product Liability Claim may

be Raised.Liability and Damages.Hauge International Convection.Sale Goods Legislation.Defences, Evidentiary Issues and Product Recall in Canada.Quebec Product Liability. Conclusion.References.

Product Liability:

Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has broad connotations, product liability as an area of law is traditionally limited to products.

Lawsuits are expensive, complex and time consuming, and liability is something entrepreneurs should consider for every aspect of their supply chain.

CONTRACTUAL LAWS: A base of product liability is starting point of the contract, to express the

clauses of governing liability and if its not their then is their any governing law. CISG(Convention on Contracts for the International Sale of Goods) is main

element in most contracts, its is particularly state in Article 4 and 5 that it does not cover product liability.

Article 4: Convention acts only for formation of the contract of scale and the rights and obligations of the seller and buyer arising from such contract, it is not concerned with:

1. The validity of contract or any of its provisions or of any usage.2. The effect on which the contract may have on the property in the good sold.

Article 5: This convention does not apply to the liability of the seller for death or personal injury.

Contractual law is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them.

A breach of or failure to meet contractual obligation are ground for product liability.

TORT & NEGLIGENCE LAWS:

TORT LAW: has evolved as the section of law that compensates the section of law that compensates parties injured by others (whether by other people or the products they produce) as opposed to criminal law, which punishes acts deemed wrong by society. Tort law also covers that part of the law where a non contract damage or injury occurs.

Damage or injuries to consumer as manufacturer has not taken every precaution to ensure safety and proper function of a product, leave manufacturer open to product liability claim.

Predominantly there are the major types of product liability claims by

ground of Negligence: Manufacturing defect: The product is not made according to

specifications. For example, a part is missing. Design defect: The product is built to specifications, but the

specifications are faulty and the manufacturer knew or should have known about the flaw. For example, a bridge collapse due to incorrect engineering calculations.

Failure to warn of potential hazards: Manufactures have a duty to warn consumers about any defects or possible dangers in their products. For example, dangerous long term effects using a pharmaceutical drug.

In most countries, negligence laws have plaintiff to prove that damage or injury is made by manufacturer

In case of Tort law the basic rule of civil liability apply unless there is a criminal law provision that punishes such acts.

Three Theories based on which a product liability claim may be

raised:

Negligence.Breach of warranty,

A.Express warranty.B.Implied warranty.

a)Of merchantability.b)Of fitness for particular purpose.

Strict tort liability.

LEGISLATION:

Increased standards have meant safer products of higher quality for consumers and a mandatory commitment to responsibility from manufacturers, suppliers and importers with regards to safety, complains and regulations.

U.S. :- Most product liability laws are enacted at the same level and while they vary from state with regard to standards of proof, since the 1960s most are based on strict liability as opposed to proving the manufacturer’s negligence.

EU :- As of 1977, the EU also began to move toward the theory of strict liability to reinforce its commitment to a common market where all members have common laws. In 1981 Treaty of the European Union states.

Australia :- Replacing the common law principles of tort that had governed compensation due to loss or injury from product defects, Australia’s product liability law, enacted in 1992.

Taiwa:- In 1994, Taiwan imposed a strict liability law to replace the existing negligence-based laws that required n injured parties to prove the manufacturer was at fault or negligent.

Japan :- Going into effect January 1, 1995, Japan’s product liability law holds a manufacturer responsible for property damage or personal injury caused by a defect in a product.

Hong Kong :- The only product safety law in Hong Kong is the Toys and Children’s Product Safety Ordinance (1993), which states that reasonable safety is required for all toys manufactured, imported or supplied.

LIABILITY AND DAMAGES

Product liability discourages manufactures from selling defective products by forcing them, once found liable, to compensate the injured party for perceived and actual damages.

INTERNATIONAL CONVECTION ON PRODUCT LIABILITY

Hauge Convection on the Law Applicable to Products Liability established common provisions with regards to international product liability unless states are to some other public policy or international agreement.

SALE OF GOODS LEGISLATION IN CANADA

Sale of Goods legislation in the common law provinces implies specific conditions into most contract of scale. The specific conditions which the seller must meet are: that the goods are fit for a specific purpose and that the goods are of merchantable quality.

1.Application of Sale of Goods Legislation.2.Fitness for purpose- Implied Condition.3.Merchantable Quality- Implied Condition.

DEFENCES FOR CANADA

There are many general defences that may apply to a product liability claim. The most common are: Compliance with requisite standards, contributory negligence, assumption of risk,

intervening causes, misuse of products, learned intermediaries and limitation periods.

EVIDENTIARY ISSUES IN CANADA

While the rules of evidence in a product liability case are not different from any other negligence case, careful consideration must be given to the following issues: burden of proof, causation, expert evidence and spoliation.

PRODUCT RECALL IN CANADA

Companies involved in the business of manufacturing and distributing either automotive products or food and drug products may be subject to mandatory recalls required by law and/or initiated by government regulatory agencies. Recalling a product is a planned action that is either voluntarily initiated by a manufacturer or mandated by a government agency. Manufacturers, importers, distributors, retailers, repairers, as well as consumers, are all impacted by a product recall.

QUEBEC PRODUCT LIABILITY

Quebec product liability law is not the same as in the rest of the country or the US.

The province of Quebec distinguishes itself from the rest of Canada in that its private law is governed not by the common law, but by a Civil Code containing a comprehensive set of legal principles covering all aspects of civil law. Provincial statutes complete this legal framework. The general principles of Quebec product liability law are contained in the Civil Code, while specific provisions applicable to consumers only are contained in the Consumer Protection Act.

CONCLUSION

In Canada, CCSPA the laws governing product liability has made the legal system more strong. The Judiciary has helped to bring the concept of Product Liability with in the reach. It makes the producer more careful to save us from consumption of defective goods and services. However, Canada remains a somewhat more judicially conservative jurisdiction in term of damage awards but perhaps that too will charge in due course.

REFRENCES & VIDEO

http://www.blg.com/en/NewsAndPublications/Documents/publication993_EN.pdf

http://web.uslaw.org/wp-content/uploads/2013/10/Nigel-Kent-Jordan-Watson-USLAW-mag-article.pdf

http://www.fasken.com/files/Publication/ddbc666d-d8a2-4b6e-9fc4-3886505ab6e4/Presentation/PublicationAttachment/30b2dea4-73c3-411c-a507-da3a7308ef8c/OVERVIEW_OF_QUEBEC_PRODUCT_LIABILITY_LAW.PDF

VIDEO

https://www.youtube.com/watch?v=ZBS2bHnz72A

THANK YOU

Any Questions?