Original scientific paper
Liability for damages without guilt according to the new Croatian and European law
Deša Mlikotin Tomić
Abstract
Legal issues of consumer protection include important areas of civil law regarding the liability for damages. It is lex specialis applicable to physical persons who have suffered harm due to a defective product. Only property damage is compensated which can be caused by death, corporal injury or damage to objects, but the injured party is always a physical person. By regulating these issues in European law, the Directive 374 of 1985 aims to reinforce the legal position of the injured consumer by making it easier to prove the defendant's guilt. This has been carried into effect by the introduction of objective liability for damages, liability without guilt, for which the criteria were established by the American judicature as the legal criteria of strict liability in the early 1960's. New regulations of the Law on Obligatory Relations represent a step forward by being clearly directed towards the injured party – the consumer.
The differences between contractual and non-contractual obligations for damages from the viewpoint of the injured party have been abolished. Although the Directive 374, and the innovations contained in the Law on Obligatory Relations take liability without guilt as a starting point, it cannot be concluded from all the applicable laws and their interpretation that it is an absolute principle of per se causality although such liability can be taken into account. If any reason for the exclusion or limitation of liability is referred to, there is a possibility to be exempted from liability, which is based on the principles of presumed guilt, since the burden of evidence lies with the producer. The author believes that exemptions do not call into question the contents and innovations of the principle of objective causal liability even if the case in point is relative causality. (The producer is liable regardless of guilt, but...) An important innovation is the absolute ban on contractual exemptions and limitations of liability. It is related to the producer, importer and any entrepreneur that places goods on the market. Transitional regulations of the Law on Contractual Obligations should regulate the issues of temporal validity of these bans since modern contracts on acquisition and delivery of goods as modern transformations of permanent sales contracts are made for a long or unlimited period. According to the author, the greatest innovation and contribution of the new regulation and adoption of the Directive 374 are imperative regulations regarding the producer as the person liable for damages. This concept includes importers, persons representing themselves as producers (using the seal) and distributors, who have been protected so far from liability for damages. Unfortunately, in the effort to preserve terminological integrity, the Law on Obligatory Relations has evaded modern concepts of autonomous commercial law: distributor and supplier, and has not defined with sufficient clarity the secondary liability for damages. By excluding the concept of supplier and defining this important subject descriptively as «the person who places goods on the market», the courts have been assigned a difficult task of interpreting and enforcing the Law on Obligatory Relations, and legal doctrine has been offered a wide area of research and interpretation of the European practice and law.
Keywords
damages; liability without guilt; causality; deficiency; exemption from liability; presumed liability; Directive 374; defective product; consumer protection; competition protection; safe product; serviceable product; producer; importer; distributor; suppl
Hrčak ID:
6440
URI
Publication date:
5.12.2006.
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