AustriaProdukthaftungsgesetz (PHG), Strict Liability for Defective Products (Directive 85/374/EEC)
Produkthaftungsgesetz, BGBl. Nr. 99/1988
In force since .
A product liability rule binding private bodies.
- Private right of action
- Yes
- Instrument type
- an act of a legislature
As of .
What it requires
- Do not assume this Act answers whether standalone software is a product: section 4 covers a movable corporeal thing, including energy, and does not name software (§ 4).
- If you make a product, a basic material or a component, or put your name, trademark or another distinguishing mark on a product as if you made it, you answer as its manufacturer; so does an entrepreneur who imports a product into the European Economic Area for distribution and puts it into circulation (§§ 1(1) and 3).
- If neither the manufacturer nor the importer can be identified, name the manufacturer, the importer or your own supplier to the injured person within a reasonable time, or you answer as if you were the manufacturer (§ 1(2)).
- Offer the safety that one is entitled to expect in all the circumstances; a product is not defective merely because a better one was put into circulation later (§ 5).
- If you are the manufacturer or importer and deny that you put the product into circulation or acted as an entrepreneur, you carry the burden of proving it; if you say the defect did not yet exist when you put the product into circulation, show that this is probable (§ 7).
- Be ready to prove one of the exclusions, since a lack of fault does not excuse you: that the defect results from a legal rule or official order the product had to meet, that the state of science and technology when you put it into circulation did not allow the property to be recognised as a defect, or, as a maker of a basic material or component, that the design of the final product or its manufacturer's instructions caused the defect (§ 8).
- Do not rely on a contract term to exclude or limit your liability in advance (§ 9).
- Make provision, by insurance or otherwise, in the manner and extent usual in fair business dealing, so that compensation duties under the Act can be met (§ 16).
- Liability covers death, injury to body or health and damage to a physical thing other than the product, but damage to a thing that an entrepreneur mainly used in its business is not compensated, and the injured person bears the first EUR 500 of other damage to a thing (§§ 1(1) and 2).
- Claims expire ten years after you put the product into circulation, unless the injured person has asserted the claim in court by then (§ 13).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- Is software supplied on its own, without a data carrier, a 'bewegliche körperliche Sache' and so a 'Produkt' within section 4 of the Produkthaftungsgesetz?
What this law does
The Federal Act of on liability for a defective product is the Produkthaftungsgesetz. The Federal Law Gazette issue that publishes it is dated . The Justice Committee's report on the bill says that the bill is to adapt Austrian law to the directive of the European Communities on liability for defective products.
Section 1(1) makes the entrepreneur who made a product and put it into circulation liable to compensate damage when a defect in the product kills a person, injures the body or harms the health, or damages a physical thing other than the product. The importer, meaning the entrepreneur who brought the product into the European Economic Area for distribution and put it into circulation there, is liable in the same way.
Where neither the manufacturer nor the importer can be identified, every entrepreneur who put the product into circulation is liable unless it names to the injured person, within a reasonable time, the manufacturer, the importer or the person who supplied it. Section 3 treats as manufacturer the person who made the end product, a basic material or a component, and anyone who presents itself as manufacturer by affixing its name, trademark or another distinguishing mark.
Section 4 defines a product as any movable corporeal thing, even where it forms part of another movable thing or is joined to an immovable thing, including energy. A product is defective under section 5 if it does not offer the safety that one is entitled to expect in all the circumstances. A product cannot be regarded as defective merely because an improved product was put into circulation later.
A manufacturer or importer who asserts that it did not put the product into circulation, or did not act as an entrepreneur, bears the burden of proof. A defendant who asserts that the product did not yet have the defect when it was put into circulation must show this to be probable in the circumstances. Under section 8, liability is not excluded by a lack of fault but only by proof of one of three grounds.
The first ground is that the defect is due to a legal rule or official order that the product had to meet. The second ground is that the properties of the product could not be recognised as a defect according to the state of science and technology when the defendant put it into circulation. The third ground, open to a maker of only a basic material or component, is that the design of the product it went into, or the instructions of that product's manufacturer, caused the defect.
Under section 2, damage to a thing is compensated only where an entrepreneur who used the thing mainly in its business did not suffer it, and only for the part exceeding EUR 500. Section 9 bars excluding or limiting the duty to compensate in advance. Section 13 makes claims under the Act that are not time-barred earlier expire ten years after the liable person put the product into circulation, unless the injured person has meanwhile asserted the claim in court.
Section 14 applies the General Civil Code to the claims unless the Act provides otherwise. Section 15(1) leaves untouched provisions of the General Civil Code and other rules under which damage is compensated to a wider extent or by other persons. Section 16 obliges manufacturers and importers to make provision, by insurance or otherwise and in the manner and extent usual in fair business dealing, so that compensation duties under the Act can be met. The Act entered into force on .
The Act does not apply to damage caused by products put into circulation before it entered into force. The consolidated text on the Legal Information System records the Act as last amended in 2001. Section 4 and section 8 took their present wording on , and the new wording does not apply to products put into circulation before that day.
Section 2 took its present wording on , and the new wording does not apply to damage caused by products put into circulation before that day.
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.