BelgiumCivil Code Book 6, Articles 6.41 to 6.55, Liability for Defective Products (Directive 85/374/EEC)
Burgerlijk Wetboek, boek 6, artikelen 6.41 tot 6.55
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 regime answers whether standalone software is a product: Book 6 defines a product as a corporeal movable good, joined to another movable or immovable good or not, adds electricity, and does not name software (Art. 6.42).
- If you make a finished product, a component part or a raw material, or put your name, trade mark or another distinguishing sign on a product so as to present yourself as its maker, you answer as its producer for the damage a defect in it causes (Arts. 6.41 and 6.43).
- If you import a product into the European Union in the course of your economic activities to sell it or transfer its use to a third party, you answer like the producer (Art. 6.44, first paragraph).
- If you supply a product and the producer (or, for an imported product, the importer) cannot be identified, you are treated as the producer unless you tell the injured person within a reasonable time who the producer or importer is, or who supplied the product to you (Art. 6.44, second paragraph).
- Judge each release against the safety people are entitled to expect in all the circumstances, among them how the product is presented, its normal or reasonably foreseeable use and the time you put it into circulation; a later, better product does not make the earlier one defective (Art. 6.45).
- Be able to prove a defense, because the injured person need prove only the damage, the defect and the causal link: that you did not put the product into circulation, that the defect probably did not exist then or arose later, that the product was not made for sale or distribution with an economic purpose or in the course of your profession, that the defect results from compliance with mandatory rules of the public authorities, or that scientific and technical knowledge when you put it into circulation made the defect impossible to discover (Arts. 6.47 and 6.48(a) to (e)).
- If you make a component or a raw material, keep the design and instruction records of the product it went into: you are excused if the defect is due to that product's design or to its producer's instructions (Art. 6.48(f)).
- Answer jointly with every other person liable under this section for the same damage, subject to rights of recourse (Art. 6.49).
- Do not rely on a contract term to limit or exclude your liability to the injured person; the liability can be limited or excluded where the injured person's own fault, or that of a person they answer for, contributed to the damage, but not where a third party's act did (Art. 6.50).
- Plan for claims for personal injury, moral damage included, and for damage to goods of a type normally intended for private use or consumption that the injured person mainly used that way; damage to the defective product itself is not compensated, and compensation for damage to goods is due only above a deductible of five hundred euros (Art. 6.51).
- Plan for the injured person's right to compensation to be extinguished ten years after you put the product into circulation unless proceedings were brought within that period, and for the action to prescribe three years after the injured person reasonably should have known the damage, the defect and the producer's identity (Art. 6.52).
- Do not treat this section as the whole of your exposure: it leaves the injured person's rights under the law of contractual and extra-contractual liability untouched (Art. 6.53).
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 physical carrier, a corporeal movable good (lichamelijk roerend goed) and so a product within Article 6.42 of Book 6 of the Civil Code?
What this law does
Article 6.41 makes the producer liable for the damage caused by a defect in its product. Article 6.42 defines a product as any corporeal movable good, even where it forms part of another movable or immovable good or has become immovable by destination.
Article 6.43 counts as a producer the manufacturer of a finished product, the manufacturer of a component part and the manufacturer or producer of a raw material, and anyone who presents itself as a manufacturer or producer by putting its name, trade mark or another distinguishing sign on the product. Article 6.44 treats as a producer anyone who, in the course of its economic activities, imports a product into the European Union to sell it or transfer its use to a third party.
Article 6.44 treats the supplier as the producer where a product made in a Member State has no identifiable producer, unless the supplier tells the injured person within a reasonable time who the producer is or who supplied the product to it. Article 6.44 treats the supplier of an imported product as the producer where the importer cannot be identified, unless the supplier tells the injured person within a reasonable time who the importer is or who supplied the product to it.
Article 6.45 makes a product defective where it does not offer the safety that one is entitled to expect in all the circumstances, among them its presentation, its normal or reasonably foreseeable use and the time it was put into circulation. Article 6.45 provides that a product may not be regarded as defective only because a better product was put into circulation later. Article 6.47 places on the injured person the burden of proving the damage, the defect and the causal link between them.
Article 6.48 excuses the producer who proves that it did not put the product into circulation. Article 6.48 excuses the producer who proves that the defect probably did not exist when it put the product into circulation or arose later. Article 6.48 excuses the producer who proves that the product was not made for sale or distribution with an economic purpose, nor made or distributed in the course of its profession.
Article 6.48 excuses the producer who proves that the defect results from the product complying with mandatory rules of the public authorities. Article 6.48 excuses the producer who proves that the state of scientific and technical knowledge when it put the product into circulation made it impossible to discover the defect.
Article 6.48 excuses the producer of a component or raw material who proves that the defect is due to the design of the product it went into or to the instructions of that product's producer. Article 6.49 makes each of several persons liable for the same damage jointly liable, without prejudice to rights of recourse. Article 6.50 bars limiting or excluding the producer's liability towards the injured person by contract.
Article 6.50 allows the liability to be limited or excluded where the damage is caused both by a defect and by the fault of the injured person or of a person for whom the injured person is responsible. Article 6.50 does not allow the liability to be limited or excluded where the damage is caused both by a defect and by the act of a third party. Article 6.51 covers damage to persons, moral damage included, and, subject to the following provisions, damage to goods.
Article 6.51 compensates damage to goods only if they are of a type normally intended for private use or consumption and the injured person mainly used them that way. Article 6.51 gives no compensation for damage to the defective product itself. Article 6.51 makes compensation for damage to goods due only after a deductible of five hundred euros.
Article 6.52 extinguishes the injured person's right to compensation ten years after the producer put the product into circulation, unless the injured person began judicial proceedings within that period. Article 6.52 provides that the action prescribes three years after the injured person reasonably should have known the damage, the defect and the identity of the producer. Article 6.53 leaves untouched the injured person's rights under the law of contractual or extra-contractual liability.
Article 6.51 refers to Directive 85/374/EEC of on liability for defective products. The Law of that enacted Book 6 was published in the Belgisch Staatsblad on . Article 45 of that Law brings it into force on the first day of the sixth month after the month of its publication. Article 44 of that Law applies Book 6 to facts that can give rise to liability and occurred after its entry into force, and not to the future consequences of earlier facts.
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.