GermanyProdukthaftungsgesetz (ProdHaftG), strict liability for defective products under Directive 85/374/EEC
Produkthaftungsgesetz (ProdHaftG)
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 2 lists movable things and electricity and does not name software (§ 2).
- If you make a product or a component or basic material of one, or put your name or trademark on a product as if you made it, you answer as its manufacturer; so does a person who imports a product into the European Economic Area in the course of business (§§ 1(1) and 4(1) and (2)).
- If the manufacturer cannot be identified, name the manufacturer or the person who supplied you within one month of the injured person's request, or you are treated as the manufacturer (§ 4(3)).
- A product is defective if it does not offer the safety that may legitimately be expected, judged on its presentation, the use that can reasonably be expected and the time it was put into circulation (§ 3(1)).
- You carry the burden of proving an exclusion if it is disputed: that you did not put the product into circulation, that the defect probably did not exist then, that the defect results from compliance with mandatory legal rules, or that it could not be recognized according to the state of science and technology (§ 1(2) and (4)).
- Do not rely on a contract term to limit or exclude your liability in advance; such agreements are void (§ 14).
- Liability covers death, injury to body or health and damage to a thing other than the defective product that is ordinarily intended for private use; personal injury caused by identical defective products is capped at EUR 85 million, and the injured person bears the first EUR 500 of damage to a thing (§§ 1(1), 10(1) and 11).
- A claim is time-barred three years after the injured person learned, or should have learned, of the damage, the defect and the person liable, and expires ten years after you put the product into circulation (§§ 12(1) and 13(1)).
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 Sache' and so a 'Produkt' within section 2 of the Produkthaftungsgesetz?
What this law does
Section 1(1) makes the manufacturer of a product liable to compensate the person who is killed, injured in body or health, or whose thing is damaged by a defect in the product. For damage to a thing, liability applies only where a thing other than the defective product is damaged and that thing is of a kind ordinarily intended for private use or consumption and was mainly so used by the injured person.
Section 2 defines a product as any movable thing, including a part of another movable thing or of an immovable thing, and electricity. The Bundestag's report on the 2026 government bill states that software will in future be treated as a product regardless of how it is supplied. Section 4(1) treats as manufacturer whoever made the end product, a basic material or a component, and whoever presents themselves as manufacturer by affixing a name, trademark or other distinctive mark.
Section 4(2) treats as manufacturer a person who imports a product into the European Economic Area for sale, rental or another form of distribution with an economic purpose in the course of business. Under section 4(3), where the manufacturer cannot be identified, each supplier counts as the manufacturer unless it names the manufacturer or its own supplier within one month of the injured person's request.
A product is defective if it does not offer the safety that may legitimately be expected in all the circumstances, in particular its presentation, the use that can reasonably be expected and the time it was put into circulation.
Section 1(2) excludes the manufacturer's liability where it did not put the product into circulation, where the circumstances indicate the defect did not yet exist then, where it made the product neither for sale or other distribution with an economic purpose nor in the course of its profession, where the defect results from compliance with mandatory legal rules, or where the defect could not be recognized according to the state of science and technology when the product was put into circulation.
The injured person bears the burden of proof for the defect, the damage and the causal link, and the manufacturer bears it where it is disputed whether an exclusion applies. Section 10(1) caps liability for personal injury caused by a product or identical products with the same defect at EUR 85 million. Section 11 makes the injured person bear the first EUR 500 of damage to a thing.
A claim under the Act is time-barred three years after the person entitled to compensation learned, or should have learned, of the damage, the defect and the person liable. A claim expires ten years after the manufacturer put the product that caused the damage into circulation, unless a lawsuit or a payment-order procedure on the claim is pending. Section 14 bars excluding or limiting the manufacturer's liability in advance and makes contrary agreements void.
Section 15(2) leaves liability under other provisions untouched. The Act has been in force since . Article 2 of the 2026 government bill would replace section 19 of the Act so that it ceases to have effect on . Section 23 of the bill's new Act keeps the 1989 Act in application for products put into circulation or into operation up to and including .
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.