NetherlandsBurgerlijk Wetboek Boek 6, Articles 185 to 193, Product Liability (Directive 85/374/EEC)
Burgerlijk Wetboek Boek 6, artikelen 185 tot en met 193
In force since .
A product liability rule binding public and private bodies.
- Private right of action
- Yes
- Instrument type
- an act of a legislature
As of .
What it requires
- The Book 6 definition of a product is a movable thing, even once it forms part of another movable or immovable thing, and electricity; it is not settled whether that reaches software supplied on its own (Art. 6:187(1)).
- If you make a final product, a raw material or a component, or put your name, trade mark or another distinguishing mark on a product to present yourself as its producer, you are liable for damage a defect in it causes (Arts. 6:185(1) and 6:187(2)).
- If you import a product into the European Economic Area to sell, rent, lease or otherwise supply it in the course of your commercial activities, you answer as its producer with the same liability (Art. 6:187(3)).
- If the producer cannot be identified, you answer as producer when you supply the product, unless you tell the injured person within a reasonable time who the producer is or who supplied it to you (Art. 6:187(4)).
- Offer the safety that may be expected of the product, taking account of how you present it, its reasonably expected use and when you put it into circulation (Art. 6:186(1)).
- Be able to show that you did not put the product into circulation, that the defect probably did not exist then or arose later, that the defect results from complying with mandatory government rules, or that the state of scientific and technical knowledge when you put it into circulation made the defect impossible to discover (Art. 6:185(1)(a), (b), (d) and (e)).
- Do not rely on a contract term to limit or exclude your liability to the injured person (Art. 6:192(1)).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- Does the definition of a product in Article 6:187(1) of the Civil Code, a movable thing (roerende zaak) and electricity, reach software supplied on its own?
What this law does
The explanatory memorandum to the bill implementing Directive (EU) 2024/2853 says that Directive 85/374 was implemented in Division 3 of Title 3 of Book 6 of the Civil Code. Article 185(1) of Book 6 of the Civil Code makes the producer liable for damage caused by a defect in its product.
Article 187(2) treats as producer the manufacturer of a final product, the producer of a raw material, the manufacturer of a component and anyone who presents itself as producer by putting its name, trade mark or another distinguishing mark on the product. Article 187(3) treats a person who imports a product into the European Economic Area to sell, rent, lease or otherwise supply it in the course of its commercial activities as a producer with the same liability.
Article 187(4) treats every supplier as the producer where the producer cannot be identified, unless the supplier names the producer or its own supplier within a reasonable time. Article 187(1) defines a product as a movable thing, including one that has become part of another movable or immovable thing, and electricity. Article 3:2 of the Civil Code defines things as objects that are tangible and capable of human control.
A product is defective under Article 186(1) if it does not offer the safety that may be expected of it, taking all circumstances into account, in particular its presentation, its reasonably expected use and the time it was put into circulation. Article 188 requires the injured person to prove the damage, the defect and the causal link between the defect and the damage.
Article 185(1)(b) excludes liability where it is plausible that the defect did not exist when the producer put the product into circulation or arose later. Article 185(1)(d) excludes liability where the defect results from the product complying with mandatory government rules. Article 185(1)(e) excludes liability where, given the state of scientific and technical knowledge when the producer put the product into circulation, it was impossible to discover the defect.
Article 185(2) reduces or removes the producer's liability where the damage was caused both by a defect and by the fault of the injured person or of a person for whom the injured person is liable. Article 189 makes each of several persons liable under Article 185(1) for the same damage liable for the whole.
Article 190(1) covers death or personal injury and damage the product causes to another thing ordinarily intended for private use or consumption and used mainly in private by the injured person, with a deductible of EUR 500 for the property damage. Article 191(1) sets a limitation period of three years from the day after the injured person became aware, or should have become aware, of the damage, the defect and the identity of the producer.
Article 191(2) extinguishes the right to compensation ten years after the start of the day following the day the producer put the product that caused the damage into circulation. Article 192(1) provides that the producer's liability under the Division cannot be excluded or limited towards the injured person. Article 193 leaves the injured person's other rights and claims intact. The Act of adapted the Civil Code to the Council directive on liability for products with defects.
That Act provided that it enters into force on a date set by royal decree. The consolidated text of Article 185 records the provision as new and in force from under Staatsblad 1991, 600.
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.