The EU has been active in attempting to harmonize the laws of product liability and sale of goods to consumers, with the aim of promoting fair competition, developing the internal market, and protecting consumers. But how do the resulting laws relate to existing national laws of liability and compensation? Is the resulting harmonization genuine or merely formal? Has implementation of the EC directives changed the law, but left claimants and defendants as
differently treated as ever in different Member States?This comparative study considers the French and English laws governing all those who may be liable for products: their producers, their suppliers, their users and their regulators. To do so, it examines in each system the
private law of tort and contract and aspects of the civil process which are important in determining liability; the administrative law concerning failures to regulate or control product safety; and the liability for products of suppliers of public services, such as water or healthcare. It considers how the substantive criminal offences affecting product safety, whether particular to products or under more general law, relate to civil liability or to compensation. The emerging picture
reveals two complex and significantly different patterns of liability for products in the English and French systems, cutting across the traditional boundaries of private law, public law and criminal law.Implementation of the Product Liability Directive and Consumer Guarantees
Directive required the insertion into these patterns of new elements, disharmonious with existing wider legal strategies and techniques. This study considers various problems of these directives' implementation in the French and English systems, the main issues of their proper interpretation, and the relationship of the new laws which they create with existing bases of liability. It explains the different significances given to 'fault,' 'negligence' and 'defect' (whether of safety or of
contractual conformity); the relationship between judicial institutions and legal procedures in the determination of substantive legal issues; and the different relationships in the two laws studied between public and private, civil and criminal law. It concludes by offering wider comments on legal
harmonisation based on the French and English experience in relation to these two directives.
`Simon Whittaker's masterly study demonstrates clearly that when Community measures arrive in a Member State they may well land in occupied, indeed in overcrowded, territory. His chosen topic is complex, but his study is wide-ranging, subtle, perceptive, and profound. The work must have taken decades of wide reading and deep thinking, and the result is now set out with great clarity, a scrupulous scholarly apparatus, and no little wit...Whittaker casts his
net widely, thereby ensuring a much richer appreciation of the diversities in presuppositions, structure, approach, and results in the two national jurisdictions...Perhaps the finest chapter in this fine work is that on 'patterns of liability' (Chapter18)'
vol 10.1 Electronic Journal of Cmaparative Law, www.ejcl.org/101/review101-1
1: General Introduction
Part I Civil Liability in Respect of the Manufacture, Supply or Use of Products Apart From Implementation of the EC Directives
2: Introduction to Private and Public Liability in French Law
3: Droit Privé: Delictual Liability for Fault and for the 'Deeds of Things'
4: Droit Privé: the Law of Sale
5: Droit Privé: Liability for the Provision of Services Involving Products
6: Droit Administratif and Liability for Products
7: Public Services, Service Public, and Liability for Products
8: Introduction to Private and Public Liability in English Law
9: The Tort of Negligence, its Adjudication, and its Satellites
10: The English Law Sale of Goods
11: The English Law Governing Public Service, Private Services, and Liability for Products
PART 2 Administrative Liability for Failure to Regulate or Control Product Safety
12: French Law: Formal Bases of Liability and Practical 'Irresponsibility'
13: English Law: Recurrent Themes and Endemic Casuistry
PART 3 Criminal Responsibility for Unsafe Products and its Relationship to Compensation
14: Fraudes, Homicides, and the Role of the Partie Civile
15: English Law: Crime, the Criminal Process, and 'Essentially Civil Claims'
PART 4 The EC Product Liability and the Consumer Guarantees Directives and their Implementation in French and English Law
16: The Creation and Maintenance of the EEC Directive on Liability for Defective Products and the Process of its Implementation in the UK and France
17: A Closer Look at the Product Liability Directive
18: The Patterns of Liability
19: The Consumer Guarantees Directive and its Implementation in French and English Law
PART 5 General Conclusion
20: General Conclusion