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from Part II
Published online by Cambridge University Press: 15 December 2017
SOURCES OF LAW AND THEIR EVOLUTION
THE SCOPE OF THE LAW IMPLEMENTING THE PRODUCT LIABILITY DIRECTIVE
Polish product liability law is based on Directive 374/85/EEC. The Directive was implemented by the Act of 2 March 2000 on the protection of certain consumer rights, on product liability and the amendment of the Civil Code, which entered into force on 1 July 2000. The Act revised the Civil Code in respect of unfair contract terms and product liability.
No other system of compensation for losses caused by defective products or services is in place.
The product liability regime was introduced into the Civil Code as a new title VI prim (articles 4491–44911kodeks cywilny (Civil Code, CC)) in the Book on Obligations, which follows Title VI on Torts and precedes Title VII on Performance of obligations and effects of their non-performance. In spite of this ostensible separation from tortious liability, most of the common rules concerning civil liability (arts 361–363 CC), as well as the provisions governing torts, such as those on compensation of personal injuries, are applicable to product liability claims.
It should be stressed that distinguishing product liability claims from tort claims is fallacious. A product liability claim is definitely a tort claim under Polish law. This is the dominant position in the legal writings and the sole position to be found in case law. Title VI (prim) of the Civil Code, which implemented the Directive, was opted for due to the fact that it was technically more convenient to create an additional chapter in the Code than to insert several new provisions in the existing section (Title VI). Nevertheless, a minority view, represented by the authors of a major textbook on the law of obligations and other distinguished writers, states that product liability is a risk-based regime situated in between contractual and delictual liability, and should be distinguished from the ‘regular’ tort liability by the following features:
– separate rules on prescription of claims;
– different regulation of joint and several liability;
– special prohibition of exclusions or limitations to the liability (art 4499 CC); and
– a separate rule on the concurrence of liabilities.
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