Court:

OGH 30. 7. 1992 7 Ob 581/92 JBl 1993, 253 = RdW 1993, 8 = ecolex 1992, 843 = VersR 1993, 1511

Topics:

Duty to name the producer or importer or the salesperson that has supplied with the product

Articles:

§ 1 Abs 2, PHG

Facts:

The plaintiff asserted that a Coca-Cola bottle had burst in his hands when taking it out of the shelf in defendants' shop. He claimed compensation for pain and suffering resulting from injury to his left hand. Coca-Cola bottles were usually bottled and delivered to the defendant by E company. E company notified the defendant though that they had stopped bottling Coca-Cola before the damage had occurred and had instead bought the bottles form G Company and then delivered it to the defendant.

Legal Questions:

The entrepreneur's duty to name the person that supplied him with the product: how far does it go?

Decision:

If the producer or importer cannot be identified, the entrepreneur that put the product into circulation can be held liable if he does not name the producer, importer or the salesperson that has supplied him with the product. This regulation is supposed to protect the consumer from failing with his claim in cases in which he is dealing with an anonymous product - a product which the producer or importer cannot be established. The salesperson, putting the product into circulation, can be exempt from liability if he names the salesperson having sold the product to him, who is then to be held liable if he cannot clarify the situation. Still, liability can be imposed on a salesperson only if the producer cannot be identified. This requirement should not be interpreted stringently, importance lies on making compensation for damage easier for the damaged person. He shall be eligible for compensation even though he may not be able to identify the producer. Nevertheless the damaged person cannot bring a claim against the salesperson if the original producer or importer is known to him out of advertising or imprints on the product.

E company had explicitly named G company as the pre-salesperson (having bottled and sold the product to E) and therefore E was exempt from liability according to § 1 Abs 2 PHG. The salesperson's duty to name comprehends giving information several times (name and address and additional details needed for the defendants' prosecution). Nevertheless this duty to inform the damaged person does not comprise any further action supporting the plaintiff in bringing his claim. If the pre-salesman, as named by the ultimate salesman, does not properly inform the damaged person of the actual producer the ultimate salesperson has no duty to identify the actual producer and inform the damaged person about it. Furthermore liability cannot be re-shifted to the ultimate salesperson if the pre-salesperson does not inform adequately.