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Country:

Belgium

Court :

Commercial Court of Verviers, 2th division / Tribunal de Commerce de Verviers, 2 ème chambre.

Parties: Mr Fabian A. & Mrs Vanessa T. vs BOSCH S.A. & ISTACE S.N.C.

Date: 17 June 1997

Topics:

Fault of the victim and proof of the defect.

Articles:

Art. 7 of the Act of 25th February 1991 (Product Liability Act)

Facts:

A woman bought a wallpaper stripper and was burnt by the steam while using it. This machine has been examined by an expert whose report stated that there was no defect in the product and the injury resulted from misuse of this machine.

Legal questions:

1) On which legal base can be grounded the liability of a manufacturer?

2) Who has to prove the defect?

Decision:

The judges first consider that such a claim can be brought either under the Act of 25 February 1991 on defective product or under the provisions of the Civil Code regarding the latent defects warranty (article 1641 CC). In both case, a defect must be proved.

Neither the claimant nor the expert have proved the existence of a defect (be it latent or not). The judges then conclude from it that the cause of the burns of the claimant is due to her fault, that is to say a bad handling of the wallpaper stripper by the woman. As a result, they reject the claimant action.

Comments:

This judgment is an example of the enforcement of a basic principle of product liability which is that the claimant bears the burden of the proof of a defect

It would have been interesting to know what the decision would have been if the claimant has brought his action under the Belgian Act of 14th July 1991 on commercial practices and information and protection of consumer.

Article 30 (Chapter V, section1) of this Act provides that "at the latest at the time of the conclusion of the sale, the seller must give in good faith the correct and useful information relating to the product or service characteristics and the terms of sale given the need of information expressed by the consumer and considering the use as declared by the consumer or reasonably foreseeable". The claimant could have argued for instance that he was not provided with instructions for use nor explanations and that was the resaon why she has had been burnt by the steam.

Another legal way to obtain damages on a contractual ground by claiming that the contract between the woman and the seller of the wallpaper stripper included an implied duty to inform her of the use of this machine.

Click here to download the original text of the case.

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