Country:

Belgium

Court:

Commercial Court of Hasselt, 3rd division / Rechtbank van Koophandel te Hassel, 3de Kamer

Parties: L.M. N.V. and AXA Belgium vs B.V.B.A. and N.V.S.

Date: 8 November 1999

Topics

Supplementary character of the law. A supplier of a product can only be held liable when the identity of the importer cannot be found.

Articles:

Article 4 § 2 of the act of 25 February 1991 (Product Liability Act)

Facts:

The claimant has bought an electrical water boiler from a supplier who himself bought it from an importer. On the 20th November 1997 the boiler breaks down, the water spread on the floor and damaged the ceiling, the bathroom and the wallpaper. The insurer of the claimant has brought his action against the supplier.

Legal questions:

1) Can be both the supplier and the importer be held liable for a defective product?

Decision:

Article 4 § 2 of the Product Liability Act which provides that the supplier of the defective product can be held liable where the importer cannot be identified, unless the supplier informs the injured person of its identity within a reasonable time. As in this case the name of the importer was known by the claimant insurer, the Court rejected the action against the supplier

Comments:

The Court first examined the arguments based on tort (article 1382 & 1384 §1 of the Civil Code), on latent defect legal guarantee (article 1641of the Civil Code) and on the contractual guarantee but rejected them as the enforcement conditions of these regimes of liability were not fulfilled.

The court then considered the claim based on the Product Liability Act to determine the responsible person.

Article 9 of the Product Liability Act states that "Where, as a result of the provisions of this act, two or more persons are liable for the same damage, they shall be liable jointly and severally". In this case, the liable persons could have been the supplier and the importer. But in fact the combination of this article and article 4 § 2 lead to the conclusion that only the importer is responsible for the damage. This decision limits the number of persons that an aggrieved person can sues.

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