1. General

According to the general principle of tortuous liability, a person who has "unlawfully and culpably" caused damage to another "shall be liable for compensation. The elements of tortuous liability are therefore:

(a) an unlawful act or omission,

(b) which has been negligently committed,

(c) which has caused damage to another and

(d) an adequate causal link between such act or omission and the damage caused thereby.

In general terms any act or omission is considered unlawful which is forbidden by law. Culpability is distinguished between fraud and negligence; the latter is mainly regarded objectively as the lack of diligence which a person must show in the carrying out of business. Culpability requires imputability which, however, is excluded or re­stricted in certain cases, e.g. where the person who causes the damage is a minor; in those cases the Court may award reasonable compensa­tion to the victim.

Liability for compensation of a person who caused damage to another is also established where the person acted "intentionally and in a manner contrary to good morals".

2. Product liability in tort

The prevailing view in Greek jurisprudence and among Greek scholars has been that the liability of the producer for defective products is a tortuous one. The prerequisites of this liability are there­fore the same as those mentioned above.

Specifically, the unlawfulness of the producer's act or omission is considered to be based upon the breach by him of the general obliga­tion of care and safety in the course of business, which derives from the principle of good faith, and which should prevent him from putting into circulation products which may affect the health or property of consumers or third persons. The notion of defective product as out­lined above differs from that of the "actual defects" which a product may have under the provisions of the contract of sale of goods under CC.

Since the process of production and control of the products is within the field of influence of the producer it is obvious that the consumer would face great difficulties in proving the negligence of the producer. Greek jurisprudence has therefore reversed the burden of proof against the producer applying by analogy section 925 of CC, according to which: "the owner or possessor of a building" is liable for the damage caused to a third person by reason of its collapse, "unless he proves that the collapse is not due to a defective construction or to a faulty maintenance of the building".

The consumer therefore has the burden of proving the "harmful defectiveness" of the product at the time of its use or attempted use and the causal link between the reasonable use of this product and his own damage thereby. Should the consumer comply with his onus of evidence as above, the liability of the producer may be excluded if he proves that the defect of the product is not due to a faulty production or maintenance or such a probable fault is not due to his own negligence or that of the persons for which he is himself liable.

The above time taken into account as far as existence or not of the "harmful defectiveness" of the product is concerned, i.e. the time of its use or attempted use, also facilitates the judicial position of the claimant.

Subject to the above legal framework, damages for defective pro­ducts may be claimed by the stricto sensu consumer and by any third party victim. However, Greek jurisprudence seems to refuse to those third persons the right to claim compensation.

3. Product liability in contract

According to a second view, the liability of the producer is a contrac­tual one, based upon the rule of the secondary contractual obligation for compensation of third parties which derives from the breach by him of his obligation towards protection of the consumer.

Under this view the producer has the liability of the seller for defec­tive goods and he may escape his liability by proving absence of his fault. This theory has not been followed by the jurisprudence; however, it ought to be noted that the reversal of the burden of proof in favour of the consumer which has been established by the jurispru­dence for claims against the producer and accepted by the prevailing theory of fault, adds elements of contractual liability to the liability of the producer.

4. Claimant's contributory fault

Lastly, where the claimant contributed by his own fault to his dam­age or to the extent thereof, the Court "may refrain from adjudicating compensation or reduce its amount". The same applies where the claimant failed to avoid or mitigate his damage. The contributory negligence of the plaintiff has to be invoked by the defendant who bears the onus of proving the same.