Posted on: 20-01-2020

Product Liability

Written by:

Hein Kernkamp

Product liability

Product liability is the liability of a producer for damage caused by a defect in his product.

Strict liability

on the basis of the European directive 85/374 / EEC and articles 6: 185-6: 193 DCC, the producer is liable as soon as a product put into circulation by him shows a defect and thereby causes damage, whether or not there is a fault or culpability on his side. This concerns damage caused by death or personal injury or property that is used by a consumer.


This special arrangement involving strict liability has a number of exceptions. The producer is not liable if:

  • he has not put the product on the market
  • the product was initially not defective
  • it concerns non-commercial production
  • the product complies with mandatory government regulations
  • the state of scientific and technical knowledge made it impossible to detect the existence of the defect
  • it is a non-defective component

Own fault injured

The liability of the producer can be reduced or canceled if the damage is caused by a defect in the product as well as by fault of the injured person or a person for whom the injured person is liable.

Who is liable?

The producer of a product. According to the law that is:

  • the manufacturer of a finished product
  • the producer of a raw material or the manufacturer of a part
  • and anyone who presents himself as a producer by putting his name, brand or other distinguishing mark on the product
    The importer who imports the product into the European Economic Area is also considered a producer.

Defective products

One of the requirements for the right to compensation under Section 6: 185 of the Dutch Civil Code is that the product must be defective. Article 6: 186 paragraph 1 of the Dutch Civil Code stipulates that a product is defective, if it does not offer the safety that can be expected from it, taking all circumstances into account and in particular:

  • the presentation of the product
  • the reasonably foreseeable use of the product
  • the time when the product was put into circulation

The second paragraph of Article 6: 186 of the Dutch Civil Code states that a product may not be considered as defective solely because a better product was subsequently put on the market.

If none of the exceptions occurs, liability is a fact. The purpose of the scheme is to guarantee a minimum level of protection for consumers. In addition, the consumer retains the right to assert his rights in another way, such as by addressing someone else or by invoking an unlawful act.

What is product liability?

Unlawful act

Defective products can of course also cause damage that falls outside of this legal regulation, such as company property. Liability may also be involved, but the claimant will then have to fall back on tort or unlawful act. The Supreme Court has delivered a number of standard judgments on the marketing of defective products, such as the Moffenkit (NJ 1966/279), Du Pont / Hermans (NJ 1997/219), Koolhaas / Rockwool (NJ 2000/159) and Haagman / Vaessen (NJ 2000/644).

It follows from the judgments that a producer acts unlawfully by putting a product on the market that causes damage during normal use for the purpose for which it was intended. It follows from the Du Pont / Hermans judgment that this must be in line with the criterion of defect in the legislation on product liability, that is to say that a product is defective - and the person placing it on the market - acts unlawfully - if the product does not offer the safety that one may expect from it (Article 6: 186 of the Dutch Civil Code). The issue here is whether the product has the property of causing no damage to persons or property (safety).

Business disputes about defective products can therefore also be submitted to the court and in fact are brought to the courts regularly.

Present your case to a lawyer

Our lawyers regularly advise and litigate on product liability. Submit your questions to us without obligation. Our motto is not for nothing: "Your problem, our concern."

More information?

Hein Kernkamp will gladly help you further.

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