DEVELOPMENT RISKS
DEVELOPMENT RISKS

Summary/Abstract: Our Code of Obligations was the first regulation in Europe to name and establish producers’ strict liability for defective products as a separate institution. The solution endorsed in this Code consistently implements the theoretical concept of strict liability – a producer cannot be privileged from liability for damage caused by defective product by proving that the defect was undiscoverable while under producer’s control. On the other hand, the Directive on liability for defective products recommends to the EU member states to discharge from liability producers who prove that the defect was impossible to discover at the time when a product was placed into circulation, even with the implementation of the highest levels of scientific and technical knowledge. Does the nature of a producer’s liability change by assuming the question about what the producer could have known as legally relevant? What is the rationale of the rule suggested by the European legislator, which transfers the unforeseeable risk of damage from the producer to the damaged party? Are there convincing reasons for incorporating this rule in our law? Finally, which are the possible consequences of our adherence to the solution that differs from the one endorsed by the majority of European countries, in regard to liability for damage from undiscoverable defects?

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