Safety-relevant product defects may result – under certain circumstances – in serious personal injury and/or property damage. If so, typically the (quasi-) manufacturer or importer is exposed to real legal risks of compensation and damages claims of the damaged party. Our legal advice in this Worst- Case scenario aims at the most effective possible defence of such claims whether out of court or in court proceedings. We are in a position to marshal all product safety facts relevant for the defence by investigating the details with our client. We also have many years‘ experience in procedural law as litigation and industry lawyers enabling, firstly, early recognition of any pitfalls inherent in the case and secondly, fruitful exploitation of all admissible procedural remedies for the benefit of our client.
Every market actor has to consider duties of care to the public derived from § 823 (1) German Civil Code. The content and extent of such duties vary depending on whether a manufacturer, importer or (sales) distributor is concerned. The manufacturer is subject to design and instruction obligations while the dealer can be exposed to warehousing and advisory obligations. The importer’s duties lie somewhere between those of the manufacturer and the distributor. Our advice precisely identifies the manufacturer’s duties of care to the public, in particular design, fabrication, instruction and product monitoring obligations. As trade experts, we are also clear as to the duties of care which must be satisfied by (wholesale, middleman and retail) traders for example additional product testing (also by external conformity assessment bodies). For the importer, the extent of its basic random sampling duty, even including safety-relevant testing of materials, must be determined so that any product liability law risks are effectively averted.
If and to the extent that products with safety-relevant defects reach the market, various regress issues may arise from the necessary reaction (typically as a risk aversion measure) of the affected enterprise. We advise comprehensively in that situation on all practically relevant issues i.e. firstly, in the constellation of supplier regress by which the product defect which emerges later is caused (factually or allegedly) by a defective part supplied. Here, our advice aims at clearly distinguishing the legal responsibilities of the final manufacturer and the supplier. In such disputes, the horizontal and vertical distribution of work on the one hand and any quality assurance agreements on the other hand are of the utmost importance. Secondly, recovery of costs, which can of course overlap with supplier regress claims, is of practical importance. Recovery of costs concerns the appropriate apportionment of the costs burden of a recall e.g. throughout the supply chain. We not only enforce such claims for our clients but also, of course, defend our clients against unjustified claims.
We advise and represent our clients comprehensively on national sales law (including the related work supply agreements) and UN sales law (CISG). In practice, that often involves the enforcement of or defence against warranty claims but also whether applicable complaint obligations were satisfied in time and whether any claims are statute-barred. We advise our clients in advance of a dispute and clearly indicate the chances and risks of the case. We are equally prepared to negotiate an out-of-court settlement. If litigation cannot be avoided, we effectively vindicate our client’s rights or defend them against unjustified claims.