Search

According to the facts proven, the claimant was in the supermarket ?Torre Lucas? in the city of Murcia on 28 August 1994. There he took a glass bottle containing white lemonade from one of the shelves in order to buy it, which exploded just as he was placing it in a shopping bag. The shards reached his face and caused, among others, injuries to the iris and cornea of the right eye as a result of which his eyesight was reduced. The bottle has been identified as belonging to the commercial brand ?La Casera?. It is a product which is produced by the defendant, while a different firm, ?Carbónica Murciana S.L.?, is in charge of bottling and commercial distribution. It has also been proven that the only cause of the injuries was the low quality of the product destined to be sold, since the bottle exploded because it was defective. The claimant claimed the amount of 36.520.000 pesetas from the three companies mentioned above. The Court of First Instance partially admitted this claim in a decision on 18 April 1996; the commercial firm ?La Casera S.A.? appealed against the aforementioned decision before the Appellate Court of Murcia. On 21 March 1997 this Court rejected the appeal. The defendant brought an appeal before the High Court, which was denied. In its ruling, the Court rejected the arguments brought by the defendant, amongst them the following assertion. The defendant alleged that the claimant had not proven that the product was defective, according to Article 5 of the Products Liability Act. The point is that the explosion took place without the product having being manipulated by the consumer in any way; this means that the explosion was caused by the product itself. According to Article 3 of the Act referred above, a product is defective when it does not meet the safety that a person could lawfully expect from it, taking all circumstances into account and, in particular, the presentation of the product, the reasonably foreseeable use and the time when it was put into circulation. At any rate, a product is defective when it does not meet the safety normally offered by all the other items of the same series. In the case at stake it has been sufficiently proven that the bottle which caused the injuries to the claimant markedly lacked the safety required. Therefore, since it is an unsafe product, it was obviously defective in itself as from the time when it was put into circulation. The concept of defect laid down by the Act, which follows the EU Directive 85/374 EEC, is a flexible and broad one. In addition, since there is no place for subjective elements, the safety has to be seen as a requirement of the product, because every consumer is entitled to be able to use the product without any risk for his or her physical or patrimonial integrity. The existence of the defect results from the concept established by the Act 22/1994 and has to be connected to safety that the product must offer. If this requirement is not met, the product has to be deemed defective, thereby reversing the burden of proof, since it is the manufacturer who has to bring evidence that the product is suitable or that there are other causes that could exonerate him or her from liability.

The ruling of the BGH was based on the following facts. In 1986 the claimant received several securities from the father of both litigating parties. Their father had a power of disposal over the claimant's bank account and the securities deposit, respectively. In 1994 the father — in agreement with Defendant, being the claimant's sister — arranged for a transfer of the securities to Defendant's deposit. The claimant argued that his father has thus abused the power of authority conferred upon him. Defendant allegedly knew of the ultra vires nature of this action. In addition, the transfer of the securities had fiduciary effect only. Defendant disputed that the securities were part of the claimant's property. Also, she argued that she was not aware that they were transferred from the claimant's deposit. From her point of view, the transaction was a gratuitous grant originating from her father's property. The District Court ruled in favour of the claimant; whereas the Court of Appeals dismissed the action. The ensuing appeal to the BGH brought by the claimant resulted in a reversal of the latter ruling and the case was subsequently referred back to the Court of Appeals. In this case, the BGH discussed the relevant provisions contained in the law of unjust enrichment. Art 816 para. 1 2nd sentence BGB was held not to be applicable since the element of disposal by an unauthorized person was missing. Then, the BGH considered Art 812 para. 1 1st sentence ('on account of the claimant') as a basis for holding the claimant accountable, the requirements of which are prima facie complied with: The securities were part of the claimant's property; the excess of authority was met by the gratuitous disposal effected by the authorized person, i.e. the father. Both elements do not amount to a justification for keeping the securities in question in the meaning of Art 812 para. 1 1st sentence. It is, however, of the essence how the transfer of securities to Defendant is to be qualified (for instance, as a benefit/performance by the father to Defendant; cf. principle of priority of the Leistungskondiktion). This assessment, in turn, depends on various other circumstances (such as the expectations of the parties involved; the viewpoint of the beneficiary, etc.) in respect of which the Court of Appeals has not yet asserted the necessary facts. The following case note discusses the decision by the BGH in the light of Belgian, Dutch, Italian, and Greek Law.