Notes on all the videos Flashcards
What is force majeure?
External event beyond the obligateur’s control that was unforeseeable and unavoidable makes performance impossible or nearly impossible.
What happens in case of unavoidable force majeure?
measures up to a sacrifice threshold must be taken. This must be decided on a case-by-case basis.
What is a set-off?
A creditor’s right to balance mutual debt with the debtor. This is also known as reconciliation. Smaller debt is subtracted from the larger debt. Remainder is still owned.
Founded in common law.
Name three additional characteristics of set-offs?
- Only when both parties were creditors from each other, not when claims were made
- Allows debtors to delay payment until claims are heard in court
- Can be allwed in contractual agreements
Who is liable under general tort law for damages incurred by consumer during use of the product?
- Producer
- Gig worker
- Seller
Who is liable under contract law for damages incurred by consumer during use of prduct?
- Seller
Who is considered to be a producer?
- Manufacturer of finished product
- Producer of any raw material
- Manufacturer of a component part
- Any person who, by putting a distinguishing feature on product
Who is liable when the producer cannot be identified?
If producer cannot be identified, then the seller of product on platform will be qualified as producer, unless he informs consumer within reasonable time after consumer is injured by product of the identity of actual producer of person who supplied him the product
What is the definitions of a product?
- Electricity
- All movables, even when incorporated into another movable, immovable or a human body
- Silver (movable) incorporated into jewellery (another movable)
What is an exemption for the definition of a product?
- Agricultural product and game, unless undergone initial processing
Milk (primary product) feta cheese (agricultural good undergone processing)
Name two exclusions of liability of producers under tort law?
- Producer did not put product into circulation
- Product was neither manufactured for sale nor for commercial purposes, nor produced in his business.
Producer has to prove this though
What is the definition of a defective product?
Defective product: product is defective if unsafe for its proper use
1. Presentation of the product
2. Use that can reasonably be expected
3. Moment when product was put into circulation (initially by producer)
What is objective liability:
consumer is not obliged to prove producer made a mistake. This liability occurs through manufacturing defaults. Manufacture is liable as soon as product is produced.
What is the development risk defense?
party argues that occurrence of defect was unknown or wasn’t reasonably to be known when product was manufactured.
Name four exclusions of liability for producers?
- Prove that it is probable that the defect did not exist when product was put into circulation
(defect came into being afterwards) - Default due to compliance of product with mandatory regulations from public legislators.
- State of scientific and technical knowledge at time when product was put into circulation did not enable existence of defect to be discovered.
- Product was altered by second producer
What types of damages can be claimed under product liability directive?
Under product liability directive, only material damages can be claimed.
Material damages (can be claimed)
- Physical losses
- Loss of property
These can always be claimed by consumers, however not always by gig workers as these damages might be incurred by items that are used for business/commercial purposes, not private ones
What should injured persons prove in order to claim material damages?
- Damage
- Defect
- Causal relationship between defect and damage
What is subrogation?
: is put in the same legal position
Are trademark owners considered as producers?
Trademark owners can also be considered as producers of the product based on the definition of producers under the product liability directive
What are jointly and severally liable producers?
If two or more producers are liable for the same damages, they shall be liable jointly and severally, without prejudice to the provision of national law concerning the rights of contribution or recourse. Consumer can choose one of them and claim full amount of damages from one person. This can compensate the losses.
This primary producer is responsible for claiming some/all of damages back from coproducer depending on their legal relationship and agreements.
What are entire agreement provisions?
Final written contract is the whole agreement, with all conversations, emails, phone conversations etc exchanged before contract was signed are not part of the agreement unless written in the contract.
