For almost twenty years, the general delictual claim as found in par. 823 (!) BGB formed the basis for product liability claims against producers in Germany. In 1985, however, a European Directive on Product Liability was issued and in 1990 Germany enacted the Product Liability Act. Setting a strict liability standard, the Act was to operate in tandem with the existing general delictual claim. Since producers in any event find it very difficult to successfully defeat product liability claims based on par. 823 BGB, the Act should not drastically change the landscape of German product liability jurisprudence. In South African product liability claims fall under the Lex Aquiliae which has fault as its cornerstone. Although our Courts are willing to assist a plaintiff by applying the doctrine of res ipsa loq11it11r, the German experience has shown that procedural devices do not provide a permanent solution to the problem of product liability. In the long run legislation is the best way to bring about a rational and equitable system of strict liability. / Mercantile law / LL.M.

For almost twenty years, the general delictual claim as found in par. 823 (!) BGB formed the basis for product liability claims against producers in Germany. In 1985, however, a European Directive on Product Liability was issued and in 1990 Germany enacted the Product Liability Act. Setting a strict liability standard, the Act was to operate in tandem with the existing general delictual claim. Since producers in any event find it very difficult to successfully defeat product liability claims based on par. 823 BGB, the Act should not drastically change the landscape of German product liability jurisprudence. In South African product liability claims fall under the Lex Aquiliae which has fault as its cornerstone. Although our Courts are willing to assist a plaintiff by applying the doctrine of res ipsa loq11it11r, the German experience has shown that procedural devices do not provide a permanent solution to the problem of product liability. In the long run legislation is the best way to bring about a rational and equitable system of strict liability. / Mercantile law / LL.M.

The article will outline the provisions of the German ProdHaftG con-cerning OSH. It will shortly explain the key points of liability under the German Product Liability Act. Special focus will be given to the EU Product Liability Directive adopted in 2024 which will replace the Product Liability Directive from 1985. The new directive, that the German legislator must implement in national law, brings a few changes, and aims at adapting the directive to the digital age. Of significant interest is recital 14 of the directive, which states that the new directive should not apply to “[…] free and open-source software developed or supplied outside the course of a commercial activity.” OSH, however, is not explicitly excluded from the scope of the new product liability directive. Therefore, the question arises as to whether this statutory privilege clause for Open-Source Software should also apply to OSH since both are developed or supplied for non-commercial purposes.