Legal Starting Points
The law has long had two ways of dealing with defective products.
The first is contract – the seller is taken to promise the buyer that it has no hidden defects and that it is fit for its usual purpose. This idea goes back to Roman law. This guarantee was extended to later purchasers of the same product in the 1920s.
The second is delict (in English called ‘tort’) – the producer is liable if he is at fault and harms the user of the product.
The problems for the modern law were three:
- How far was the manufacturer directly liable to the consumer, in a way that reflected the manufacturer’s increasingly important role in the chain of distribution?
- What standard of fault would be required to establish the liability of the manufacturer and who had the burden of proof?
- How far were special rules needed, especially regulating the safety of products?