Product liability under the CISG and Concurring tort law claims ...

Allowing concurring claims will have a detrimental effect on the Convention. Dismissing concurring claims
on the other hand, will only have a minimum effect on product liability laws and only in situations where a
company suffers damage to property, where the notice requirements in art 39 CISG have not been fulfilled
and where the seller has not acted gross negligently. Thus, the sacrifices which the contracting states have
to make in tort law, in order to obtain a successful international contract law, are limited in this author´s
opinion.
4.6. The effect of negligence
One of the greatest differences between the Convention and domestic tort law is the effect that negligence
is given. While negligence does not influence liability according to the Convention it is often the triggering
effect in domestic law which gives rise to a tort claim. Whether the very fact that a seller has acted negligently
should automatically make it possible to file a domestic tort claim or not, and which effect negligence
should be given in Convention regime, will be the focus of this section.
Key issues regarding negligence and product liability were identified by the Superior Court of Justice in Ontorio,
Canada in a case from 2003. 140 In this case the family Shane, who owned a farm in Ottowa, Canada,
bought a tractor directly from JCB Belgium N.V located in Belgium. The tractor was manufactured in England,
where the owners of the company also resided. After the contract had been entered into, the Shanes
made agreement to transport the tractor to Canada. While being used, the tractor caught fire and burned
down. The Shanes claimed damages for negligent manufacture and design of the tractor and made their
claim in Ontario, where the damage was suffered. JCB Belgium N.V. disputed jurisdiction.
The parties’ contract was deemed to have been entered into in Belgium, and it was not disputed that the
CISG was the applicable contract law. The essence of the claim was, according to the Court, determining
what caused the tractor to catch fire. However, it was not clear whether the tractor was negligently manufactured
or suffered a defect. Nevertheless, the court considered two possibilities as to where the tort occurred;
in England, where the tractor was manufactured and designed, or in Ontario, where the damage
occurred when the tractor caught fire and burned down.
The court found that “in this case the consequences, namely the fire destroying the tractor occurred in Ontario
and the law of Ontario may well apply to the issue of negligent design and manufacture of the tractor”.
141 Since the claim from the Shanes was based on negligence and not non-conformity the claim had the
closest relation to tort law, according to the court, and the law of the place, where the damages had occurred
(Ontario law), had to be applied. Thus the court seized jurisdiction.
The court treated this issue as a breach of a standard safety expectation rather than a breach of contract
and found the interest of the injured party more worthy of protection than the commercial interests underlying
the contract. This choice was not based on the specific defect the tractor suffered or whether or not it
was manufactured negligently, since such information did not exist, but in stead the court viewed it as part
of its discretion to make the decision on whether this was a tort claim or a contract claim.
The extent to which the CISG applies according to art 4 and 5, to the substantive and procedural aspects of
this case, was not discussed by the court. The fact that liability for damage caused to property is not excluded
by art 5 CISG may not have occurred to the court, which is an unfortunate omission, since it could
have provided guidance regarding the puzzle of concurring claims.
140 Shane v. JCB Belgium N.V.
141 Shane v. JCB Belgium N.V. para 42.
RETTID 2012/Specialeafhandling 26 36