Product Liability 2009 - Arnold & Porter LLP

Hungary
174
Oppenheim Hungary
1.5 Do criminal sanctions apply to the supply of defective
products?
Act IV of 1978 on the Criminal Code (Hungarian Criminal Code)
contains a provision entitled “Placement into circulation of bad
quality products” which prohibits the marketing, placement into
circulation and transmission of products for use as “good quality
products” where such products do not possess the mandatory
attributes specified by national standards or products that cannot be
used for their intended purpose. If wilfully committed, the above
criminal act is punishable with up to three years of imprisonment;
if committed negligently with up to one year of imprisonment.
(Section 292 of the Hungarian Criminal Code.)
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
Under Strict Liability
The burden of proof rests with the aggrieved party regarding the
damage caused, the defect and that the defect caused the damage.
The producer has to prove the exonerating factors.
Under Fault Based Liability
Similarly, in cases of fault based liability, the aggrieved party bears
the burden to prove the damage and its value, and that the unlawful
conduct of the tortfeasor caused the damage. The tortfeasor carries
the burden to prove the exonerating factors.
Under Contractual Liability
The aggrieved party has to provide proof of the breach of
contractual obligations. In the case of contracts qualifying as
consumer contracts, the consumer has to prove that the goods were
not in conformity with the contract.
2.2 What test is applied for proof of causation? Is it enough
for the claimant to show that the defendant wrongly
exposed the claimant to an increased risk of a type of
injury known to be associated with the product, even if it
cannot be proved by the claimant that the injury would
not have arisen without such exposure?
The Hungarian law on non-contractual liability is a flexible system
in which the court weighs different elements in each individual
case. Causation and fault as preconditions of liability are flexible
concepts, open for judicial interpretation. The increase of risk itself
by the defendant does not necessarily establish causation but due to
the open character of this system, in cases where the link between
the increased risk and the damage is obvious the court may establish
that the defendant caused the damage.
2.3 What is the legal position if it cannot be established which
of several possible producers manufactured the defective
product? Does any form of market-share liability apply?
The liability of producers is joint and several, meaning that the
aggrieved party can claim full compensation from any or all of
them. The liability is shared between the producers by the degree
to which each of them contributed to the damage. This is only
relevant in how they settle claims amongst themselves. Any of the
producers who are liable may be entitled to make a cross claim
against the other producers for their contribution. There is no such
institution as market share liability in Hungary.
2.4 Does a failure to warn give rise to liability and, if so, in
what circumstances? What information, advice and
warnings are taken into account: only information provided
directly to the injured party, or also information supplied to
an intermediary in the chain of supply between the
manufacturer and consumer? Does it make any difference
to the answer if the product can only be obtained through
the intermediary who owes a separate obligation to assess
the suitability of the product for the particular consumer,
e.g. a surgeon using a temporary or permanent medical
device, a doctor prescribing a medicine or a pharmacist
recommending a medicine? Is there any principle of
“learned intermediary” under your law pursuant to which
the supply of information to the learned intermediary
discharges the duty owed by the manufacturer to the
ultimate consumer to make available appropriate product
information?
If there is a statutory or implied obligation to warn others to special
attributes of the product or a specific risk that goes with the product,
the failure to warn may establish liability. In such a case, failure to
warn would establish the causational link and would also be taken
into account in considering the liability of the defendant. The
question whether only the information provided directly to the
injured party, or also information supplied to an intermediary would
be taken into account depends on the circumstances of the
individual case. If the required standard of conduct under the given
circumstances extends only to providing information to the
intermediary (e.g. because it is not possible to provide the
information directly to the consumer), informing the intermediary
may be taken into account as a factor limiting the liability of the
producer. In this sense, it may be relevant that the product can only
be obtained through the intermediary who owes a separate
obligation to assess the suitability of the product for the particular
consumer, although this would not necessarily exempt the producer
from liability. The principle of “learned intermediary” has not been
generally accepted under Hungarian law theory and practice.
3 Defences and Estoppel
3.1 What defences, if any, are available?
The producer can escape liability by providing proof that:
it did not place the product on the market;
the product was not produced for retail purposes, or was not
produced or distributed within the framework of regular
business activities;
the product was in perfect condition at the time when it was
placed on the market, and the cause of the defect developed
subsequently;
at the time the product was placed on the market the defect
could not have been discovered according to the current state
of scientific and technological achievements; or
the defect in the product was caused by the application of a
legal regulation or a regulatory provision prescribed by the
authorities.
The producer of raw materials or a component shall be exempt from
liability upon providing proof that:
the defect was caused by the structure or composition of the
final product; or
the defect was a consequence of instructions given by the
producer of the final product.
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