Q&As

Which parties in a supply chain are liable for defective second hand goods and can any of them limit that liability with an indemnity clause?

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Published on LexisPSL on 07/09/2016

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • Which parties in a supply chain are liable for defective second hand goods and can any of them limit that liability with an indemnity clause?
  • Defective products liability
  • Additional protections
  • Limiting liability
  • Product recall
  • International considerations

Defective products liability

Liability for defective products is dealt with under Consumer Protection Act 1987 (CPA 1987), which implements into UK law the provisions of the Product Liability Directive 85/374/EEC and imposes a strict liability on producers of defective products for the damage caused by those defects.

Pursuant to CPA 1987, s 2(3) the supplier of the product, whether it be a wholesaler, distributor or retailer, may be liable in place of the producer if it fails, within a reasonable period, to identify the producer or its supplier of the product higher up the chain following a request to do so by an injured party.

However, note that an injured person’s right of action under CPA 1987 ends ten years after the defective product was put into circulation. The ECJ, following a reference from the English court, considered the meaning of 'put into circulation'. The ECJ decided that a product was put into circulation when it left production and began to be marketed in the form in which it was to be offered for public use or consumption (O’Byrne v Sanofi Pasteur MSD).

For further information on liability for defective products generally and analysis of applicable case law, see Practice Notes: Defective products and Claims

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