JAPAN Law and Practice Contributed by: Shingo Yamada, Yugo Komori, Yasuhiro Akita and Takuma Inoue, Oh-Ebashi LPC & Partners
following factors to determine whether the product is defective: • the characteristics of the product; • the normally foreseeable use of the product; • the timing of delivery of the product; and • other circumstances relating to the product. In academic discussion, defects are generally classi -
avoid responsibility; in other words, absence of attrib - utable fault operates as a defence. 2.2 Standing to Bring Product Liability Claims The following persons may bring product liability claims. For standing in collective redress, see 2.16 Existence of Class Actions, Representative Pro- ceedings or Co-Ordinated Proceedings in Product Liability Claims . Tort Both consumers and business operators may bring claims. No contractual relationship is required. Product Liability Act Both consumers and business operators may bring claims. No contractual relationship is required. Contract Both consumers and business operators may bring claims. A contractual relationship is required. 2.3 Time Limits for Product Liability Claims Tort A claim for damages in tort is extinguished by prescrip - tion if it is not exercised within three years from the time when the victim or the victim’s legal representa - tive became aware of the damage and the identity of the tortfeasor. Where harm to life or body is involved, the limitation period is extended to five years. In all cases, the claim is also extinguished when 20 years have elapsed from the date of the tort. Product Liability A claim for damages under the Product Liability Act is extinguished by prescription if it is not exercised within three years from the time when the victim or their legal representative became aware of the dam - age and the identity of the entity liable therefor. Where harm to life or body is involved, the limitation period is extended to five years. The claim is also extinguished when ten years have elapsed from the date on which the manufacturer, etc, delivered the product. Contract In order to bring a claim based on contractual liabil - ity, the buyer must notify the seller of the non-con - formity within one year from the time when the buyer
fied into three categories: • manufacturing defect; • design defect; and • warning defect.
These categories are not expressly listed in the Prod - uct Liability Act; in practice, however, the court often determines the existence of defects by reference to these categories. Damage Recoverable damage includes harm to life, body and property. Non-pecuniary loss, including solatium, is also recoverable. However, the Product Liability Act does not apply to cases where damage is limited solely to the defective product. Causal relationship It must be established that the damage was caused by the defect in the product. Contract Where a purchased product is non-conforming (ie, defective), the buyer may claim damages against the seller. The elements necessary to establish a claim for damages are as follows: • the existence of a contract; • a non-conformity (ie, defect) in the product; • the occurrence of damage; • a causal relationship between the non-conformity and the damage; and • fault attributable to the seller. Of the above elements, the buyer is not required to prove fault attributable to the seller. The seller must establish that no fault is attributable to it in order to
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