SWITZERLAND Law and Practice Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
2.2 Standing to Bring Product Liability Claims In Switzerland, the standing to bring claims for product liability is – such as with any other claim – a matter of substantive law, ie, it depends on the legal basis of a claim. A party has standing to sue if it (at least allegedly) has a substantive claim under a certain law or legal relationship. In the context of product liability, claims are usu - ally based on either the Federal Product Liability Act, a contract or tort law (as discussed in 2.1 Product Liability Causes of Action and Sources of Law ). Under the Federal Product Liability Act, any per - son injured by a defective product or any person suffering property damage due to a defective product may bring a claim against the respon - sible producer. For contractual claims, a party to a contract usu - ally has standing to sue if it suffers damage fol - lowing a violation of the contract by the other party (in the context of product liability, eg, in case of the delivery of a defective product). Under general tort law, any person who has suf - fered damage following a civil wrong committed by another person – whether or not the injured party is linked to that person by a legal relation - ship, such as a contract (eg, as is often the case in product liability matters between a consumer and a producer) – has standing to sue. Which of these legal bases is the most favour - able for an injured party to bring claims related to a product depends largely on the underlying facts of the case. Whenever there is a contrac - tual relationship, an injured party will most prob - ably bring claims under that contract given that, under Swiss law, there is a presumption of fault,
product leads to the death or injury of a person or the damaging or destruction of property. “Pro- ducer” means the person who has manufactured the end product, a basic material or a partial product; any person who claims to be the pro - ducer by affixing its name, trade mark or other distinctive sign to the product ( “quasi-producer” ) as well as any person importing the product for distribution purposes to Switzerland. The liabil - ity is only triggered if the product is deemed defective – ie, if it does not offer the safety that one may expect considering all circumstances (such as the get-up or overall appearance of the product, the expected use or the time of market placement). The Federal Product Liability Act, however, provides for several defences (please refer to 2.12 Defences to Product Liability Claims for further details). In addition, the injured party could base a dam - ages claim on contract (if the producer is the seller and the injured party is the buyer) or gen - eral tort law. The latter, however, would require proof of fault. Given this obstacle, a claimant would generally invoke the respective tort claim only on a subsidiary basis. Against the Seller The Swiss Code of Obligations provides for the strict contractual liability of a seller for the direct damage suffered by a buyer due to a defective object purchased from that seller. “Direct dam- age” would also include any personal damage or damage to property which was directly caused (ie, without any additional causal link) by the product’s defect. If the seller were also the pro - ducer of the defective product, the injured buyer could alternatively base its claim for damages on the Federal Product Liability Act as discussed above.
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