Theories of liability

In the United States, the claims most commonly associated with product liability are
negligence, strict liability, breach of warranty, and various consumer protection
claims. The majority of product liability laws are determined at the state level and
vary widely from state to state. Each type of product liability claim requires different
elements to be proven to present a successful claim.

1) Negligence

Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up

something") is a legal concept in the common law legal systems mostly applied in tort
cases to achieve monetary compensation (damages) for physical and mental injuries
(not accidents).

Negligence is a type of tort or delict (also known as a civil wrong). "Negligence" is

not the same as "carelessness", because someone might be exercising as much care as
they are capable of, yet still fall below the level of competence expected of them.
They could also be aware of the issues, yet choose to put the issue aside because they
underestimated the importance. It is the opposite of "diligence". It can be generally
defined as conduct that is culpable because it falls short of what a reasonable person
would do to protect another individual from foreseeable risks of harm.

Through civil litigation, if an injured person proves that another person acted
negligently to cause his injury, he can recover damages to compensate for his harm.
Proving a case for negligence can potentially entitle the injured plaintiff to
compensation for harm to their body, property, mental well-being, financial status, or
intimate relationships. However, because negligence cases are very fact-specific, this
general definition does not fully explain the concept of when the law will require one
person to compensate another for losses caused by accidental injury. Further, the law
of negligence at common law is only one aspect of the law of liability. Although
resulting damages must be proven in order to recover compensation in a negligence
action, the nature and extent of those damages are not the primary focus of negligence
cases.

Elements of negligence claims

Negligence suits have historically been analyzed in stages, called elements, similar to
the analysis of crimes. An important concept related to elements is that if a plaintiff
fails to prove any one element of his claim, he loses on the entire tort claim. For
example, let's assume that a particular tort has five elements. Each element must be
proven. If the plaintiff proves only four of the five elements, the plaintiff has not
succeeded in making out his claim.

Duty of care
Breach of duty
Factual causation (Direct Cause)
Legal causation or remoteness
Harm

2) Strict liability
In law, strict liability is a standard for liability which may exist in either a
criminal or civil context. A rule specifying strict liability makes a
person legally responsible for the damage and loss caused by his or
her acts and omissions regardless of culpability (including fault in
criminal law terms, typically the presence of mens rea). Strict
liability is prominent in tort law (especially product liability),
corporations law, and criminal law. For analysis of the pros and
cons of strict liability as applied to product liability, the most
important strict liability regime.

Tort law

In tort law, strict liability is the imposition of liability on a party without a

finding of fault (such as negligence or tortious intent). The plaintiff
need only prove that the tort occurred and that the defendant was
responsible. The law imputes strict liability to situations it considers
to be inherently dangerous. It discourages reckless behavior and
needless loss by forcing potential defendants to take every possible
precaution. It also has the effect of simplifying and thereby
expediting court decisions in these cases.

Criminal law

The concept of strict liability is also found in criminal law, though the same
or similar concept may appear in contexts where the term itself is not
used. Strict liability often applies to vehicular traffic offenses. In a
speeding case, for example, whether the defendant knew that the
posted speed limit was being exceeded is irrelevant. The prosecutor
would need to prove only that the defendant was operating the vehicle
in excess of the speed limit.

3) Breach of warranty

A warranty is violated when the promise is broken; when goods are not as should be
expected, at the time the sale occurs, whether or not the defect is apparent. The seller
should honor the warranty by making a timely refund or a replacement. The date of
delivery starts the time under the statute of limitations for starting a court complaint
for breach of warranty if the seller refuses to honor the warranty. This period is often
overlooked where there is an "extended warranty" in which a seller or manufacturer
contracts to provide the additional service of replacing or repairing goods that fail
within the extended period. However, if the goods were defective at the time of sale,
and the relevant statute of limitations has not expired, then existence or duration of
any "extended warranty" is secondary: there was a breach of a primary warranty for
which the seller may be liable.

It could be an unfair and deceptive business practice (a statutory type of fraud) to

attempt to avoid liability for breach of a primary warranty by claiming expiration of
the irrelevant extended warranty. A statute of limitations on a contract claim may be
shorter (or longer) than that of a tort claim, and some breach of warranty cases are
filed late and are characterized as a fraud or other related tort.

3) Consumer protection
Consumer protection laws designed to ensure fair trade competition and the free
flow of truthful information in the marketplace. The laws are designed to prevent
businesses that engage in fraud or specified unfair practices from gaining an
advantage over competitors and may provide additional protection for the weak and
those unable to take care of themselves. Consumer Protection laws are a form of
government regulation which aim to protect the rights of consumers. For example, a
government may require businesses to disclose detailed information about products—
particularly in areas where safety or public health is an issue, such as food. Consumer
protection is linked to the idea of "consumer rights" (that consumers have various
rights as consumers), and to the formation of consumer organizations which help
consumers make better choices in the marketplace.

Consumer is defined as someone who acquires goods or services for direct use or
ownership rather than for resale or use in production and manufacturing.[1]

Consumer interests can also be protected by promoting competition in the markets

which directly and indirectly serve consumers, consistent with economic efficiency,
but this topic is treated in Competition law.

Consumer protection can also be asserted via non-government organizations and

individuals as consumer activism.

Consumer law

MODU" or "consumer law" is considered an area of law that regulates private law
relationships between individual consumers and the businesses that sell those goods
and services. Consumer protection covers a wide range of topics, including but not
necessarily limited to product liability, privacy rights, unfair business practices, fraud,
misrepresentation, and other consumer/business interactions.
Such laws deal with credit repair, debt repair, product safety, service and sales
contracts, bill collector regulation, pricing, utility turnoffs, consolidation, personal
loans that may lead to bankruptcy and much more.

Types of liability
Section 2 of the Restatement (Third) of Torts: Products Liability distinguishes
between three major types of product liability claims:

• manufacturing defect,
• design defect,
• a failure to warn (also known as marketing defects).

However, in most states, these are not legal claims in and of themselves, but are
pleaded in terms of the theories mentioned above. For example, a plaintiff might
plead negligent failure to warn or strict liability for defective design.[1]

Manufacturing defects are those that occur in the manufacturing process and usually
involve poor-quality materials or shoddy workmanship. Design defects occur where
the product design is inherently dangerous or useless (and hence defective) no matter
how carefully manufactured; this may be demonstrated either by showing that the
product fails to satisfy ordinary consumer expectations as to what constitutes a safe
product, or that the risks of the product outweigh its benefits.[2] Failure-to-warn
defects arise in products that carry inherent nonobvious dangers which could be
mitigated through adequate warnings to the user, and these dangers are present
regardless of how well the product is manufactured and designed for its intended
purpose.

Contract
A contract is a legally enforceable agreement between two or more parties with
mutual obligations. The remedy at law for breach of contract is "damages" or
monetary compensation. In equity, the remedy can be specific performance of the
contract or an injunction. Both remedies award the damaged party the "benefit of the
bargain" or expectation damages, which are greater than mere reliance damages, as in
promissory estoppel.

Elements

At common law, the elements of a contract are mutual assent and consideration.

[edit] Mutual assent

At common law, mutual assent is typically reached through offer and acceptance, that
is, when an offer is met with an acceptance that is unqualified and that does not vary
the offer's terms. The latter requirement is known as the "mirror image" rule. If a
purported acceptance does vary the terms of an offer, it is not an acceptance but a
counteroffer and, therefore, simultaneously a rejection of the original offer. The
Uniform Commercial Code notably disposes of the mirror image rule in § 2-207,
although the UCC only governs transactions in goods.

[edit] Offer and acceptance

Main article: Offer and acceptance

The most important feature of a contract is that one party makes an offer for an
arrangement that another accepts. This can be called a concurrence of wills or
consensus ad idem (meeting of the minds) of two or more parties. The concept is
somewhat contested. The obvious objection is that a court cannot read minds and the
existence or otherwise of agreement is judged objectively, with only limited room for
questioning subjective intention: see Smith v. Hughes.[3] Richard Austen-Baker has
suggested that the perpetuation of the idea of 'meeting of minds' may come from a
misunderstanding of the Latin term 'consensus ad idem', which actually means
'agreement to the [same] thing'.[4] There must be evidence that the parties had each
from an objective perspective engaged in conduct manifesting their assent, and a
contract will be formed when the parties have met such a requirement.[5] An objective
perspective means that it is only necessary that somebody gives the impression of
offering or accepting contractual terms in the eyes of a reasonable person, not that
they actually did want to form a contract.

[edit] Consideration

Main article: Consideration

Consideration is something of value given by a promissor to a promisee in exchange

for something of value given by a promisee to a promissor. Typically, the thing of
value is an act, such as making a payment, or a forbearance to act when one is
privileged to do so, such as an adult refraining from smoking.

Consideration consists of a legal detriment and a bargain. A legal detriment is a

promise to do something or refrain from doing something that you have the legal right
to do, or actually doing or refraining from doing something that you don't have to do.
A bargain is something the promisor (the party making promise or offer) wants,
usually being one of the legal detriments. The legal detriment and bargain principles
come together in consideration and create an exchange relationship, where both
parties agree to exchange something that the other wishes to have.

The purpose of consideration is to ensure that there is a present bargain, that the
promises of the parties are reciprocally induced. The classic theory of consideration
required that a promise be of detriment to the promissor or benefit to the promisee.
This is no longer the case.
[edit] Sufficiency

Consideration must be sufficient, but courts will not weight the adequacy of
consideration. For instance, agreeing to sell a car for a penny may constitute a binding
contract.[8] All that must be shown is that the seller actually wanted the penny. This is
known as the peppercorn rule. Otherwise, the penny would constitute nominal
consideration, which is insufficient. Parties may do this for tax purposes, attempting
to disguise gift transactions as contracts.

Transfer of money is typically recognized as an example of sufficient consideration,

but in some cases it will not suffice, for example, when one party agrees to make
partial payment of a debt in exchange for being released from the full amount.[9]

Consideration must move from the promisee. For instance, it is good consideration for
person A to pay person C in return for services rendered by person B. If there are joint
promisees, then consideration need only to move from one of the promisees.

[edit] Other jurisdictions

Some common-law and civil-law systems[14] do not require consideration, and some
commentators consider it unnecessary—the requirement of intent by both parties to
create legal relations by both parties performs the same function under contract. The
reason that both exist in common law jurisdictions is thought by leading scholars to be
the result of the combining by 19th century judges of two distinct threads: first the
consideration requirement was at the heart of the action of assumpsit, which had
grown up in the Middle Ages and remained the normal action for breach of a simple
contract in England & Wales until 1884, when the old forms of action were abolished;
secondly, the notion of agreement between two or more parties as being the essential
legal and moral foundation of contract in all legal systems, promoted by the 18th
century French writer Pothier in his Traite des Obligations, much read (especially
after translation into English in 1805) by English judges and jurists. The latter chimed
well with the fashionable will theories of the time, especially John Stuart Mill's
influential ideas on free will, and got grafted on to the traditional common law
requirement for consideration to ground an action in assumpsit.[15]

Law of obligations
The law of obligations is one of the component private law elements of the civil
system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict
law. The law of obligations seeks to organize and regulate the voluntary and semi-
voluntary legal relations available between moral and natural persons with respect to

1. obligations under contracts, both innominate and nominate (for example:

sales, gift, lease, carriage, mandate, association, deposit, loan, employment,
insurance, gambling and arbitration)
2. in unjust enrichment
 3. management of the property of another (or "negotiorum gestio", the name
taken from Roman Law)
4. the reception of the thing not due
5. the various forms of extra-contractual responsibility between persons known
as delicts and quasi-delicts, which are similar to tort and negligence,
respectively, at common law.

Definition of an obligation

Justinian first defines an Obligation[6] in his Institutiones, Book 3, section 13 as "a

legal bond, with which we are bound by necessity of performing some act according
to the laws of our state."[7] He further separates the law of obligations into contracts,
delicts, semi-contracts, and semi-delicts.

Today the term Obligation, as it applies within civilian legal systems, means more
specifically a legal bond between two or more persons, by which one person, the
debtor, is held liable to another, the creditor, to perform a "prestation" consisting of
"doing" or "not doing" something at the risk of legal sanction.[8] Thus the term
encompasses both sides of the equation, both the duty of the debtor and the right of
the creditor. In this way it differs from the common English language conception of
Obligation which denotes only the duty aspect.

Every obligation has four essential requisites otherwise known as the elements of
obligation. They are:

1. A passive subject (called debtor or obligor): the person who is bound to the
fulfillment of the obligation.
2. An active subject (called creditor or obligee): the person who is entitled to
demand the fulfillment of the obligation.
3. Object or prestation: subject matter of the obligation
4. A juridical or legal tie: the vinculum; the efficient cause that binds or connect
the parties.

[edit] Contracts

A contract can be broadly defined as an agreement that is enforceable at law. Gaius

classified contracts into four categories which are: consensual contracts, verbal
contracts, contracts re, contracts litteris. But this classification cannot cover all the
contracts, such as pacts and innominate contracts.

[edit] Quasi-contracts

Quasi-contract is one of the four categories of obligation in Justinian's classification.

The main cases are negotiorum gestio (conducting of another person's affairs without
their authorisation), condictio indebiti (unjust enrichment) and common ownership.,

[edit] Quasi-delict
The designation comprised a group of actions of no obvious similarity, classified by
Justinian as analogous to delictual obligations. It includes Res suspensae, things
poured or thrown, shippers/innkeepers/stablekeepers, and erring judges.