On behavioural asymmetry in product liability law : how privatising nudging will get European product liability theory back on track
- Author
- Thomas Verheyen (UGent)
- Organization
- Abstract
- This theoretical article identifies the asymmetry between the producer and the consumer as the key to understanding product liability law. In an attempt to resolve the endless scholarly and jurisprudential debates on the proper criterion for defectiveness in European law, it first tracks the ways in which the commonly opposed consumer expectations and risk-utility test each fail to address the typical asymmetries between producers and consumers in a satisfying manner. Building upon the concept of ‘behavioural asymmetry’, it then develops a new criterion for defectiveness under European law: the behavioural risk-utility test. Under a behavioural risk-utility test, the producer is liable if the product is not reasonably safe for average users suffering from cognitive biases and other behavioural shortcomings. This test aptly combines the systemic point of view of risk-utility balancing with an evidence-based conception of asymmetry, and therefore provides a meaningful criterion for adjudicating product liability disputes.
- Keywords
- Product Liability, Behavioral Economics, Asymmetry, Risk-Utility, Behavioral Risk-Utility, Consumer Law, Consumer Expectations
Downloads
-
(...).pdf
- full text (Published version)
- |
- UGent only
- |
- |
- 1.93 MB
Citation
Please use this url to cite or link to this publication: http://hdl.handle.net/1854/LU-8725545
- MLA
- Verheyen, Thomas. “On Behavioural Asymmetry in Product Liability Law : How Privatising Nudging Will Get European Product Liability Theory Back on Track.” JOURNAL OF EUROPEAN TORT LAW, vol. 12, no. 1, 2021, pp. 40–64, doi:10.1515/jetl-2021-0002.
- APA
- Verheyen, T. (2021). On behavioural asymmetry in product liability law : how privatising nudging will get European product liability theory back on track. JOURNAL OF EUROPEAN TORT LAW, 12(1), 40–64. https://doi.org/10.1515/jetl-2021-0002
- Chicago author-date
- Verheyen, Thomas. 2021. “On Behavioural Asymmetry in Product Liability Law : How Privatising Nudging Will Get European Product Liability Theory Back on Track.” JOURNAL OF EUROPEAN TORT LAW 12 (1): 40–64. https://doi.org/10.1515/jetl-2021-0002.
- Chicago author-date (all authors)
- Verheyen, Thomas. 2021. “On Behavioural Asymmetry in Product Liability Law : How Privatising Nudging Will Get European Product Liability Theory Back on Track.” JOURNAL OF EUROPEAN TORT LAW 12 (1): 40–64. doi:10.1515/jetl-2021-0002.
- Vancouver
- 1.Verheyen T. On behavioural asymmetry in product liability law : how privatising nudging will get European product liability theory back on track. JOURNAL OF EUROPEAN TORT LAW. 2021;12(1):40–64.
- IEEE
- [1]T. Verheyen, “On behavioural asymmetry in product liability law : how privatising nudging will get European product liability theory back on track,” JOURNAL OF EUROPEAN TORT LAW, vol. 12, no. 1, pp. 40–64, 2021.
@article{8725545,
abstract = {{This theoretical article identifies the asymmetry between the producer and the consumer as the key to understanding product liability law. In an attempt to resolve the endless scholarly and jurisprudential debates on the proper criterion for defectiveness in European law, it first tracks the ways in which the commonly opposed consumer expectations and risk-utility test each fail to address the typical asymmetries between producers and consumers in a satisfying manner. Building upon the concept of ‘behavioural asymmetry’, it then develops a new criterion for defectiveness under European law: the behavioural risk-utility test. Under a behavioural risk-utility test, the producer is liable if the product is not reasonably safe for average users suffering from cognitive biases and other behavioural shortcomings. This test aptly combines the systemic point of view of risk-utility balancing with an evidence-based conception of asymmetry, and therefore provides a meaningful criterion for adjudicating product liability disputes.}},
author = {{Verheyen, Thomas}},
issn = {{1868-9612}},
journal = {{JOURNAL OF EUROPEAN TORT LAW}},
keywords = {{Product Liability,Behavioral Economics,Asymmetry,Risk-Utility,Behavioral Risk-Utility,Consumer Law,Consumer Expectations}},
language = {{eng}},
number = {{1}},
pages = {{40--64}},
title = {{On behavioural asymmetry in product liability law : how privatising nudging will get European product liability theory back on track}},
url = {{http://doi.org/10.1515/jetl-2021-0002}},
volume = {{12}},
year = {{2021}},
}
- Altmetric
- View in Altmetric