On Behavioural Asymmetry in Product Liability Law: How Privatising Nudging Will Get European Product Liability Theory Back on Track

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.