EU situation should be looked at by everyone
EU situation should be looked at by everyone
Posted Dec 13, 2023 12:07 UTC (Wed) by farnz (subscriber, #17727)In reply to: EU situation should be looked at by everyone by khim
Parent article: Bottomley: Solving the Looming Developer Liability Problem
In the UK, it still works like that - the manufacturer can disclaim all liability and pass it onto the dealer. The dealer is the entity that cannot disclaim liability. A US lawyer talking about liability in the US is kinda irrelevant here - we're not (yet?) a state of the USA.
We closed the loophole differently; the liability for manufacturing defects is created at the time the sale happens, and is thus part of the company that you have to handle while you close the company down; if you've not done so, then the directors of the company that was closed down have committed a criminal offence, and can both be forced to pay out the liabilities personally (possibly making them bankrupt), and banned from ever running a UK company again. This makes the trick you describe effectively impossible - you need to find genuine directors for your new company (otherwise it's just a trading name of the manufacturer), and you will not be able to do so if you're burning through them every 3 months or so, and discarding them with huge liabilities that they agreed to.
Further, to close a company down requires you to transfer all of its assets and liabilities out - if you transfer assets out without transferring out liabilities, then the company becomes insolvent, and the asset transfers can be undone to make the company solvent again (since it's illegal to engage in any transfer that makes the company insolvent). The only way to leave liabilities behind is to go bankrupt, but in UK law, that requires you to prove that the company could not continue trading - and also opens up opportunities for the bankruptcy court to "pierce the corporate veil" and say that the company is merely a front for another entity, who thus is liable for everything the company did as-if they did it themselves. In the case of the scheme you describe, the company would be deemed (in bankruptcy) to be a front for the manufacturer, and thus the manufacturer becomes liable because they created the company purely to avoid liability.
And if you remember when it worked like this in Russia, then Russia had this problem a long time after the mechanisms I loosely describe above came into being in England & Wales; these mechanisms built up in the 18th and 19th centuries, and were fully in place by the beginning of the 20th century.
