37. Planned Obsolescence: A Case Under Torts Law as Intentional Damage Contrary to Public Policy (Art. 826 German Civil Code)

Meadows et al. (1972) already stated in their report ‘Limits to Growth’ for the Club of Rome that the resources that are a part of the biosphere are not endless. The authors showed that mineralogical and energetic resources as well as agricultural land would be depleted within some decades if no changes in consumption patterns occur. Even though some of the assumptions of the authors have been indicated as too pessimistic, this report was a milestone in the discussion about the global distribution and use of resources. One hypothesis of the report was that more and more resources will be distributed asymmetrically, which will lead to severe geopolitical imbalances, inequity and finally to conflicts or even wars for resources. On the other hand, it has been indicated that finite resources could be used more sustainably (Sachs and Santarius 2007). The background of this idea was the assumption that there is a direct relation between the use of resources and economic growth (Sanden et al. 2012; Atkinson and Hamilton 2003). The validity of this relationship has however been subject to increasing scrutiny. A study by von Weizsäcker et al. (1998), nicknamed ‘Factor Four’, for the Club of Rome, indicated numerous possibilities to reduce the use of resources by a factor of four. A subsequent study by Schmidt-Bleek (2000) went further and called for a factor of ten for the possible decrease in the use of resources. Decoupling the use of energy and economic growth is possible; this is proven by the example of Germany, where over the last few years less energy is being used, but relevant economic growth can still be observed (BMWi/BMU 2012). One major factor of improving the ecological balance of consumer products would be the extension of the product’s life-span. But it seems that modern consumer products last just as long as there is a product guarantee. This benefits the producers, because consumers are forced to buy new products. This phenomenon is discussed under the term ‘planned obsolescence’ and is known since the ‘Phoebus Cartel’ of light bulb producers, which existed between 1925 and at least 1942. This cartel limited the life-span of light bulbs to a maximum of 1000 h to maximise profit. Planned obsolescence just for maximising profit is ethically not acceptable in times of climate crisis and resource depletion. This may be addressed by public law and even criminal law, but also by means of civil law, which is increasingly discussed in politics and the scientific community. One crucial question is if a consumer, who is damaged by having bought a product having an unnecessary short life-span, can ask for compensation under civil law. At the moment, this seems not to be the case under German civil law. But there are legal possibilities and provisions that may allow courts to decide in favour of consumers, which would at the same time address such—not acceptable in the context of transition to sustainability—business strategies.