French Civil Liability Flashcards
What are the types of French Civil Liability?
- Contractual liability
- Extra-contractual liability
- Legal responsibility (ruled by a special law)
- Quasi-contractual liability
What is the purpose of Civil Liability?
To compensate a harm.
In contrast to criminal liability where it is to punish. Same as administrative law.
Which are the adversaries/parties at the trial in Civil Liability?
Victim and offender (tortfeasor in English law)
In contrast to criminal law where they have a public procecutor (ministre public), and administrative law where it is state and victim.
What are the harms and penalties in Civil Liability?
The harm is done to the victim personally. The most common penalty for Civil Liability is money.
In contrast to criminal law where it is also done to the whole society. Therefore the punishment can be such as imprisonment. In administrative law the harm is the same and penalty is the same as Civil Liability.
What are the sources of Extra-contractual liability law?
There are a few provisions of statutory law, but the Extra-contractual liability is mainly dominated by case law.
Is case law a real source? Yes according to Human Court of Strasbourg. According to French law it is stands for interpreting statutory law and does not have the same strength. It can always change.
There has been a draft from July 2020 to change the current case law dominated position with more provisions.
What are the conditions of Extra-contractual Liability? (And contractual)
- Harm
- Action giving rise på liability
- A cause of connecting between harm and event. Causation/cause of connection
What is the harm?
The harm must be:
Lawful
The harm must be lawful to be recovered. For instance is it not possible to get damage from for stolen bank notes if you have stolen them yourself.
Certain
The harm must be certain, and the plaintiff must prove this.
Future harm can be compensated if it is certain and normally foreseeable. According to Cour de Cassation the future harm is only recoverable when it compensates it direct
Individuality
The harm must be individual, personal. Interet à agir
Secondary victims are allowed to complain for his individual loss
Class action is quite new in french law
Any type of harm can be recoverable in French law, we are very generous with victims, why?
Main provision 1240 is very broad. And ideological reasons.
What is an action giving rise to liability?
1804 provided for 3 actions:
- The fault: indentional or negligence. The person who commits a fault must compensate for the harm he causes
- Liability for others. Parents for their child
- Liability of things. The keeper of the bicycle
What is a cause of connecting between harm and event?
The harm must be directly caused by the action giving rise to liability
The harm direct cause of the harm
Chain of causality
What is the Effect of Extra-contractual liability? (not the same in contractual)
- Full reparation
You have to fully compensate - No calculation of damages in the Civil COde
Generousity that every harm an be compensated
Moral, physical, economic, psycological, sexual
No directive to the judge, it should be based on circumstances in each case.
What is the definition of fault?
Art 1240 CC - Intentional fault: Any human action which causes harm to another, creates an obligation in the person by who it occured, to make compensation for it
Art 1241 CC: Fault of negligence: Everyone is liable for harm which he has caused not only by his action, but also by his failure to act or his lack of care
Case law has confused both articles, they do not distinguish. Very vague definition
The reasonable man will give the standard of assessment of normal behavior
Fault has an objective/material element. Hitting someone is a fact, neglecting your duty is a fact.
Fault also has a psycological/subjective element. You must have been aware that you whold not have behawed like that.
What is the problem of Imputability? (How to attribute the fault)
Problem when it comes to mental patients and infants causing harm. They are not contieuse and/or cannot control themselves.
Mental patients: Art 414-3 No less obliged to make a compensation
Infants/Young children
CASE DERGINI 1984 About a child at fault but also a victim. The removed the subjective element of fault. Application of standard of reasonable man
No compensation if victim is at fault
Reform bill 1255 reformed this case law. Fault is an objective matter and should also apply to mental persons and infants, but not if the victim is at fault and deprived of conciousness.
TITTA PÅ DETTA. fattar inte?
What is included in the Liability for others?
Also called vicharious.
Art 1241 § “One is liable not only for the harm which is caused by one’s action, but also for that is cost by the action of persons for whom one is responsible of things or one has in one’s keeping”
Art 1242 4-8 § List of persons responsible for others
4 § To the extent to which they exercise parental authority a father and mother are jointly and severally liable for harm caused by the minor children who live with them
5 § Masters and employers, for harm caused by their servants and employees within the function for which they employ them
6 § Teachers and artisatnts for harm caused by their pupils and appretnises during the dime which they are under supervision
Burdens of proof:
7 § The above arises unless the father, mother, artisans cannot prove they cannot prove that they could have prevented the action (burden of proof)
8 § Teachers, fault lack of fare, or failure to act invoked, must be proved by the claimant
What is the 1804 philosophy behind Art 1242?
Civil liability is for compensation not punishment
Put the liability on who was able to avoid the harm
When is the mother/father liable concerning the child’s behavior?
Does the child have to be at fault for the father or mother to be liable?
Evolution of case law: From requirement of wrongful behavior (a fault) to a nearly harmful behavior
If child at fault (no fault)
Case 9th may 1984: The fault did not need to be inputable to the one who provokes the harm
Change with Case Fullenwarth 1894 is the turning point of liability of others regarding the child. No need of a wrongful behavior, fault of a child to engage the liability of children,
Case was confirmed in Case le Veart.
Critique: It would dissuade parents from having children
When is the employer liable concerning the behavior of the employee?
Two conditions are required:
- The employe has to be at fault in the performance of his duty
- His behavior must not be a criminal offence
Why different to parents? Role of parent not the same as employer. And employee has own resources
What are the grounds for Exemption concerning the behavior of the Parents?
Art 1242 CC 7 § The above liability arises unless the father and mother and artisants cannot prove that they could have prevented the action which gave rise to this liability”
CAEE BARTHRAM: Even if the parents prove that they have done nothing wrong, they will have to compensate that. No importance they way the parents behave to their children
What are the grounds for Exemption concerning the behavior of the Teacher?
Art 1242 8 § As regards teacher, fault, lack of care, or failure to act invoked against those as having caused the harmful action, must be proved by the claimant at first instance following the general rule”
- Claimant will have to prove not only fault but also lack of care
Art 1353 CC General law of evidence
Up to creditor to prove existence of the obligations
What are the grounds for Exemption concerning the behavior of the Employer?
Case law has said nothing about behavior of employer
Up to claimant to prove the employer was at fault
Is Art 1242 exhaustive?
Can the judge add any more than parents, etc?
Not really allowed by the law. But the judge has done it anyway
Interpretation of the introductory provision
CASE BLIECK Supervising association liable for a mental patient that put a fire in a forest (before this was a legal gap)
CASE Extention to Sport associations for amateur sportsmen (professionals are employed)
No further than Associations
What is the difference of liability for others in french law and vicharious liabilitites in common lwa?
Vacharious - representative of surrogate does not have to invoke his liability. Only one, employer for harm caused by employee
What is the reform bill about liability of others about?
French law is more generous with victims than common law, and this motivated a Reform bill
Proposes 5 articles 1242-1248
Requires that the person who caused the harm is at fault
What is the issue of Liability for actions of things
There is a legal vaccum. Case law has an important role in filling this gap
Two provisions from 1804
Art 1243: Animal: The owner of an animal or a person who sues an animal while he uses it, is liable for the harm which the animal has caused, weather the animal was in his keeping or weather it has gone astray or escaped
Art 1244: Building: The owner of a building is liable for the harm caused by its ruin weather the latter occured as a result of lack of maintenence or a defect in construction
Art 1242 para 1 The general principle for action of things: One is not liable only for the harm caused by ones action, but also that is caused by the action of persons for whom one is responsible or things one has in one’s keeping
How has case law tried to fix the legal gap with liability for things?
The two main cases which created a general principle for liability of action of things
Case 1896 TEFFARAINE
Exploition of a steaming mine
Before contractual duty of safety for the employer
Used 1241 as general principle for liability for things
Case 1930 JAUD’HEURE
Car accident. Employer drove car and hit a young girl. Made a new reasoning Art 1242
- Anyone who has something in his keeping must repair the harm it has haused
- Only ground for excemption is force majeur
Who is liable for the action of things?
The keeper.
Def according to case FRANK:
- Keeper must have the use of the thing
- The thing must be guided by the keeper
- The keeper must contol the thing
In Art 1243-44 the owner of animal and building was liable.
Three problems with deciding the liable person :
- The theft of the thing
In Case 1941 FRANK a car was stolen. In jaud’heure the owner would be liable. But here Cour de Cassation changed their mind: It is the keeper
- Collective keeping
If a group of persons has guidance and control and not possible to extract one single person
Cases of rugby games –> Jointly and severally liable
- Manufacturing defect in the thing
Like a washing machine hurting a relative in your home.
