French Civil Liability

Question 1

What are the types of French Civil Liability?

Answer 1

• Contractual liability
• Extra-contractual liability
• Legal responsibility (ruled by a special law)
• Quasi-contractual liability

Question 2

What is the purpose of Civil Liability?

Answer 2

To compensate a harm.

In contrast to criminal liability where it is to punish. Same as administrative law.

Question 3

Which are the adversaries/parties at the trial in Civil Liability?

Answer 3

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.

Question 4

What are the harms and penalties in Civil Liability?

Answer 4

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.

Question 5

What are the sources of Extra-contractual liability law?

Answer 5

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.

Question 6

What are the conditions of Extra-contractual Liability? (And contractual)

Answer 6

1. Harm
2. Action giving rise på liability
3. A cause of connecting between harm and event. Causation/cause of connection

Question 7

What is the harm?

Answer 7

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.

Question 8

What is an action giving rise to liability?

Answer 8

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

Question 9

What is a cause of connecting between harm and event?

Answer 9

The harm must be directly caused by the action giving rise to liability
The harm direct cause of the harm
Chain of causality

Question 10

What is the Effect of Extra-contractual liability? (not the same in contractual)

Answer 10

1. Full reparation
   You have to fully compensate
2. 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.

Question 11

What is the definition of fault?

Answer 11

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.

Question 12

What is the problem of Imputability? (How to attribute the fault)

Answer 12

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?

Question 13

What is included in the Liability for others?

Answer 13

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

Question 14

When is the mother/father liable concerning the child’s behavior?

Answer 14

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

Question 15

When is the employer liable concerning the behavior of the employee?

Answer 15

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

Question 16

What are the grounds for Exemption concerning the behavior of the Parents?

Answer 16

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

Question 17

What are the grounds for Exemption concerning the behavior of the Teacher?

Answer 17

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

Question 18

What are the grounds for Exemption concerning the behavior of the Employer?

Answer 18

Case law has said nothing about behavior of employer
Up to claimant to prove the employer was at fault

Question 19

Is Art 1242 exhaustive?

Answer 19

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

Question 20

What is the difference of liability for others in french law and vicharious liabilitites in common lwa?

Answer 20

Vacharious - representative of surrogate does not have to invoke his liability. Only one, employer for harm caused by employee

Question 21

What is the reform bill about liability of others about?

Answer 21

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

Question 22

What is the issue of Liability for actions of things

Answer 22

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

Question 23

How has case law tried to fix the legal gap with liability for things?

Answer 23

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

Question 24

Who is liable for the action of things?

Answer 24

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.

Question 25

What does the Concept of the Thing have for importance?

Answer 25

Jaud’heure did not make distinguision between things.
Case 1959: Oxygen liquid.
They decided not to distinguish between dangerous and harmless things. Instead they distinguished between keepers. A keeper of silencers and keeper of the behavior –> the keeper should be the one able to prevent the harm

Case 2005: Thing have to have an active role in provoking harm

Question 26

Why is the general regime created not working?

Answer 26

Only two exceptions: Intangible things and if the thing plays an active part in causing harm
Do not distinguish between dangerous and harmless things.

Special laws are needed

Question 27

What are the special laws inititated because of the legal vacuum?

Answer 27

• Defect in products
  To have special rules was inititated by an EU directive, currently codified in Art 1245 CC which is aimed at the producer. Vaccines are regulated by this
  Victim of long time side effect must prove: Harm, defect of the product, direct causal connection between harm and defect of product
  Defect - when it is not offered the safety that can be legitimacy be expected
  Grounds for excemption - not force majeur.
  Special Article.
• Traffic accidents
  To remove from the general regime of action of things
  90 % of harms by things are from car accidents
  Case 1983 DESMAIRS Provocation by Cour de Cassation to provoke legislator to create a new law. The fault of the victim is not a grund for excemption in general regime.
  Loi Badentaire - law on liability of Trafic accidents (1985)

Question 28

What does the Case law say on motorcycle accidents?

Answer 28

Cour de Cassation 1985: Involvement of a car accident - not causality. This means you as a car driver can be held liable even if you did not cause the harm
Involved by motion, but also parked
Also the keeper of the vehicle
Even if you just scare someone with your vehicle, you are involved

Grounds for exemption. Art 2 and 3 of Law on liability of trafic accidents
Art 2: Cannot claim force majaeur
Art 3: Victims fault is not a ground for exemption
This article distinguishes between types of victims
- The victim that has not committed fault at all - compensation is full
- The age of a faulty victim. Less than 16 and more than 70 - all harm is compensated. between only physical injury
- Suicide in traffic. - no compensation

Question 29

What is de lege lata?

Answer 29

The law as it stands at presence

There is a strict dual architecture of liability. Contractual and extra-contractual separation.
This is because contracts is good for the economy, without this people would not conclude contracts because they would want full compensation

Question 30

What is the Non-Comul rule?

Answer 30

It prohibits any person bound by a contract from seeking the liability of his co-contractor on the grounds on extra-contractual liability

For instance if you suffer damage from a lift, but you have contracted with the lift-maintenance company with a limited-liability clause. You must respect the contract

Question 31

What is the Privity of contract rule?

Answer 31

The contract is only binding to the parties to the contract
For instance pizza guy, a third party from the elevator, is not bound by contract and will have the full compensation principle

Question 32

What happens to the third party victim of a contractual non-performance?

Answer 32

Does not fit onto dual architecture of liability.

CASE BOOTSHOP. Non contractual obligations caused harm to third party. In this case Cour de Cassation mixed both set of rules and allowed third party to receive full compensation for non performing

Question 33

What is the suggested solutoion to the legal vacuum resulted from the duality of liability?

Answer 33

We have a need for special liability regime that transcend the civil liability duality, like defective products, road traffic accidents, doctors.

The solution: Quasi-contract
Art 1371 CC: A quasi contract is purely volontary act of man from which there results any kind of commitment to a third party and sometimes a reproccical commitment from both parties
- Fills the legal void

Question 34

What is the De lega ferenda?

Answer 34

The law of the future
To create a new regime –> focus on the very requirement of liability in general
- The provision of the contract should always be preserved from the full compensation principle. Because contract is basis of our economy, it must be reliable
- Physical injury should always be compensated

Reform bill. They tryed to set out some rules applicable to both contractual and extracontractual liability.
Bodily injuries: Art 1269 and 1280 for bodily injury - must always be compensated in fully