French Civil Liability in Comparative Perspective

Jean-Sébastien Borghetti, Simon Whittaker, Jean-Sébastien Borghetti, Simon Whittaker

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509927289
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

The French law of torts or of extra-contractual liability is widely seen as exceptional. For long it was based on a mere five articles of the Civil Code of 1804, but on this foundation the courts and legal scholars have constructed liabilities for fault and strict liability of an extraordinary breadth and significance. While the rest of the general law of obligations (including contract) in the Civil Code was reformed in 2016 by executive ordonnance, this area was left aside, being the subject in 2017 of a proposal by the French Government for the legislative reform of the law of civil liability, a new legislative category to include both contractual and extra-contractual liability. This work considers important aspects of this developing area of French law in a series of essays by French lawyers and comparative lawyers working in French law and other civil law systems. In doing so, it provides insight into the doctrinal thinking and judgments of French lawyers as well as the possible directions in which this area of the law may be developed in the future.

1

Introduction

JEAN-SÉBASTIEN BORGHETTI AND SIMON WHITTAKER

This book considers important aspects of the French law of civil liability in the light of the recent Projet de réforme de la responsabilité civile, or Reform Bill on Civil Liability. It does so in a series of essays by French lawyers and comparative lawyers working in French law and in other civil law systems.

Writing in English about a legal system which is itself expressed in a language other than English raises terminological issues, and we should address these at the outset. In this book, ‘civil liability’ translates the French responsabilité civile, which describes both contractual and extra-contractual liability. In the French context, responsabilité civile is distinguished both from responsabilité pénale, ie criminal liability, and responsabilité administrative, ie the liability of the State and public bodies (which French law calls ‘public persons’) for the harm that they may cause. The latter distinction means that civil liability, in the French sense of the term, only covers the liability of private persons.¹ The reason why this is so is that civil liability is based on provisions of the Code civil, and that the Conseil d’État, which had (and still has) jurisdiction over claims for liability in the administration, deemed the law contained in these provisions inappropriate to govern the liability of public persons, given in particular that they act in the public interest.²

As is well known, the Code civil was adopted in 1804 under the authority of Napoleon as part of a broader codification movement. To this day, the Code’s provisions dealing with civil liability have remained almost unaltered. In this respect, ‘civil liability’ as a category is not as such identified in the Code. Instead, as promulgated, the Code civil dealt with damages arising out of non-performance of an obligation (‘des dommages et intérêts résultant de l’inexécution de l’obligation’, Section 4 of Chapter III of Title III of Book 3 as originally enacted) in a context which is wholly contractual, on the one hand, and with delicts and quasi-delicts (‘des délits et quasi-délits’, Chapter II of Title IV of Book 3 as originally enacted), on the other. The first category of damages progressively came to be known as responsabilité contractuelle, ie contractual liability; the second category was soon called responsabilité délictuelle (delictual liability) and has also been known for a few decades as responsabilité extracontractuelle (extra-contractual liability).³ In common law terms, this could be called tortious liability or liability in tort.

The Projet de réforme, which is the main focus of this book, follows the modern terminology, referring to responsabilité civile in a general way to describe both responsabilité contractuelle and responsabilité extracontractuelle. In the various chapters in this book, some contributors use ‘tort’ or ‘tortious’ to refer to French extra-contractual liability; others stay more closely to the French terminology, preferring ‘contractual liability’, ‘extra-contractual liability’, and ‘civil liability’ to describe both.

Later chapters will consider particular substantive provisions of the Projet de réforme, but this instrument can be understood only against the background of the existing pattern of French civil liability law and in the wider context of civil law reform in France. Having considered these in turn, we will outline its principal features.

I.The Existing Pattern of French Civil Liability Law

From a comparative perspective, the French law of extra-contractual liability is widely seen as exceptional and it deserves to be considered first.

Of the original 2,281 articles of the Code civil, only five, articles 1382 to 1386, were devoted to this branch of the law. These articles were drafted in very broad terms, according to the typical, perhaps one could even say, the best style of the Code civil. They read as follows:

Article 1382: Any human action whatsoever which causes harm to another creates an obligation in the person by whose fault it occurred to make reparation for it.

Article 1383: 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.

Article 1384:^[4] One is liable not only for the harm which one causes by one’s own action, but also for that which is caused by the action of persons for whom one is responsible, or of things which one has in one’s keeping.

However, a person who holds on whatever legal basis all or part of immovable or movable property in which a fire has arisen shall not be liable as regards third parties for harm caused by that fire unless it is established that it must be attributed to his fault or the fault of persons for whom he is responsible.

This provision does not apply to the relations between owners and tenants, which remain governed by articles 1733 and 1734 of the Civil Code.

To the extent to which they exercise parental authority, a father and mother are jointly and severally liable for harm caused by their minor children who live with them.

Masters and employers, for harm caused by their servants and employees within the functions for which they employed them.

Teachers and artisans, for harm caused by their pupils and apprentices during the time which they are under their supervision.

The above liability arises unless the father and mother and the artisans cannot prove that they could not have prevented the action which gave rise to this liability.

As regards teachers, fault, lack of care or a 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.

Article 1385: The owner of an animal, or a person who uses an animal while he uses it, is liable for the harm which the animal has caused, whether the animal was in his keeping or whether it had gone astray or escaped.

Article 1386: The owner of a building is liable for the harm caused by its ruin, where the latter occurred as a result of a lack of maintenance or defect in construction.

The small number of provisions on extra-contractual liability reflects the relative lack of importance of the subject for the drafters of the Code civil, and the decades immediately following the adoption of the Code confirmed the limited relevance of extra-contractual liability, with comparatively few published cases applying these provisions. However, as France changed over the course of the nineteenth century from a rural and agricultural society to a more urban and industrialised one, the number of tort claims brought before the courts started to increase. For this purpose, the open-ended character of articles 1382 to 1386 allowed the courts to extend considerably the range of extra-contractual liability. In this, articles 1382 and 1384 played a very prominent role.

While article 1382 was initially intended to cover liability for intentional faults, and article 1383 liability for negligence, the former was progressively regarded as formulating a general rule of liability for fault, encompassing both liability for negligence and liability for intentional faults. Accordingly, article 1383 slowly faded away and was hardly ever cited in discussions or relied on by litigants. The general rule to be drawn from article 1382 can be restated as follows: a person who commits a fault must make reparation for the harm caused by that fault. This rule is as broad as it looks. Not only does it cover any type of fault, whether intentional or non-intentional, it also encompasses any type of harm, be it bodily injury, damage to physical property, the violation of a right or even pure emotional harm or pure economic loss. While in many legal systems judges and lawyers have often been concerned with keeping the ‘floodgates of liability’ closed, since the end of the nineteenth century French legal thinking on liability has been dominated by the idea that the main purpose of the law of extra-contractual liability is to grant compensation to the victims of harm. Political arguments regarding the limits which liability law imposes on the freedom of citizens, as well as economic arguments pointing to the cost of liability for society, have never received a warm reception in France, and have even tended to be frowned upon as showing disregard for the plight of those who have suffered harm.

This concern for the compensation of ‘victims’, as claimants are significantly called by French lawyers⁵ (and, indeed, by the Projet de réforme itself), is perhaps best illustrated by the way in which courts have created new instances of liability of their own initiative – which is itself remarkable in a system where normally the law is created by the legislator, and not by judges. Of these instances, the most significant is strict liability for the ‘action of things’. The late nineteenth century in France witnessed many workplace accidents that could not be attributed to anyone’s fault, nor was there at the time a legislative scheme of workers’ compensation. Against this background, the Cour de cassation, France’s highest court in civil matters, relied on the first paragraph of article 1384 of the Code civil to create a new strict liability regime. This provision had not been intended to have any normative value, and instead served only as a transition between the two provisions on liability for fault (articles 1382 and 1383) and the provisions on liability for others (paragraphs 2 to 4 of article 1384 as enacted), and liability for harm caused by animals (article 1385) or ruinous buildings (article 1386). However, the courts relied on the very broad statement that ‘one is liable … for the harm … which is caused by the action … of things which one has in one’s keeping’ as allowing them to hold the ‘keepers’ (gardiens) of things strictly liable for any harm caused by things they have under their custody. While legislation on workers’ compensation soon deprived this new liability of its utility in the case of workplace accidents, article 1384(1) flourished in the context of road accidents, where in effect it made drivers strictly liable for harm caused by their vehicle. Even though in 1985 special legislation was passed on the compensation of victims of traffic accidents which has deprived the general liability for the action of things of most its practical significance, this ground of liability remains an important symbol both of the concern of French liability law for victims and of the major role of the courts in developing it. This is not the only example of a judge-mad...