The principle of liability originates in the French 1789 Declaration of the Rights of Man and of the Citizen, Article 4 of which states: “Liberty consists in being able to do anything that does not harm others.” Consequently, someone is liable to his or her victim if he or she causes such harm. French law makes a clear distinction between liability in case of a breach of a contractual obligation, and tort liability in other cases.1 A breach of a contractual obligation will generally lead to contractual liability. It should be mentioned that special liability schemes also exist, such as liability for motor vehicle accidents2and liability for defective products.3The distinction between the two types of liability also exists in other continental systems, though it is generally possible for the same factual situation to result in liability under both tort and contract law.
Regarding contractual liability, Article 1147 of the French civil code provides for liability in case of no, or inadequate, performance. The courts first determine the exact content of the obligation, ie, what has been promised. For that purpose, the courts make a distinction between the contractual duty of care (obligation de moyens) and the contractual obligation (obligation de résultat). Establishing that a party has failed to perform a contractual duty of care requires proving negligence. Establishing that a party has failed to perform contractual obligations, in contrast, merely requires proving that the result foreseen in the contract was not reached. In addition, courts recognise an implied duty of security in many types of contracts, such as within the duty of care or a contractual obligation, leading to the right to compensate in the event of harm within the scope of duty.4
Articles 1382 to 1386 of the French civil code govern tort liability, and state in a general provision: “Anyone who, through his fault, commits an act which causes harm to another is responsible to compensate that other person for the harm that occurred.”5In other words, tort liability demands a causal link
he or she would have been in, had the harm not occurred. These provisions on the law of tort are general and vague, so the role played by case law of the “Cour de Cassation” (final Court of Appeal) and of other civil courts is essential.
The courts generously interpret the notion of faute as including both the failure to comply with a written statutory duty and negligence of the wrongdoer who did not behave as a reasonable person would have in the same circums- tances. Nevertheless, all categories of liability require proving harm caused by an act or omission. The burden of the proof rests on the victim, who has to show that harm to a legitimate interest has occurred. French law provides for a system of full compensation (réparation intégrale), which means that all kinds of harm are compensable, eg, harm to property or a person (physical or moral harm), as well as loss of profit, opportunity, or chance.6
For instance, a person who has been injured can request compensation for pain, medical costs, loss of income, aesthetic loss, or even loss of the normal joys of life. If goods have been damaged or destroyed, the victim can ask for compensation to repair or to replace them, or for the loss of enjoyment of his or her goods. Even third parties (persons close to the victim) can be considered as harmed, on the basis of “préjudice par ricochet”, ie, a moral or economic damage suffered by a third party who was dependant on the victim. French law is more open to compensation regarding the loss of opportunity than other continental legal systems.
In order to demonstrate the causal link between the act and the harm suffered by the victim, courts may be satisfied with the presumption that if it were not for the act, the harm would not have occurred.7Courts may also hold that a causal link exists in a case in which the injury was a normally foreseeable consequence of the act or omission. In other words, the question for the judge is that of whether the damage suffered was a reasonably foreseeable consequence of the defendant’s act or omission. This approach confers a wide margin of appreciation upon the judge to determine the existence or not of a causal link.
In German law, tort liability requires an additional condition apart from intention or negligence, causation, and harm (§823, Bürgerliches Gesetzbuch). This is “unlawfulness”, which, in German law, requires either the violation of a specific human right (life, physical integrity, property, or another recognised right) or the violation of a norm aimed at protecting the interests of the victim.
Exoneration and limitation of civil liability
French law allows three exceptions to the rule of liability each in case of force majeure: namely, where there is an irresistible cause (one that cannot be avoided), where the cause is external (the person has no control over it), or where the cause is unforeseeable (one that made the harm unavoidable).8 Force majeure totally exonerates the person from liability, while contribu- tory negligence or breach of contract by the victim (exception d’inexécution) might be a full or partial defence.9Other continental legal systems reason according to similar concepts.
Courts normally acknowledge the validity of penalty clauses limiting or even excluding liability or compensation, as long as they apply to liability in contracts,10and the non-performance is not wilful. A penalty clause can fix the precise amount of damages to be awarded.11In contrast, clauses limiting tort liability are invalid,12 because the principle of full compensation has the character of public policy (ordre public).
The consequences of civil liability
The sanction for contractual liability is usually the enforcement of the contractual obligations. Courts interpret Articles 1143 and 1144 of the Civil Code as setting down a general rule of performance, and damages are only allocated if performance is impossible.13Two kinds of damages exist: damages for delay, and compensatory damages14(in case of non-performance). In tort cases, the judge usually orders payment of damages to compensate the harm done, though he or she can also opt for compensation in kind, for example, repairing or replacing the goods when appropriate. Compensation can take the form of either a fixed sum of money or periodical payments. In assessing that amount, courts do not take into account whether liability is based on intention or negligence, as French law rejects the idea of punitive damages. In fact, the concept of punitive damages is generally not admitted in continental legal systems.