France: French Tort Law in the Light of European Harmonization

Journal of Civil Law Studies Journal of Civil Law Studies

Volume 6 Number 2 Article 15

12-31-2013

France: French Tort Law in the Light of European Harmonization France: French Tort Law in the Light of European Harmonization

Olivier Moréteau

olivier.moreteau@law.lsu.edu

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France: French Tort Law in the Light of European Harmonization

, 6 J. Civ. L. Stud. (2013)

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FRENCH TORT LAW IN THE LIGHT OF EUROPEAN

HARMONIZATION

Olivier Moréteau

∗

I. The Draft Reforms of French Tort Law .................................. 760

A. The Draft Revision of the French Civil Code Tort Provisions

............................................................................................ 760

B. The Rationale of the Draft Projects and their Impact on the

Civil Code .......................................................................... 762

1. The Catala Draft: A Revision Adulterating the Civil Code

........................................................................................ 764

2. The Terré Drafts: A Recodification Perfecting the Civil

Code ............................................................................... 765

C. A Quick Glance at the Drafts and their Compatibility with the

PETL .................................................................................. 766

1. Time Factors ................................................................... 766

2. Scope of Civil Liability ................................................... 767

3. Causation ......................................................................... 769

4. Liability for Others ......................................................... 770

5. Specific Regimes ............................................................ 772

6. Exclusion and Exoneration ............................................. 774

7. Contract Clauses ............................................................. 777

8. Compensation ................................................................. 777

D. Conclusion ......................................................................... 785

II. Recent Jurisprudence in French Tort Law ............................. 786

A. The Sinking of the Tanker Erika and the Advent of

Environmental Damage...................................................... 786

B. Proportional Liability: French and European Perspectives

Converge ............................................................................ 792

1. Multiple Tortfeasors, Concurrent and Alternative Causes

........................................................................................ 792

2. Uncertainty of Causation and Loss of a Chance ............. 797

∗ Professor of Law, Russell B. Long Eminent Scholars Academic Chair,

Director of the Center of Civil Law Studies, Paul M. Hébert Law Center,

Louisiana State University; formerly Professor of Law, Université Jean Moulin

Lyon 3 and Director of the Édouard Lambert Institute of Comparative Law. The

author thanks Alexandru-Daniel On for his help in editing.

760 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

This inaugural chronicle of French law will focus on tort law or

civil liability, to use civilian terminology. The first section presents

forthcoming legislative evolution, commenting on two draft

reforms that have not been debated in the National Assembly but

are receiving much doctrinal attention inside and outside the

country. The second section discusses a few recent cases. Both

sections place French recent developments in the light of European

Harmonization, particularly the Principles of European Tort Law,

published in 2005 by the European group on Tort Law,

of which

the author is a member, and the Draft Common Frame of

Reference (DCFR), compiled under the supervision of the

European Commission.

I. THE DRAFT REFORMS OF FRENCH TORT LAW

A. The Draft Revision of the French Civil Code Tort Provisions

At the Napoleonic time, French tort law was codified in five

Civil Code articles, articles 1382 to 1386 of a chapter entitled “Of

Delicts and Quasi-Delicts.” These articles contain general clauses

that have served as the basis for the development of a formidable

and abundant jurisprudence. Law teachers find in this short chapter

of Book III their best examples when they want to illustrate the

creativity of the courts and the interaction of law professors and

judges in the creation of the law. Legislative work has been very

limited in the 150 years that followed the enactment of the Code

civil des Français. Four of the five Code articles remain totally

1. EUROPEAN GROUP ON TORT LAW, PRINCIPLES OF EUROPEAN TORT LAW

(2005); P

RINCIPES DU DROIT EUROPÉEN DE LA RESPONSABILITÉ CIVILE, TEXTES

ET COMMENTAIRES

(Olivier Moréteau ed., Michel Séjean Trans., Société de

législation comparée 2011).

2. D

RAFT COMMON FRAME OF REFERENCE (DCFR). FULL EDITION.

PRINCIPLES, DEFINITIONS AND MODEL RULES OF EUROPEAN PRIVATE LAW

(Sellier 2009).

3. This section was first published in F

ESTSCHRIFT FÜR ULRICH MAGNUS

77 (Peter Mankowski & Wolfgang Wurmnest eds., Sellier 2014) under the title

The Draft Reforms of French Tort Law in the Light of European Harmonization.

2013] FRANCE 761

unchanged. Slight modifications were made to paragraphs 2 and

following of article 1384, whilst paragraph 1, still in its vintage

drafting, served as the unintended seat for the development of an

overreaching doctrine of strict liability for damage caused by the

act of a thing (fait des choses).

Few developments were made outside the Code, such as

workers’ compensation legislation.

Only in the second half of the

20th century did legislative production accelerate, yet not so much

to revise or complement the time-honored Civil Code articles,

but

to create specific regimes by special laws ancillary to the Civil

Code. The most noteworthy of these is the law of July 5, 1985

aiming at the improvement of the condition of road traffic accident

victims and the acceleration of the compensation process.

Other

special laws developed insurance coverage and created

compensation funds for special categories of victims. French law

moved from an individualistic system where victims had to bear

their own losses except where damage was caused by the fault of

another (neminem laedere), to a system where the victim occupies

a central place, with the development of strict liability and the

socialization of risks. Legal doctrine shifted from fault-based to

risk-based liability, and Boris Starck later developed a théorie de

la garantie

whereby law and society should guarantee

compensation to most if not all victims. Under the impulse of such

doctrines, judges and legislators raced to the bottom, pampering

French citizens and residents, and obscuring Civil Code principles

whilst mitigating the escalating cost of welfare by the allocation of

modest compensation. On a number of significant points, French

law strayed away from mainstream European ideas.

4. Law of 9 April 1898.

5. With the exception of arts. 1386-1 to 1386-18 implementing the

European directive of 1985 on product liability.

6. Alongside with the Civil Code articles, parts of it can be read in English

in Olivier Moréteau, France in E

UROPEAN TORT LAW, BASIC TEXTS 85 (K.

Oliphant and B.C. Steininger eds., de Gruyter 2011).

7. On the evolution, see G

ENEVIÈVE VINEY, INTRODUCTION À LA

RESPONSABILITÉ

, nos. 33 to 56 (3d ed., L.G.D.J. 2008).

762 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

Whilst French tort law developed a victim friendly attitude,

much of the efforts to compensate victims were done through the

development of a welfare system combining social security,

compulsory insurance or compulsory insurance coverage of

otherwise uninsurable risks, together with reinsurance and the

development of compensation funds. Though solutions will often

differ, this did not cause the traditional framework of French tort

law to change: to a large extent, it remains conversant with

mainstream European solutions.

In recent years, a movement took place to promote a revision

of the French Civil Code regarding the law of obligations,

including tort law. This coincided more or less in time with the

final steps leading to the publication of major European projects

such as the Draft Common Frame of Reference (hereinafter

DCFR) and the Principles of European Tort Law (hereinafter

PETL), the latter being available when the reform drafts came to

be finalized. This paper offers a brief overview of these French

reform projects, checking their impact on the architecture of the

French Civil Code. It then considers to what extent they take into

account recent European developments, with a special focus on

their compatibility with the PETL.

B. The Rationale of the Draft Projects and their Impact on the

Civil Code

On September 22nd, 2005, a substantial report was submitted

to the French Minister of Justice to propose a comprehensive

reform of the general part of the law of obligations.

The project

leader was the much regretted Pierre Catala, Professor Emeritus at

8. AVANT-PROJET DE RÉFORME DU DROIT DES OBLIGATIONS ET DU DROIT

DE LA PRESCRIPTION

(Documentation française, P. Catala ed., 2006). Available

in English at http://www.justice.gouv.fr/art_pix/rapportcatatla0905-anglais.pdf

[hereinafter Oxford translation] and http://www.henricapitant.org/node/73

[hereinafter Capitant translation]; See Olivier Moréteau, France in EUROPEAN

TORT LAW 2005 270 nos. 1-11 (H. Koziol and B.C. Steininger eds., Springer

2006), and in EUROPEAN TORT LAW 2006 196 nos. 1-8 (H. Koziol and B.C.

Steininger eds., Springer 2008).

2013] FRANCE 763

Université Panthéon Assas Paris 2. It is the work of an impressive

team, including Professor Geneviève Viney (Université Panthéon

Sorbonne Paris 1), a former member of the European Group on

Tort Law, in charge of the provisions dealing with civil liability

(responsabilité civile) (hereinafter the Catala draft). This is a

document of 225 pages, consisting in draft Civil Code articles

preceded with explanatory preambles (at the beginning of each

title) and sentences (at the beginning of each chapter, section, or

paragraph), including a number of substantial footnotes.

In 2008 and 2011, another academic group proposed a reform

of the general part of the law of obligations. Together with a team

of some twenty distinguished scholars, François Terré, also

Professor Emeritus at Université Panthéon Assas Paris 2,

submitted two draft proposals, one to reform the law of contract

(2008, hereinafter the Terré draft on contract)

and the other to

reform the law of tort (2011, hereinafter the Terré draft).

Both

were prepared with the cooperation of the Ministry of Justice under

the aegis of the Academy of Moral and Political Sciences, of which

Professor Terré is a distinguished member. Each publication opens

with the draft Civil Code articles and continues with chapters

presenting the project in general and each subdivision in

particular.

In the meantime, a bill (proposition de loi) was introduced,

presented by Senator Laurent Béteille, limited to the responsabilité

civile or delictual liability.

The Béteille draft is based on the civil

9. POUR UNE RÉFORME DU DROIT DES CONTRATS (F. Terré ed., Dalloz

2008).

10. POUR UNE RÉFORME DU DROIT DE LA RESPONSABILITÉ CIVILE (F. Terré

ed., Dalloz 2011); See Olivier Moréteau, France in E

UROPEAN TORT LAW 2011,

at 216, nos. 1-11 (K. Oliphant and B.C. Steininger eds., de Gruyter 2012), and in

EUROPEAN TORT LAW 2012, at 229, nos. 1-17 (K. Oliphant and B.C. Steininger

eds., de Gruyter 2013).

11. See Olivier Moréteau, François Terré (ed), Pour une réforme du droit

de la responsabilité civile, Collection: Thèmes & commentaires (Dalloz, 2011).

xiv +224 pages, 4 J

OURNAL OF EUROPEAN TORT LAW 342 (2013) (book review).

12. Proposition de loi portant réforme de la responsabilité civile, Sénat, no.

657 (9 July 2010).

764 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

liability part of the Catala draft, drafted under the leadership of

Professor Geneviève Viney. No further action was taken on this

bill, and no legislative action is scheduled for the months to come

regarding tort law.

1. The Catala Draft: A Revision Adulterating the Civil Code

The Catala draft is the first ambitious and comprehensive

attempt to reform the French Civil Code, since the post-war project

to reform the Civil Code,

which influenced Civil Code reform in

the 1960s and 70s, though in other domains. One may also mention

the French-Italian project of a Code of Obligations, published in

1927.

The Catala draft is not a revolution, but an attempt to

clarify the law, taking into account the impressive jurisprudential

work of the Court of Cassation. In that sense, it proposes a revision

rather than a recodification.

Civil Code article numbers are used

in the draft. Specific rules governing civil liability are left outside

the Civil Code with the exception of product liability, maintained

in the Code at articles 1386 to 1386-17 and compensation of

victims of road traffic accidents, moved to articles 1385 to 1385-5.

Fundamental questions are not left aside. The Group had to

decide whether liability in tort and contract had to be dealt with

separately, as in the present Code, or jointly, as recommended by

some scholars. The draft deals with contractual and extra-

contractual liability as a single question: all rules regarding

contractual and extra-contractual liability are presented in one

single section entitled Civil Liability (responsabilité civile). Tort

13. Commission de réforme du Code civil, created in 1945 by a decree of

General De Gaulle: Georges Ripert, Le bilan d’un demi-siècle de vie juridique,

D. 1950 Chron. 1.

14. See 8 M

ARIO ROTONDI, INCHIESTE DI DIRITTO COMPARATO, LE PROJET

FRANCO

-ITALIEN DE CODE DES OBLIGATIONS (1980); VIII TRAVAUX DE

’ASSOCIATION HENRI CAPITANT DES AMIS DE LA CULTURE JURIDIQUE

FRANÇAISE

, JOURNÉES ITALIENNES DE PAVIE ET MILAN (1953).

15. For an attempt to define these terms, see Olivier Moréteau & Agustín

Parise, Recodification in Louisiana and Latin America, 83 T

UL. L. REV. 1103,

1104-1112 (2009).

2013] FRANCE 765

and contract are to sleep in the same bed, which purists may

describe as adultery. However, the Group refused to abandon the

time-honored règle du non-cumul whereby a plaintiff cannot opt

for tort liability where a contractual relationship may serve as a

cause of action. The justification is that in so doing, the plaintiff

may by-pass a contractual clause. This may be a sound argument,

yet it is very often trumped by mandatory rules preventing the

exclusion or limitation of some damages, especially physical harm.

The group opted for a reasonable compromise, allowing the victim

of physical harm to choose the most favorable regime.

2. The Terré Drafts: A Recodification Perfecting the Civil Code

Contrary to the Catala draft, dealing with contractual and extra-

contractual liability as a single question,

both Terré drafts keep

with the traditional architecture of the Code civil (though not using

Civil Code article numbers) and leave contract liability within the

law of contract: tort law aims at restoring the victim to what the

situation would be without the damage (negative or reliance

interest) whereas contractual damages have the additional purpose

of providing an equivalent to the expected benefit (positive or

expectation interest).

The 2011 draft is limited to the law of civil delicts, abandoning

the traditional distinction of delicts (intentional torts) and quasi-

delicts (non-intentional torts), recently described as inaccurate.

The draft is phrased in general provisions and avoids definitions, to

keep the Code flexible, as originally intended. In the overall

presentation of the responsabilité civile project, Philippe Remy and

16. Art. 1341(2) Catala Draft.

17. A position reflected in the Béteille draft (supra note 12), at arts. 1386-

24.

18. E.

DESCHEEMAEKER, THE DIVISION OF WRONGS, A HISTORICAL

COMPARATIVE STUDY 121-38 (Oxford Univ. Press 2009).

766 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

Jean-Sébastien Borghetti

explain why the Terré Group prefers

the recodification option to a simple revision. The draft aims at

reconciling the apparently irreconcilable: rebuilding a consistent,

comprehensive code system, and making it compatible with

leading European options, illustrating how French law had strayed

away from both. Like in the Catala draft, general clauses are

maintained, despite the development of specific regimes. There is

no attempt to rewrite article 1382 (contrary to the Catala draft), and

yet a significant addition is made, indicating that the damage must

be “illicitly caused,” which is a major breakthrough. The draft

article 1 makes it clear that victims must bear their own losses and

may only recover where the damage is caused in an illicit manner,

which may cause Boris Starck to turn in his grave.

C. A Quick Glance at the Drafts and their Compatibility with the

PETL

1. Time Factors

Members of the Terré Group took into account both the

PETL

and the DCFR. In a series of preliminary reflections

written before the group started working and published along with

the draft, Philippe Remy offers a critical appraisal of current

French law,

opening various options such as consolidation

(proposed in the Catala draft) or recodification, the latter being the

option favored by the Group. Of the proposed choice between

general clauses à la Française, a common law style catalogue of

19. Philippe Remy & Jean-Sébastien Borghetti, Présentation du projet de

réforme de la responsabilité délictuelle, in POUR UNE RÉFORME DU DROIT DE LA

RESPONSABILITÉ CIVILE

61 (F. Terré ed., Dalloz 2011).

20. The draft was described as a “bomb in the landscape of personal injury

law” by victims’ rights militants: Claudine Bernfeld, Rapport Terré, Feu la

réparation intégrale, JCP 2012, no. 30.

21. Not fully available in French at the time of publication. See P

RINCIPES

DU DROIT EUROPÉEN DE LA RESPONSABILITÉ CIVILE

, TEXTES ET COMMENTAIRES,

supra note 1.

22. Philippe Remy, Réflexions préliminaires sur le chapitre Des délits, in

OUR UNE RÉFORME DU DROIT DE LA RESPONSABILITÉ CIVILE 61 (F. Terré ed.,

Dalloz 2011).

2013] FRANCE 767

specific torts or to German like selective and hierarchized

protected interests, the Group preferred the French option. In the

preliminary chapter, Philippe Remy reviews the DCFR and the

PETL like visiting a store or a catalogue, shopping for items that

may serve the improvement of the French system and leaving aside

those already abandoned by French jurisprudence, as being old-

fashioned.

The draft, overall, aims at favoring European options

whenever compatible with French views. It comes as no surprise

that it is more European friendly than the Catala draft. Geneviève

Viney, in charge of the civil liability part of the Catala draft, had

left the European Group on Tort Law, and the author of the present

article, who joined the Group in 2002, was not a member of the

Catala taskforce nor of the Terré Group and had limited contacts

with members of both groups during the period of conception and

production. The PETL and DCFR were still in the making when

the Catala Group was working and published its report.

2. Scope of Civil Liability

As mentioned already, the Terré draft is closer to mainstream

European solutions than the Catala draft. The fact that it keeps the

traditional distinction between tort and contract liability, in line

with the DCFR,

rather than merging provisions on tort and

contract damages as proposed by the Catala Group, provides a

significant example. Except where otherwise provided, the

compensation of physical and psychological harm (atteintes à

l’intégrité physique et psychique de la personne) is to be

exclusively regulated by the law of delicts, though occasioned in

the context of contract performance (article 3). This is a useful

clarification, the compensation of such losses having nothing to do

23. Id. at 43-59.

24. Art. 6:101(1) and 3:702 DCFR. See Remy & Borghetti, supra note 19,

at 63 n.9.

768 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

with contractual damages

that aim at satisfying by equivalent the

positive or expectation interest of the victim of non-performance.

Failure to perform contractual obligations is indeed governed by

the law of contract (article 4). The Terré Group insists on clear

boundaries between contractual and delictual liability, and the

unwritten principe du non-cumul remains a French signature.

Whether provisions on damages are gathered in one Code

chapter (articles 1340-1386 Catala draft) or kept separate (Terré

drafts) is not much of an issue, as long as distinct provisions exist

for the compensation of purely contractual losses (expectation

interest). The Catala draft, however, whilst making special

provisions for contract damages, may be blamed for not making

clear provisions directing to the award of expectation damages in

case of non-performance of contract (lucrum cessans), a drawback

if we compare with the clear wording of article 1149 of the French

Civil Code and article 118 of the Terré draft on contract.

The Terré draft makes room for prevention, article 2 enabling

the judge to order reasonable measures to prevent or stop the illicit

act that the claimant is facing. Though not expressly articulated in

the PETL, prevention is a purpose underlying art 2:104 PETL.

Compensation of preventive expenses is also to be found in article

1344 Catala draft and article 51 Terré draft. In her exposé des

motifs to the civil liability part of the Catala draft however,

Geneviève Viney insists that prevention is not a specific function

of tort law, although she refers to article 1369-1 Catala draft

dealing with reparation in kind, which allows the judge to order the

cessation of the illicit act.

Section I of the Terré draft (Du délit civil en général) offers

general provisions that apply not only to cases governed by the

25. Hence a recent shift from contract to tort liability in cases of medical

malpractice: Cass. Civ. 1, 3 June 2010, Bull. I no. 128; Olivier Moréteau,

France in EUROPEAN TORT LAW 2010, at 175, nos. 4-10 (H. Koziol and B.C.

Steininger eds., de Gruyter 2011).

26. Catala Draft, supra note 8. See also V

INEY, supra note 7, at 155-58, no.

66-3.

2013] FRANCE 769

general clause, but also in cases governed by the special regimes,

forming a droit commun in the French sense. It first deals with

fault (articles 5 to 7), offering a classical definition introducing the

concept of illicit act in the French Code, where it is so far only

implied (article 5), as opposed to article 1352 Catala draft, which

makes no reference to the illicit character of the act.

Damage

must be certain and is defined in a general clause as any harm to

“an interest recognized and protected by the law,”

without any

attempt to list such protected interests, although they are featured

as separate heads of damage in Section IV of the draft dealing with

compensation. One notes the recognition of collective interest such

as in case of damage to the environment, whenever provided by the

law (article 8 paragraph 2). Loss of a chance, though unnamed in

article 9, is identified as a separate head of damage, like in article

1346 Catala draft, confirming a well-established jurisprudence and

encompassing recent developments, here at variance from

mainstream European solutions.

3. Causation

Causation is dealt with in different ways in both projects. The

Catala draft deals with it in two short articles, with no attempt to

define causation or give guidance, but simply insisting that a

causal link must be proved (article 1347). The Terré draft defines

causation (article 10), describing the cause of damage as any fact

susceptible of producing it “according to the ordinary course of

things and without which it would not have occurred.” Article 10

also limits liability to immediate and direct consequences of the

author’s act. Causation may be established by all means, which

must be understood as including presumptions.

27. Though saying that the violation of a law or a regulation would be a

delict: art. 1352 para. 2 Catala draft.

28. Art. 8, para. 1 Terré draft; see also art. 1343 Catala draft; art. 2:101

PETL.

770 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

Article 11 and 12 Terré draft deal with complex issues,

proposing rules that are more detailed than the DCFR, yet without

the fine-tuning of the PETL. The idea is to keep the system

flexible, while providing the courts with guidelines. Article 11

makes room for solidary liability in case of multiple tortfeasors,

with a solution similar to article 1348 Catala draft:

[E]xcept as otherwise provided, those who caused the same

damage are each answerable for the whole. If they all

committed a fault, they contribute among themselves in

proportion to the gravity of their respective fault. If none of

them committed a fault, they contribute in equal shares. If

only some of them committed a fault, they alone bear the

final onus of the damage.

Article 12 provides: “[W]hen damage is caused by an

undetermined member of a group of persons acting together, each

one is answerable for the whole, except where proving that he

could not have caused it.”

4. Liability for Others

Liability for others is dealt with in article 13 Terré draft,

providing an interesting structural change that was also discussed

by the European Group on Tort Law, though not implemented in

the PETL. Liability for others is not dealt with as a head of liability

like fault or liability for the fact of things (fait générateur); it deals

with imputation of compensation, shifting the onus to others.

Article 13 locks liability for others to cases provided for by the law

and to cases where there is a delict. This is a big change regarding

liability of parents for the acts of their children, which had been

stretched in scope beyond situations where a child was the author

of a delict, with infants made liable for “objective fault” etc. One

wonders whether the draft does not go too far when limiting the

liability of parents for “the act of the minor,” which seems to

exclude liability for the act of things, animals, or buildings, which

may be too restrictive (article 14), a restriction not to be found in

2013] FRANCE 771

article 1356 of the Catala draft which otherwise makes similar

provisions. Like the PETL, the Catala draft treats liability for

others like a separate head of liability (act of a third party, articles

1355-1360).

The Terré draft also rearranges the development of a general

doctrine of liability for others developed by the courts on the basis

of the present article 1384 paragraph 1, into more suitable sub-

categories: it adds to the strict liability of parents and tutors the

strict liability of legal or natural persons entrusted by judicial or

administrative decision or by contract with the task of organizing

or monitoring the life of a minor (article 14), making a similar

provision in the case of a major under protection (article 15). Other

persons professionally in charge of monitoring another person’s

life are also answerable, though under a simple presumption of

negligence (article 16). Similar provisions are to be found in

articles 1355 to 1358 Catala draft.

Article 17 defines the scope of the employer’s liability for the

fact of the employee using modern language (unlike in article 1359

Catala draft, the antiquated commettant and préposé are replaced

by employeur and salarié), yet with a dualistic approach,

depending upon whether or not employer and employee are bound

by a contract of employment. Where a contract exists, the

employer is liable except when proving an abuse of function (abus

de function) on the part of the employee, namely when acting

without authorization for a purpose unconnected with the

employment (article 17). Under the same article, the employee is

liable for the consequences of his intentional fault, which does not

mean that the employer will always be exonerated in such a case.

Article 17 paragraph 3 Terré draft and article 1359.1 Catala draft

exclude the liability of the employee acting within the limits of his

employment when having committed no intentional fault. The

Catala draft adds an exception for cases where the victim cannot

recover from the employer or from insurance. This latter point is

left open in article 6:102 PETL.

772 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

In the absence of a contract of employment, the liability of the

employer is based on a simple presumption of negligence, the

employee being liable for his own fault (article 18 Terré draft).

Article 1360 Catala draft makes special provision allowing

victims to sue entities regulating or organizing the activity of

independent workers, or entities controlling the activity of others,

such as franchisors or parent companies.

5. Specific Regimes

Section II of the Terré draft deals with the main special delicts

(Des principaux délits spéciaux), making clear that fault liability

may be invoked in every circumstance (article 19 paragraph 1).

However, a victim may not ride on several special regimes (article

19 paragraph 2). The general provision on liability for the act of

things is maintained, though with a major qualification: it is

limited to physical and psychological harm, which is a substantial

reduction of the scope of the Jand’heur jurisprudence (article 20).

Additional detail restates well established jurisprudence: the

custodian is defined as the one having the use and the control of

the thing (article 1354-2 Catala draft has it in one word only: la

maîtrise de la chose), with a presumption that the owner has

custody; as to the fact of the thing, it may lie either in its defects, in

its abnormal position, its state, or its behavior. There is no

reference to the dangerousness of the thing, which keeps well alive

the French idiosyncrasy of strict liability for damages caused by

any sort of things, though with a limited scope if we compare it to

existing law and the Catala draft (article 1354 to 1354-4). No

change is to be noted regarding the fact of animals (article 21) and

buildings (article 22), the draft keeping the wording of article 1385

and 1386. Though the latter has been swallowed by article 1384 in

recent jurisprudence,

it would regain its lost autonomy for the

29. Cass. Civ. 2, 22 October 2009, Bull II no. 255; Olivier Moréteau,

France in EUROPEAN TORT LAW 2009, at 198, nos. 48-53 (H. Koziol and B.C.

Steininger eds., de Gruyter 2010).

2013] FRANCE 773

compensation of damage to property if excluded from the scope of

liability for the fact of things.

A new special regime appears under the name of classified

facilities, a substitute to liability for abnormally dangerous things

to be found at article 1362 Catala draft, which echoes article 5:101

PETL. Article 23 reads:

[E]xcept as otherwise provided, the operator of a facility

classified in accordance with the Environment Code is

answerable by operation of law for physical or

psychological harm to persons or damage to property

caused by its operation, when it is precisely the occurrence

of the risk that justified classification that caused the

damage.

Classification serves a preventive purpose. Liability is strict

and exoneration causes are limited to the inexcusable fault of the

victim or the intentional fact of a third party where such facts can

be characterized as force majeure, which fits the scenario of an act

of terrorism.

Another addition is codification of the doctrine of trouble du

voisinage, the French version of nuisance, thus far a purely

jurisprudential construct. Article 24 Terré draft does not differ

much from what is proposed in article 1361 Catala draft, also

setting normal inconvenience as the standard. Likewise, liability

for damages caused by motor vehicles is added to the Civil Code

(articles 25 to 28), yet with a few changes. Product liability

(articles 29 to 42 Terré draft; articles 1386 to 1386-17 Catala draft)

is of course based on the 1985 EU directive, with a few cosmetic

changes. Section II ends with article 43 on medical malpractice. It

makes health providers liable for damage caused by their fault,

regardless of the existence of a contract. Non-fault liability may

only prosper in those cases provided for in the Public Health Code.

774 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

6. Exclusion and Exoneration

The Terré draft addresses exclusion and exoneration, clearly

distinguishing two concepts that are easily confused. Some

defences aim at excluding liability altogether when, due to certain

circumstances, there is no delictual conduct (article 45). Others

exonerate totally or partially the author of a delict when some

outside circumstances interfere with causation (articles 46 and 47).

The Catala draft does not confuse the two, dealing with

exoneration in articles 1349 to 1351-1, and justification or

exclusion (though none of these words is used) in article 1352. The

European Group on Tort Law preferred the use of the common law

word “defences,” using it as a generic title in the PETL (Title IV.

Defences).

a. Exclusion

On all accounts, both Catala and Terré drafts do not aim at

changing the law but bringing useful clarification, whilst

completing the Code civil with solutions that have been developed

by the courts.

Exclusion is dealt with in article 1352 Catala draft, stating that

there is no fault in situations provided for by articles 122-4 to 122-

7 of the Penal Code. The Terré Group preferred to list these

justifications in article 45: “as provided for by the Penal Code, no

liability stems from the damaging act, if it was prescribed by

legislative or regulatory provisions, imposed by a legitimate

authority, or ordered by the necessity of self-defence or of

safeguarding a higher interest.”

Safeguard of a higher interest is taken care of in article 122-7

of the Penal Code, excluding liability when the defendant faces

actual or imminent danger to herself, a stranger, or property, and

accomplishes an act necessary to safeguard such person or

30. The French translation of Title IV (Les causes limitatives et

exonératoires de responsabilité) reflects and amplifies the conceptual confusion

in that part of the PETL.

2013] FRANCE 775

property, except where the act is disproportionate. The Terré draft

adds a qualification in the final part of article 45: if the higher

interest to be safeguarded is not the victim’s interest, the victim

may claim “equitable” compensation. This may apply whenever it

is necessary to damage third-party property in order to assist a

person in a situation of imminent danger, such as breaking into a

room to rescue a suffocating child. The drafters seem anxious to

avoid a possible interplay with the law of unjustified enrichment,

though one may find it more equitable to allow the third party to be

compensated by the safeguarded party on a de in rem verso basis

rather than by the Good Samaritan on the basis of the final

provision of article 45. The PETL are conducive of such a solution,

excluding liability in case of necessity (article 7:101(1)(b)), the

commentary explaining that restitution claims remain open in such

a case.

However, the wording of article 45 leaves room for a

claim against the enriched rather than against the Good Samaritan.

Last, but not least, volenti non fit injuria is reflected in the

second paragraph of article 45, excluding compensation to the

victim who consented to the damage, except in those cases where

the law does not allow the victim to renounce the protection of the

infringed interest, which echoes article 7:101(1) PETL. Likewise,

The Catala draft excludes compensation where the victim sought

the harm voluntarily (article 1350).

b. Exoneration

Exoneration is dealt with in articles 1349 to 1351-1 Catala draft

and articles 46 and 47 Terré draft. All articles address cases where

outside circumstances tamper with causation. Both drafts agree on

31. Clothilde Grare-Didier, Des causes d’exclusion ou d’exonération de la

responsabilité in POUR UNE RÉFORME DU DROIT DE LA RESPONSABILITÉ CIVILE

185, 187 (F. Terré ed., Dalloz 2011). However, in the absence of a Civil Code

article, enrichissement sans cause does not obey to stringent requirements,

French jurisprudence making reference to equity: 2 MURIEL FABRE-MAGNAN,

DROIT DES OBLIGATIONS, RESPONSABILITÉ CIVILE ET QUASI CONTRATS 447 et

seq. (2d ed., PUF 2010).

32. Art. 7:101 PETL cmt. 13.

776 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

a generic use of force majeure that includes the act of a stranger or

the act of the victim and is distinguished from a fortuitous event

(cas fortuit), meant to be a sub-category (article 1349 Catala draft;

article 46 Terré draft). When they can be characterized as force

majeure, such acts exonerate the defendant, which reflects current

court practice, which is not fully in line with article 7:102 PETL.

The drafts differ on the definition of force majeure.

According to article 1349 paragraph 3 Catala draft, “Force

majeure is an unavoidable event that the actor could not foresee or

whose effects one could not avoid through appropriate

measures.”

In this definition, unforeseeability and irresistibility

are not cumulative conditions. Unforeseeability does not appear in

the Terré definition. Article 46 defines force majeure as an event

which, by itself or by its consequences, cannot be resisted through

appropriate measures. This definition is at variance with that used

in the context of contractual obligations, which does not generate

problems given the clear separation of tort and contract liability in

the Terré draft.

Partial exoneration may only exist in case of fault of the victim,

when it does not have the characteristics of force majeure (article

1351 Catala draft; article 47 Terré draft), which does not change

the law and reflects article 8:101 PETL. However, the Catala draft

requires the victim’s fault to be serious (faute grave) for partial

exoneration, when suffering physical harm. This solution is meant

to be protective of victims of physical injury but it may add useless

complexity. Both drafts exclude partial exoneration when the

victim is deprived of judgment, meaning that minors must receive

33. Art 7:102 PETL provides for full or partial exoneration and applies to

strict liability only.

34. Capitant translation, supra note 8.

35. Irresistibility is the sole factor insisted on these days in tort cases: See

ENEVIÈVE VINEY & PATRICE JOURDAIN, LES CONDITIONS DE LA

RESPONSABILITÉ

no. 396 (3rd ed., L.G.D.J. 2006). The Terré Group rightly

keeps a requirement of reasonable foreseeability when force majeure is used in

contractual obligations (art. 100 Terré draft on contract).

2013] FRANCE 777

full compensation even when acting negligently.

This latter

solution must be approved; it would have the effect of overruling a

much criticized jurisprudence.

7. Contract Clauses

Both drafts deal with contract clauses limiting or excluding

liability, with a scope limited to tort liability in the case of the

Terré draft. Liability for physical harm (to which the Terré draft

adds psychological harm) may not be excluded or limited by a

contract clause (article 1382-1 Catala draft; article 48 Terré draft).

Liability for fault cannot be limited or excluded by a contract

clause (article 1382-4 Catala draft; article 48 Terré draft). Unless

otherwise provided, under article 48 Terré draft, no-fault liability

may be limited or excluded by contract, but such limitation or

exclusion has no effect regarding physical and psychological harm,

in full accordance with the principle that “Life, bodily or mental

integrity . . . enjoy the most extensive protection” (article 2:102(2)

PETL).

8. Compensation

The French Civil Code makes no provision regarding

compensation. Rules have been developed by doctrine and

jurisprudence, often adapting Civil Code provisions applicable to

contract damages (articles 1146 to 1155).

This is therefore an

important area where the Code needs to be completed. Both drafts

36. Art. 1351-1 Catala draft; art. 47 Terré draft.

37. Cass. Plen. 9 May 1984, JCP 1984, II, 20255 (note N. Dejean de la

Bâtie, 20256, note P. Jourdain), D. 1984 Jurisp. 525 (note F. Chabas). See

Laurence Francoz-Terminal et al., Children as Victims under French Law, in

HILDREN IN TORT LAW, PART II: CHILDREN AS VICTIMS 89, 97, no. 27 (M.

Martín-Casals ed., Springer 2007).

38. Christophe Quézel-Ambrunaz, La responsabilité civile et les droits du

Titre I du Livre I du Code civil, À la découverte d’une hiérarchisation des

intérêts protégés,

RTDCiv 2012, 251.

39. GENEVIÈVE VINEY & PATRICE JOURDAIN, LES EFFETS DE LA

RESPONSABILITÉ

no. 56 (2d ed., L.G.D.J. 2001).

778 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

often make similar provisions, though the perspective may be

different at times, due to differences in scope: over-inclusive view

of civil liability in the Catala draft, encompassing contractual and

extra-contractual obligations compared to the exclusive, tort-only

approach of the Terré draft. Yet, as to what pertains to extra-

contractual liability, both aim at compensating damage unjustly

caused, thereby promoting prevention and cessation of illicit

disorder. This paragraph will focus on some novelties or

specificities of French law.

a. The Principle of Full Compensation

Full compensation of damage remains a cardinal principle,

subject to exceptions that will be discussed below. The chief idea

is to restore the victim to the position she would have been in if the

wrong had not been committed (article 1370 Catala draft; article 49

Terré draft; compare with article 10:101 PETL and article 6:101(1)

DCFR). According to article 1368 Catala draft and article 50 Terré

draft, the judge has complete discretion when it comes to choosing

between compensation by equivalent (damages) and restoration in

kind. On this point, both drafts reflect the French tradition and do

not follow the PETL.

Both drafts (articles 1379-5 to 1379-8 Catala draft; articles 61

and 62 Terré draft) make sure that the victim receives full

compensation, no more and no less, which is a key element in

orchestrating subrogatory action by third-party payers such as

welfare, social security, or insurance, in cases where the victim

received full or partial payments from such third-party payers. All

this is to be based on the interplay of Civil Code and special

legislation.

b. Restoration in Kind

Restoration in kind must aim at suppressing, reducing, or

compensating the damage (article 1369 Catala draft; article 51

40. Arts. 10:101 and 10:104 PETL favor damages over restoration in kind.

2013] FRANCE 779

Terré draft). According to article 51 Terré draft, it may be

supplemented with an allocation of damages, but may not interfere

with the defendant’s fundamental rights or impose an excessive

burden, which echoes article 10:104 PETL. Article 1369-1 Catala

draft and article 51 paragraph 2 Terré draft allow for self-help,

provided that it is judicially authorized. The defendant may offer

restoration in kind when damages are claimed (article 51

paragraph 3 Terré draft), which invites the judge to adopt the less

costly option.

c. Assessment and Itemization of Damages

Both drafts invite the court to assess damages on the day of the

judgment, taking into account the foreseeable evolution of the

damage (article 1372 Catala draft; article 52 paragraph 1 Terré

draft), in accordance with current jurisprudence. Additional

compensation may be reclaimed when the damage happens to

increase after judgment (article 1375 Catala draft; article 52

paragraph 1 Terré draft).

Article 1374 Catala draft and article 52 paragraph 2 Terré draft

force the judge to detail the heads of damage. This breaks with the

long-term Court of Cassation practice of accepting compensation

by way of a lump sum, on the pretense that assessment of damage

is a question of fact not to be reviewed by the highest court.

This

does not mean that all lower courts refrain from giving detailed

judgment: many decisions itemize heads of damage and assign

reasons. However, for the sake of good justice and in furtherance

of the principle of exact compensation, it is reasonable to request

itemization in all cases. As a rule, itemization of damages does not

restrict the victim’s right to use the moneys freely, with private

discretion, though the court may impose a particular appropriation

in exceptional cases (article 1377 Catala draft; article 55 Terré

draft).

41. VINEY & JOURDAIN, supra note 39, at no. 62.

780 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

d. Punitive Damages or Disgorgement of Illicit Profit

Article 1371 Catala draft makes provision for punitive

damages: where an obviously intentional fault becomes a source of

profit (faute lucrative), punitive damages may be awarded, in

addition to compensatory damages. The amount of punitive

damages must be clearly distinguished from compensatory

damages and part of them may be made payable to the Public

Treasury. Punitive damages may not be the object of insurance.

Naming this additional award “punitive damages” may be a

misnomer. It seems the purpose of the rule is not so much to

punish the tortfeasor but disgorging illicit profit, with a reasonable

allocation to the Public Treasury, to prevent or limit an unjustified

enrichment of the victim.

The Terré draft has a similar provision, though more carefully

drafted, since article 54 does not use the punitive damages

terminology. Article 54 allows the disgorgement of illicit profits as

a substitute to purely compensatory damages, provided there has

been intentional fault aimed towards illicit gains (faute

lucrative).

Under this rule, any amount exceeding pure

compensation cannot be covered by liability insurance. The Terré

Group carefully drafted article 54 so that it would be strictly

restitution-based, thereby avoiding any confusion with punitive

damages, which never was and should not be an option in French

tort law. This is a much-needed provision, preferable to its Catala

counterpart.

e. Mitigation of Damage

Both drafts plan to introduce a duty to mitigate damage into

French law. Article 1373 Catala draft provides that “[w]hen the

victim by sure, reasonable, and proportionate means might have

reduced the extent or the aggravation of the injury suffered, his

failure to do so will result in a reduction of his award, unless the

42. See Rodolphe Mésa, Précisions sur la notion de faute lucrative et son

régime, JCP 2012, no. 625.

2013] FRANCE 781

nature of the measures would be such as to violate his physical

integrity.”

Given the scope of the draft, this is meant to apply to

liability in tort and in contract. Article 53 of the Terré draft

introduces a similar duty though limited to tort law,

also saying it

does not apply to cases of physical and psychological harm. In

other cases, the judge may reduce the amount of damages awarded

to the victim for failure to take safe and reasonable steps to

mitigate the loss. Unlike the PECL,

the PETL make no provision

to this effect. This would be a significant change in French tort

law, though recent jurisprudence leans in this direction:

acceptable in the context of contracts, mitigation of damage is

more controversial in tort law, but reflects the standard of conduct

as articulated in article 4:102 PETL.

f. Physical Harm

Articles 1379 to 1379-3 Catala draft and articles 56 to 64 Terré

draft deal with the compensation of physical and psychological

harm, bringing much desirable clarification and certainty to the

matter. These rules will not be discussed in much detail. There was

considerable discussion on the subject at the time of the adoption

of the special law on road traffic accidents (1985) and the matter

received particular attention with a report by Professor Lambert-

Faivre (2003) and the so-called nomenclature Dintilhac (2005),

triggering subsequent legislative action in 2006 and 2010.

Reference must be made to tables or schedules adopted by way of

regulation, in an itemized manner (article 1379-1 Catala draft;

43. Capitant translation, supra note 8.

44. A comparable duty appears in art. 121 Terré draft on contract, which

connects to the duty of good faith.

45. Art. 9:505 PECL.

46. Cass. Civ. 2, 24 November 2011, JCP 2012, no. 170 (note V. Rebeyrol);

RTDCiv 2012, 324 (obs. P. Jourdain): this confusing case seems to limit the

duty to damage to property, and to the prevention of additional damage that has

not been caused yet, rather than mitigation of existing damage. Id. at 326.

47. For details, see Pauline Remy-Corlay, De la réparation, in P

OUR UNE

RÉFORME DU DROIT DE LA RESPONSABILITÉ CIVILE

191, 203 et seq. (F. Terré ed.,

Dalloz 2011).

782 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

articles 56 and 57 Terré draft). The victim’s pre-existing condition

is only to be taken into account to the extent that its adverse

consequences began manifesting themselves at the time the victim

was harmed (article 1379-2 Catala draft; article 57 Terré draft),

which reflects current jurisprudence.

Article 1379 Catala draft

and article 59 Terré draft define the scope of compensation,

including actual and future expenses, lost income and loss of

profits. Compensation of future losses can take the form of indexed

periodic payments, which can later be changed into capital (article

1379-3 Catala draft; article 60 Terré draft).

g. Indirect Victims

Both drafts (article 1379 Catala draft; article 63 and 64 Terré

draft) deal with the compensation of indirect victims (victimes par

ricochet), who appear to benefit from much larger compensation

awards compared to what they get in other jurisdictions.

The

victim’s dependents can be compensated for the loss of support.

The Terré draft specifically refers to the spouse, parents, children,

and special others living with the victim where the Catala draft

refers to them under the generic name of victimes par ricochet. The

Terré draft makes them eligible for compensation of moral

damage, and may cumulate such compensation with rights they

receive from the victim as successors in case of death (article 63).

Compensation of their indirect damage (dommage réfléchi) is

subjected to exoneration causes affecting the direct victim’s claim.

Indirect damage may not be compensated outside the scope of

article 63, except in exceptional cases and for very specific reasons

(article 64). These rules come close to articles 10:202(2),

10:301(1), and 8:101(2) PETL.

h. Damage to Property

Both drafts adopt classical solutions regarding compensation of

damage to property. When a corporeal thing is damaged, the victim

48. Id. at 204.

49. Id. at 218.

2013] FRANCE 783

is entitled to the cost of repair or the cost of a replacement,

whichever of the two is lower (article 65 Terré draft), or the cost of

replacement if repair is costing more (article 1380 Catala draft).

When none of these solutions is possible, compensation must

reflect the value of the thing at the time of the judgment, taking

into account its condition just before the damage occurred (article

1380-1 Catala draft; article 65 Terré draft). This looks slightly less

generous than article 10:203(1) PETL which allows compensation

to the extent of the upper bracket if the victim chooses the more

expensive option, “if it is reasonable to do so.” All related

economic losses must be compensated (article 1380-2 Catala draft;

article 66 Terré draft). In case of intentional harm causing serious

non-pecuniary loss, the latter may be compensated (article 67 Terré

draft). Article 1380-2 Catala draft is broad enough to support not

only compensation of such a loss but also of any damage caused by

loss of enjoyment.

i. Non-Pecuniary Damage

Pure non-pecuniary damage (dommage moral) is taken care of

in the last two articles of the Terré draft (articles 68 and 69). The

Catala draft mentions “non-economic and personal harm” at article

1379, listing psychological harm, pain and suffering,

disfigurement, deprivation of pleasure (préjudice d’agrément), and

sexual impairment.

Article 68 Terré draft opens a right to compensation for any

form of harm to “moral integrity, particularly dignity, honour,

reputation, or private life.” This echoes article 10:301(1) PETL.

Such a right is recognized not only to natural persons, but also to

juridical persons in case of serious fault. This latter provision may

seem rather odd, but finds some support in recent cases decided by

the Court of Cassation

and by the European Court of Human

50. Cass. Com., 15 May 2012, Bull. IV no. 101, Olivier Moréteau, France

in EUROPEAN TORT LAW 2012, at 229, 247-49, nos. 43-47 (K. Oliphant and BC

Steininger eds., de Gruyter 2013).

784 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

Rights.

Professor Terré himself wrote a plea for its adoption,

insisting that wrongful harm to the reputation of an enterprise may

have serious adverse economic consequences. This is certainly

true, but should we not characterize such harm as economic loss,

though admittedly, it is of a class difficult to assess?

It is a good

thing to have special provisions for pure non-pecuniary damage,

but we should not forget that French law also makes room for the

compensation of pure economic loss.

The final provision relies on vast judicial discretion regarding

the assessment of non-pecuniary harm, which cannot be tabled in

any manner. According to article 69 Terré draft, damages may be

nominal or exemplary when the harm was caused intentionally,

thereby opening a broad spectrum, which may stretch as far as

allowing a punitive element in the assessment of damages. Though

mental integrity and human dignity rank very high on the scale of

protected interests (article 2:102 PETL), this may not warrant such

a generous provision, especially when protection is not limited to

natural persons. This exemplary-damages provision does not

reflect the spirit of the draft, which aims at the exact assessment of

damage, full compensation, and avoidance of unjustified

enrichment. Such right is recognized not only to natural persons,

but also to juridical persons in case of serious fault, which is

controversial, especially in a system where tort law opens

51. See Association for European Integration and Human Rights and

Ekimdzhiev v. Bulgaria, 28.6.2007, (ECHR), recognizing that an association is

entitled to the protection of its correspondence. Remy-Corlay, supra note 47, at

221.

52. François Terré, Le préjudice moral, in P

OUR UNE RÉFORME DU DROIT DE

LA RESPONSABILITÉ CIVILE

223 (F. Terré ed., Dalloz 2011). The author

recognizes that it is difficult in such cases to distinguish non-pecuniary and

economic damage. Id. at 224.

53. M

ARCEL PLANIOL & GEORGES RIPERT, 6 TRAITÉ PRATIQUE DE DROIT

CIVIL FRANÇAIS

, OBLIGATIONS, PART I, at no. 552 (P. Esmein ed., 2d ed.,

L.G.D.J. 1952), wisely state that a juridical person cannot suffer and therefore

cannot be victim of non-pecuniary damage, adding that when courts offer such

compensation, either they want to compensate a pecuniary damage that they are

unable to assess, or they want to impose a non-criminal penalty, camouflaged

under the name of compensation of non-pecuniary damages.

2013] FRANCE 785

compensation for pure economic loss. Were this to pass into law, it

would be hoped that French judges will not use it as a gateway

towards punitive damages and will rather make sure that the spirit

of the whole reform prevails.

D. Conclusion

It is to be hoped that these remarkable projects will turn into a

legislative draft in the not too distant future, in order to rejuvenate

the French Code civil. We know of too many enlightened drafts

that, in other European countries, have not been turned into

legislation in this fertile area of the law. The fact that the

legislative process starts moving regarding contractual obligations

(Project de loi of November 27, 2013) is encouraging.

If a choice is to be expressed, the author has a strong

preference for the Terré draft, which is more in harmony not only

with the spirit of the French Civil Code, but also with current

European trends. It reflects a perfect understanding of the Code

dynamic and taxonomy. Its logic is flawless. Its style is

impeccable, making Francois Terré a worthy follower of Portalis’

philosophy. It may also be praised for leaving article 1382 intact,

not only because it is iconic, but because it expresses the essence

of the Civil Code.

The Catala attempt to rewrite art 1382 Civil Code is at best

questionable, if not iconoclast. It looks as vain as repainting

Delacroix’ La liberté guidant le peuple or re-sculpting

Michelangelo’s Moses. One may repaint the Eiffel Tower or

replace an elevator, but making it higher would change a marker of

French identity. Art 1382 is known the world over; it is the Mona

Lisa of the legal Louvre. It lives in the eye of the citizen and the

judge alike. Changing it is like tampering with the Declaration of

the Rights of Man and the Citizen.

Let us fix the minor flaws in the final articles and have the

representatives of the French people vote the Terré draft into law,

786 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

rather than moving it by delegated legislation as planned for

contractual obligations. The Civil Code will be more complete and

reflect more European harmony.

II. RECENT JURISPRUDENCE IN FRENCH TORT LAW

Over the past ten years, I have had the privilege of reporting on

French tort law for the European Yearbook of Tort law, published

by the Vienna based European Centre of Tort and Insurance

Law.

The following are selected cases commented in the five

most recent volumes. The first cases deal with the environmental

disaster caused by the sinking of the tanker Erika. A second series

of cases deals with proportional liability, showing how French

courts, whilst dealing with causation problems in a French

pragmatic way, happen to be in line with the Principles of

European Tort Law.

A. The Sinking of the Tanker Erika and the Advent of

Environmental Damage

The tanker Erika split in two off the French Atlantic coast in

severe weather on December 12, 1999 and spilled 15,000 tonnes of

her heavy fuel oil cargo. The entire crew of 26 was airlifted to

safety. The two sections, with a further 15,000 tonnes of fuel oil

remaining in the cargo tanks, sank in 120 metres of water about

100 km from the mouth of the River Loire. The spilt cargo was

blown east towards the coast and on December 25 the first oil

washed ashore. By early January various stretches along a 400 km

length of French coastline had been polluted, and thousands of

seabirds had been oiled. The State, a number of local authorities,

associations, and individuals had initiated criminal proceedings,

together with claims in damages (plaintes avec constitution de

partie civile), against Total, the French multinational oil company

54. Professor Michel Séjean (Université de Bretagne-Sud) has taken over as

of 2013.

2013] FRANCE 787

owning the cargo, the carrier, and other protagonists of the

catastrophe.

Criminal proceedings were initiated against the ship-owner, but

also against the owners of the cargo, the Total oil company. In a

judgment of January 2008, the Paris court of first instance found

them guilty of marine pollution, and sentenced them to fines

ranging from € 75,000 for individuals to € 375,000 for

corporations. In addition, the Paris court found all parties liable,

awarding a total of € 165 million to a wide range of victims,

including a sum to compensate “damage resulting from harm to the

environment.”

The carrier’s liability was confirmed by the Court of Appeal in

Paris in a judgment of March 30, 2010, increasing the total amount

of damages to over € 200 million. Criminal sentences were

confirmed, also against Total, who had inspected and vetted the

vessel. Total was found criminally guilty but not civilly liable, the

Paris Court of Appeal reversing the first judgment on this point.

Liability was based on the International Convention on Civil

Liability for Oil Pollution Damage. The Convention places liability

on the carrier, and not on the owners of the cargo.

Appeal (pourvoi) was made to the Court of Cassation. In a

lengthy, very detailed judgment, the Criminal Chamber of the

Court of Cassation upheld the judgment of the Paris Court,

reversing on one point only: Total, as owner of the cargo, is also to

be found solidarily liable on the basis of the International

Convention, for having interfered with the carriage, and based on

the trial judge’s finding, the Court of Cassation agrees that Total’s

fault satisfies the requirement of recklessness (the Court uses the

55. TGI Paris, 16 January 2008, commented in Olivier Moréteau, France in

UROPEAN TORT LAW 2008, at 264, 278-80, nos. 48–55 (H. Koziol and B.C.

Steininger eds., Springer 2009).

56. CA Paris, 30 March 2010, no. 08-02278, JCP 2010, no. 432 (note K. Le

Couviour), commented in Olivier Moréteau, France in E

UROPEAN TORT LAW

2010, at 175, 192-95, nos. 48–58 (H. Koziol and B.C. Steininger eds., de

Gruyter 2011).

788 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

term faute de témérité), meaning that liability can be extended

from the carrier to the charterer of the vessel.

The latest Court of Cassation judgment

is bringing a long

judicial story

to a happy end. There would be a lot to say on this

very lengthy decision, the longest the reporter has ever read from a

court known for the brevity of its judgments (107 pages in two-

column fine print in the official Bulletin), but the present report

will only focus on the points having an impact on general tort law.

First, the concept of environmental or ecological harm

(préjudice écologique) is now officially recognized at the highest

level of the French judiciary,

a concept that will need to be

narrowed down in the years to come

and may also find

legislative recognition in the Civil Code.

This is a remarkable

achievement, especially as the Advocate General denied the

autonomy of environmental harm, arguing that it is not distinct

from the harm suffered by the environmental non-profit

associations, but rather merges within their non-pecuniary

damage.

The Paris Tribunal de grande instance

declared that

compensation of environmental harm was owed to “the local

authorities to whom the law grants a specific competence in matter

57. Cass. Crim., 25 September 2012, no. 10-82938, Bull. Crim. no. 198, D.

2012, at 2711 (note P. Delebecque); RTDCiv 2013, 119 (obs. P. Jourdain);

commented in Olivier Moréteau, France in E

UROPEAN TORT LAW 2012, at 229,

249-52, nos. 48–55 (K. Oliphant & B.C. Steininger eds., de Gruyter 2013).

58. See also Cass. Civ. 3, 17 December 2008, D. 2009, at 701 (note M.

Boutonnet), commented in Olivier Moréteau, France in

EUROPEAN TORT LAW

2009, at 198, 210-213, nos. 35-42 (H. Koziol and B.C. Steininger eds., 2010),

decided on another claim generated by the same disaster.

59. It was first recognized by the Paris lower court in the first judgment. See

supra note 55 & Moréteau, supra note 57.

60. Valérie Ravit & Olivier Sutterlin, Réflexions sur le destin du préjudice

économique « pur », D. 2012, at 2675.

61. Proposition no. 546 du Sénateur Retailleau, proposing the addition of

article 1382-1: “Any act whatever of man that causes damage to the

environment obliges him by whose fault it occured to repair it.” As noted by

Philippe Delebecque (supra note 57, at 2712), this would need further

elaboration.

62. See Jourdain, supra note 57, at 120.

63. Supra note 55.

2013] FRANCE 789

of environment, conferring upon them a special responsibility in

the protection, management, and preservation of a territory.”

Only those authorities having proved effective harm to a sensitive

zone got compensation.

Given its object, the LPO (Ligue de

protection des oiseaux) is also eligible. The Paris Court noted the

large scope of the disaster on the thousands of birds hibernating in

the region, and also the very efficient role of LPO in taking care of

the birds during several months, in connecting with the local

authorities and population, as well as its national and international

representativeness.

Such harm appears to be considered

objectively rather than in consideration of the person of the

victim.

It had been recognized before but never with such high

scale compensation.

Second, Total had been found guilty of involuntary pollution,

and liable for the consequences thereof by the Paris Tribunal de

grande instance. The criminal part of the judgment had been

affirmed by the Paris Appeal Court, but liability was denied.

According to the appellate court, the International Convention on

Civil Liability for Oil Pollution Damage places liability on the

carrier, and not on the owners of the cargo. As a charterer, the oil

company is not liable “unless the damage resulted from their

personal act or omission, committed with the intent to cause such

damage, or recklessly and with knowledge that such damage would

probably result.”

The Paris Court of Appeal recognised that the

oil company had been negligent in chartering a tanker that was in

an advanced state of decay. Total had after all participated in the

vetting process; their representatives knew of the bad state of the

64. Par. 3.1.2.2.2.3. of the Judgment.

65. See supra note 55.

66. Par. 3.1.2.2.6. of the Judgment.

67. See Laurent Neyret, Naufrage de l’Erika: vers un droit commun de la

réparation des atteintes à l’environnement, D. 2008, 2681, 2685.

68. See id. at 2681, and Laurent Neyret, La réparation des atteintes à

l’environnement par le juge judiciaire, D. 2008, 170, 172.

69. Art III(4)(c) of the the International Convention on Civil Liability for

Oil Pollution Damage.

790 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

vessel. However, in the opinion of the Court, they did not act with

full awareness that by so acting, pollution damage was very likely

to ensue. Commenting this holding, the present reporter noted:

“This part of the judgment should not resist the Court of Cassation

scrutiny.”

Indeed it did not. The highest court wisely recognized

that the oil company had been reckless, a judgment found severe

by a distinguished scholar who also claims that the duty of Total to

control oil carriage is not a sufficient foundation for making the

company liable as a carrier.

It is difficult to contend however that the damage was not

caused by some omission on the part of the oil company whose

representatives participated in the vetting process. The first judges

had found Total negligent and not reckless, yet finding them liable.

This was wrong, the International Convention requesting

recklessness to make the charterer liable. According to the Court of

Cassation, rather than denying Total’s liability, the appellate court

should have characterized Total’s fault as a faute de témérité, in

other words recklessness. They were wrong in characterizing it as

excusable.

Interestingly, courts in the United States are facing a similar

challenge in the wake of the oil pollution in the Gulf of Mexico,

after the explosion of the Deepwater Horizon offshore oilrig on

April 20, 2010. Under the federal Oil Pollution Act, liability of the

polluter is limited to $ 75 million in the case of an offshore facility

such as the Deepwater Horizon oilrig.

However, limitations do

not apply against a defendant acting with “gross negligence or

wilful misconduct.”

Other competing provisions may apply, but the point is that the

commonplace concepts of “recklessness” or “gross negligence” are

central in the solving of major oil pollution cases. These apparently

70. Moréteau, supra note 56, at 193, no. 53.

71. Delebecque, supra note 57, at 2715. Professor Delebecque is president

of the Chambre arbitrale maritime de Paris.

72. 33 U.S.C.A. § 2704(a)(3).

73. 33 U.S.C.A. § 2704(c)(1)(A).

2013] FRANCE 791

simple words become the heart of the matter once the provision

that enshrines them is found applicable. How are they to be

interpreted? May each judge use his state or national standard?

Should there be a federal standard (in the case of the United States)

or an international one (when an international convention is

applicable)? The question is relatively simple when discussing the

liability of an individual, but becomes complex when applied to a

corporation or a multinational group.

Professor Patrick Martin, an expert in mineral law and scholar

in jurisprudence, looks at the matter with comparative law eyes,

encompassing the common law, Roman law, and the Louisiana

civil law.

His approach is primarily linguistic and philosophical.

He cites, on the one hand, judges and scholars who find it

impossible to identify shades of negligence and to classify it as

slight, ordinary, or gross negligence. On the other hand, he cites

other United States judges who claim that it is not even necessary

to instruct juries on the matter of distinguishing ordinary and gross

negligence, so much this distinction is common-sense. He finally

cites an 1822 case, Tracy v. Wood, where Supreme Court Justice

Story, sitting as circuit judge, noted:

If a bag of apples were left in a street for a short time

without a person to guard it, it would most certainly not be

more than ordinary neglect. But if the bag were of jewels or

of gold, such conduct would be gross negligence. In short

care and diligence are to be proportioned to the value of the

goods, and the temptation and facility of stealing them and

the danger of losing them.

Martin concludes: “the greater the degree of potential (or

actual) harm, the greater the degree of negligence.”

Transferring

this to the Erika oil spill, the first Paris judges were no doubt

wrong in holding Total liable without checking whether they had

74. Patrick H. Martin, The BP Spill and the Meaning of “Gross Negligence

or Wilful Misconduct,” 71 L

A. L. REV. 957 (2011).

75. Tracy v. Wood, 24 F. Cas. 117 (Story, Circuit Justice, C.C.D.R.I. 1822).

76. Martin, supra note 74, at 975.

792 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

been reckless and not simply negligent: the Convention could not

be ignored. The Paris Appellate judges may be wrong in

characterizing Total’s fault as excusable in the circumstance. May

one reasonably imagine that crude oil can safely be carried in an

old and defective tanker around the hazardous coasts of Brittany,

without thinking of a possible disaster? Transporting two gallons

of oil in a defective container may be regarded as ordinary

negligence. Carrying thousands of tons in an old and defective

tanker is recklessness or gross negligence. It is good news that the

Court of Cassation agrees.

B. Proportional Liability: French and European Perspectives

Converge

Proportional liability is on the cutting edge of tort scholarship.

The Principles of European Tort Law have proposed proportional

liability as a response to causal uncertainty, an issue recently

revisited by members of the European Group on Tort Law.

particular cases where there are multiple tortfeasors or uncertainty

of causation, various doctrines are applied, where the causation

requirement is attenuated.

1. Multiple Tortfeasors, Concurrent and Alternative Causes

French jurisprudence does not accept that a victim may be

undercompensated just because one or several of the tortfeasors

may be unknown. For the sake of justice, it also wants to avoid

shifting the whole burden of compensation on those tortfeasors

who have been identified.

77. PROPORTIONAL LIABILITY: ANALYTICAL AND COMPARATIVE

PERSPECTIVES (Israel Gilead et al. eds., de Gruyter 2013). Some of the text that

follows reproduces verbatim paragraphs of Olivier Moréteau, Causal

Uncertainty and Proportional Liability in France, in P

ROPORTIONAL LIABILITY:

ANALYTICAL AND COMPARATIVE PERSPECTIVES 141 (Israel Gilead et al. eds., de

Gruyter 2013), more particularly nos. 9-15 and 18-25.

2013] FRANCE 793

a. The Hunters’ Cases

Some reverse engineering is needed to understand the law

pertaining to compensation of victims of hunting accidents.

Victims must be compensated and will be compensated. If no

tortfeasor is identified, this will be done by a compensation fund.

If one hunter has been shooting, he may be held liable unless he

can prove that his shotgun was pointed in another direction, shot

another type of bullet, or that it was defective at the time. Liability

may then fall on other identified hunters or an application for

compensation may be filed to the compensation fund. If several

hunters may have caused the damage, they can be made liable

under one of the following doctrines: fault based liability (faute

commune, faute collective), if acting as a group and guilty of a

collective fault;

custody of the bullets when two guns shot

simultaneously and at least two bullets hit the victim (gerbe

unique);

or collective or joint custody of the bullets, also

triggering strict liability for the fact of a thing under article 1384

paragraph 1.

The case where one hunter is identified and the

others are not is not discussed in standard books. This sole

identified hunter would most probably be made fully liable, and

this would not be regarded inequitable since every hunter must by

law carry third party insurance. If this hunter is uninsured or

insolvent, recourse can be made to the compensation fund.

78. A Compensation Fund was created in 1951 to compensate victims of

automobile accidents where the tortfeasor cannot be identified. A law of 11 July

1966 extended the benefit of this Fund to victims of hunting accidents where the

tortfeasor cannot be identified.

79. Old line of cases starting in 1950. See Cass. Civ. 2, 2 April 1997, Bull.

II, no. 112; see P

HILIPPE LE TOURNEAU ET AL., DROIT DE LA RESPONSABILITÉ ET

DES CONTRATS

. RÉGIMES D’INDEMNISATION no. 1724 (Dalloz 2012-13).

80. Cass. Civ. 2, 5 February 1960, D. 1960, 365 (note H. Aberkane).

81. Cass. Civ. 2, 9 October 1957, JCP 1957, 10308 (note R. Savatier).

794 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

b. The DES Cases

A scenario quite similar to the hunters’ case can be found in a

recent Distilbène case.

A woman suffered vaginal cancer

allegedly caused by the fact that her own mother had been

administered diethylstilboestrol or DES during pregnancy. No

evidence was found of the details of the treatment: no prescription,

no medical record (the doctor who treated the mother had died, and

the record had disappeared). However, experts ascertained that the

claimant’s pathology was the consequence of her mother taking

DES while pregnant. In addition, the victim’s parents certified that

the mother had taken Distilbène at that time, a fact corroborated by

other witnesses. The victim sued UCB Pharma and Novartis, two

companies that had produced and marketed diethylstilboestrol in

France at the time, one under the name of Distilbène, and the other

one under the generic name. However, everyone used the name

Distilbène at the time, even to describe the generic DES. The

victim could not prove which of the two companies had produced

the substance her mother had taken. The Court of Cassation ruled

that each of the two defendants had to prove that its product had

not caused the damage, thereby creating a rebuttable presumption

of causation. The two producers happened to supply the same

commodity at the same time, rather than forming a group such as

sport people or hunters in the typical cases. The judgment is based

on the probability that one or the other of the two defendants

caused the damage. It seems that the Court of Cassation decision is

conducive of a 50-50 judgment, which may not be fair in the

circumstances. At the time of the facts, UCB Pharma’s market

share was 80 to 90%, leaving only 10 to 20% to Novartis.

82. Cass. Civ. 1, 24 September 2009, Bull. I, no. 187, D. 2010, 49 (note Ph.

Brun), RTDCiv 2010, 111 (obs. P. Jourdain); commented in Olivier Moréteau,

France in

EUROPEAN TORT LAW 2010, at 175, 185-87, nos. 29–37 (H. Koziol &

B.C. Steininger eds., de Gruyter 2011), largely reproduced (often verbatim) in

the present report.

2013] FRANCE 795

Solidarity is not to be excluded, but Novartis’s share should not

exceed 20%.

Interestingly, the case may fall under two different provisions

of the Principles of European Tort Law regarding causation. It may

be regarded as a situation of concurrent causes. According to

article 3:102, “In case of multiple activities, where each of them

alone would have caused the damage at the same time, each

activity is regarded as a cause of the victim’s damage.” This leads

to solidarity because we have multiple tortfeasors.

Article 3:103(2) (alternative causes) may be a better fit:

In case of multiple activities, where each of them alone

would have been sufficient to cause the damage, but it

remains uncertain which one in fact caused it, each activity

is regarded as a cause to the extent corresponding to the

likelihood that it may have caused the victim’s damage.

The European Group on Tort Law agreed that in cases of mass

torts the burden of proof should not be too heavy on the victim,

which is precisely what the Court of Cassation is doing when

creating a presumption of causation. The Court did not rule

whether liability is joint or solidary. Logically, alternative

causation excludes solidarity.

We do not know whether in the present case the victim’s

mother took medication manufactured by one producer only,

which may be one or the other (alternative causes). She may have

been treated with the product of one, and then with that of the

83. The case falls under art. 9:101(b) PETL:

(1) Liability is solidary where the whole or a distinct part of the damage

suffered by the victim is attributable to two or more persons. Liability

is solidary where:

. . .

b) one person’s independent behaviour or activity causes damage to the

victim and the same damage is also attributable to another person.

84. See

LE TOURNEAU ET AL., supra note 79, at no. 1732-2 (discussing the

case under alternative causation).

85. Art. 3:103 PETL, cmt. J. Spier, 49 no. 9.

86. Solidarity implies plurality of causes:

LE TOURNEAU ET AL., supra note

79, at no. 1736; see also art. 9:101(b) PETL.

796 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

other,

during the time of the pregnancy, in which case we have

concurrent causes. The good news is that both articles lead to the

same solution, though the “alternative causes” provision is more

conducive of proportional liability, which looks like the best

solution in the present case. Additional good news is that the

French Court of Cassation ruled in compliance with the Principles

of European Tort Law, even before the publication of the French

edition by the Société de législation comparée.

Another case decided by the same first Civil Chamber of the

Court of Cassation, on June 17, 2010,

confirms the willingness of

the Court to rely on presumptions of causation. A man had

contracted a nosocomial infection after having spent time in two

different hospitals but it was impossible to prove in which hospital

he had actually contracted the infection. The Court ruled that

“where there is evidence of a nosocomial infection but the latter

may have been contracted in several health institutions, each of

those whose liability is sought has to prove that it did not cause the

infection.” Though the facts are different, this is exactly what the

Court ruled in the Distilbène case, in a case of alternative causes

under the PETL.

c. Asbestos Cases

Similar to hunting accidents, one must proceed by reverse

analysis. Asbestos related damage is covered by the national health

system (Sécurité sociale), with 100% coverage where the patient is

recognized as suffering from long term condition (longue

maladie). A compensation fund has been created by the law of

December 23, 2000, so that no asbestos victim may be left without

87. Doctors sometimes shift to the generic form to save costs.

88. See supra note 1.

89. Cass. Civ. 1, 17 June 2010, Bull. I no. 137, D. 2010, 1625 (note I.

Gallmeister); RTDCiv 2010, 567 (obs. P. Jourdain), JCP 2010, no. 1015, p. 1917

(obs. C. Bloch).

90. Art. 3:103 PETL.

2013] FRANCE 797

compensation,

making proportional liability a moot question.

Specific legislation has been adopted since 1975,

and tort law

might apply, if necessary. An appellate court held an employer

liable for damage suffered by the employee’s spouse who suffered

from lung disease as a consequence of the asbestos on her

husband’s clothing: the employer was held to have retained

custody of the asbestos particles, which were not under the

employee’s control.

Employees may also sue employers on the

basis of fault, and the Court of Cassation insists that this is an

inexcusable fault (manquement à une obligation de sécurité de

résultat),

thus triggering additional compensation by the Sécurité

sociale.

2. Uncertainty of Causation and Loss of a Chance

French courts routinely apply the doctrine of loss of a chance

(perte d’une chance) whenever of the opinion that the defendant’s

activity deprived the victim of the opportunity of a favorable event

when the victim can do nothing to remedy the situation. Loss of a

chance is regarded as direct and certain damage. The French find it

convenient to shift from causation to damage.

Rather than

admitting that causation is partial or uncertain and follow a path

similar to articles 3:101 to 3:106 of the Principles of European Tort

Law (PETL), French courts regard loss of a chance as a head of

damage that will be fully compensated.

As unorthodox as things

may look from a theoretical point of view, it serves very pragmatic

91. Law no. 2000-1257 of 23 December 2000, art. 53, creating the Fonds

d’indemnisation des victimes de l’amiante (FIVA), financed by the Sécurité

sociale (75%) and the State (25%). See, for more detail, LE TOURNEAU ET AL.,

supra note 79, nos. 8490–8494.

92. LE TOURNEAU ET AL., supra note 79, at nos. 8486–8489.

93. CA Caen, 20 November 2001, JCP 2003, II, 10045 (note F.G. Trébulle).

94. Cass. Soc., 28 February 2002 (six cases), Bull. V, no. 81; RTDCiv

2002, 310 (obs. P. Jourdain).

95.

LE TOURNEAU ET AL., supra note 79, no. 8484.

96. V

INEY & JOURDAIN, supra note 35, at no. 370.

97. Moréteau, Causal Uncertainty and Proportional Liability in France,

supra note 77, at no. 2 .

798 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

purposes and has spread to other countries, both in the Romanist

and Germanic branches of the civil law family.

Loss of chance is frequently applied in cases of medical

malpractice. Causation is tricky in medical malpractice cases due

to scientific uncertainty. In a recent case,

a child was born in a

clinic with severe and multiple handicaps caused by a neurological

disorder. The parents sued the general practitioner and the

gynecologist who monitored the pregnancy. They also sued the

clinic where the mother delivered the child, together with the

midwife, an employee of the clinic. All defendants were found

liable in solidum for fault or negligence during the pregnancy and

at the time of childbirth. They had proved that, unknown to the

doctors at the time of the facts, the mother had a pre-existing

condition that, in the opinion of experts, had a decisive but

immeasurable influence on the handicap. However, the Court of

Cassation concluded that the defendants’ faults had in part caused

the damage, which justify solidary liability for loss of a chance by

the child to experience a lesser degree of cerebral infirmity,

“regardless of the degree of uncertainty of the first origin of the

handicap.” Based on the judgment of the lower court, the victims

were therefore to receive 75% compensation.

This is a typical example where to some extent, but to an

unknown extent, the loss is in the victim’s sphere, since the mother

had been suffering from a pre-existing condition. The point was

discussed at length by the European Group on Tort Law.

According to article 3:106 of the Principles of European Tort Law,

“The victim has to bear his loss to the extent corresponding to the

98. HELMUT KOZIOL, BASIC QUESTIONS OF TORT LAW FROM A GERMANIC

PERSPECTIVE 152-53 (Jan Sramek Verlag 2012).

99. Cass. Civ. 1, 28 January 2010, Bull. I, no. 19, D. 2010, 947 (note G.

Maitre); JCP 2010, no. 474 (note S. Hocquet-Berg), RTDCiv 2010, 330 (obs. P.

Jourdain); commented in Olivier Moréteau, France in E

UROPEAN TORT LAW

2010, at 175, 182-84, nos. 20–28 (H. Koziol & B.C. Steininger eds., de Gruyter

2011), largely reproduced (often verbatim) in the present text. See also

Moréteau, Causal Uncertainty and Proportional Liability in France, supra note

77, at nos. 23-25.

2013] FRANCE 799

likelihood that it may have been caused by an activity, occurrence

or other circumstance within his own sphere.” The Comments give

the example of a medical malpractice case with a victim falling

seriously ill, where “the illness may well have a ‘natural’ cause.

The doctor is liable to the extent his malpractice may have caused

the illness.”

100

Applying the doctrine of the loss of a chance to our case leads

to a similar result. Rather than lamenting on an unorthodox use of

loss of a chance,

101

one cannot but trust judges to make a

reasonable assessment as to the percentage of liability to be placed

on the defendant, when challenged with inconclusive evidence. In

such doubtful cases, proportional liability is no doubt to be

preferred to an “all-or-nothing” approach.

French law only allows for the compensation of a loss that is

actual and certain.

102

The compensation of uncertain future loss is

not permissible unless regarded as a loss of a chance.

103

French

doctrine has identified two types of future losses.

104

The loss is

virtual (préjudice virtuel) where it potentially exists as a

consequence of the blameworthy conduct: all the conditions of its

existence in the future already exist at the time of the facts, much

like an embryo contains all the elements necessary for the

development of a human life. The loss is hypothetical (préjudice

éventuel) where its existence depends on events that may or may

100. Art. 3:106 PETL, cmt. J. Spier, 58 no. 13.

101. See Jourdain, supra note 99.

102. The following paragraphs reproduce Moréteau, Causal Uncertainty and

Proportional Liability in France, supra note 77, no. 26-31.

103. The Court of Cassation accepts, in certain circumstances, that

compensation be made conditional: a patient diagnosed with HIV after a faulty

blood transfusion was awarded conditional damages, with payment subject to

medical evidence that he developed AIDS as a consequence of contamination:

Cass. Civ. 2, 20 July 1993, Bull. Civ. II, no. 274, RTDCiv 1994, 107 (obs. P.

Jourdain). Likewise, where the sale of an immovable is nullified partly as a

consequence of the notary’s fault, the notary is under no obligation to

compensate the buyer unless the latter proves that he failed to obtain restitution

of the price from the seller, which again, makes compensation conditional: Cass.

Civ. 1, 29 February 2000, Bull. Civ. I, no. 72, RTDCiv 2000, 576 (obs. P.

Jourdain).

104.

LE TOURNEAU ET AL., supra note 79, at no. 1414.

800 JOURNAL OF CIVIL LAW STUDIES [Vol. 6

not occur, much like the eventuality of a human being to come to

exist in case two persons of the opposite sex and able to procreate

have intimate intercourse. If a CEO is prevented from concluding a

promising contract because of an accident, the loss of benefit is

regarded as hypothetical, since no-one knows whether the contract

would have been concluded had the CEO not been prevented from

conducting the negotiation.

105

The line is thin however, and one

may want to decide that the CEO was presently and certainly

deprived of a favourable opportunity, which is the test to decide

whether a loss of a chance exists according to the most recent

jurisprudence.

106

A loss has to be virtual, not hypothetical, in order to be

compensated as a loss of a chance. This may happen in cases

where the occurrence of any future harm is uncertain, but also

where the scope of the future harm is uncertain.

In the example of the CEO who was prevented from

concluding a promising contract due to an accident, the occurrence

of future harm is uncertain: nobody can tell for sure that the deal

would have been concluded. French law applies a form of

proportional liability whenever judges find that the plaintiff was

presently and certainly deprived of a favourable opportunity. As

explained above, compensation will be apportioned in the sense

that it will be calculated as a share of the plaintiff’s various heads

of damage.

The compensation of loss of a chance in such situations has

caused no unreasonable surge in litigation. The fact that damages

are likely to be quite low may help keep floodgates sufficiently

proof. On the other hand, compensation of loss of a chance has

caused no known over-deterrence in the exercise of professional

activity such as legal or medical practice. In dubious cases, courts

105. Cass. Civ. 2, 12 June 1987, Bull. II, no. 128, RTDCiv 1988, 103 (obs. J.

Mestre).

106. See the discussion of Cass. Civ. 1, 28 January 2010, supra note 99, and

accompanying text above.

2013] FRANCE 801

are more than likely to describe the loss as hypothetical and reject

the claim, as eventually happened in the CEO case.

Cases in which harm has already been caused but the scope of

this harm in the future is unknown are common. All cases where a

victim suffers personal injury causing some form of disability

seem to fall into this category. The loss of vision in an eye, the

limitation in the use of an arm, or the loss of the ability to

procreate, is no doubt existing harm. However, the scope of the

loss for the future is unknown. The young person losing the

opportunity to procreate may elect for a lifestyle where this causes

no impediment or may be deprived of the chance of raising a small

or larger family. Such unknown harm can be described as virtual

since the condition exists at the time of the harm. It may be

repaired as a loss of a chance.

However, French courts are likely to indemnify as préjudice

d’agrément. This may cover the loss of a precise activity such as

the possibility to do sports or to play the violin, in situations where

the victim had already some practice.

107

However, Geneviève

Viney voiced concern that such a narrow understanding of the

préjudice d’agrément would be “elitist,”

108

expressing support for

the extension to the general agreement of a normal life, as

sometimes defined by the courts.

109

This is a form of non-

pecuniary damage, the assessment of which is of course

problematic, and will never be fully adequate in the parties’ eyes.

107. LE TOURNEAU ET AL., supra note 79, at no. 1586.

108. Geneviève Viney, Responsabilité civile (Chronique d’actualité), JCP

1995, I, 3853, at no. 22.

109. Cass. Crim. 2 June 1964, D. 1964, 629 (joies légitimes que l’on peut

attendre de l’existence); Cass. Crim. 5 March 1985, Bull. Crim., no. 105, D.

1986, 445 (note H. Groutel) (privation des agréments d’une vie normale).