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Report No. 85

France.-

In certain other

French Civil Code and the legislative frame work as to tortuous liability.- The legislative framework of delictual liability in France is comparatively straight forward and is detailed in just five articles of the Civil Code1. The traditional basis of liability is fault, understood as an intentional, reckless or negligent act2. In addition, there are some special cases where the plaintiff need not prove fault in order to establish liability3; where the defendant is answerable for the acts of certain classes of persons (e.g. parents for the acts of their children; masters for the acts of their servants); where the defendant has the use, direction and control of an animal; and where the defendant is the owner of a building which, through structural defects or lack of repair has caused damage by its collapse.

In these cases, the burden of proof is shifted: responsibility is presumed without proof of fault and can be rebutted only by defendant's proof of an absence of casual connection between the Act in question and the damage to plaintiff or, in some cases, other particular facts. More important is Article 1384, aline a 1 of the Code. According to one translation1 of the provision in question-

"A person is responsible not only for the damage caused by his own act, but also that which has been caused by the acts of things which are under his care."

[On est responsible non seculement du dommage que fon caus per son propre fait, mais encore de celui qui est cause par les fails des choses que Pon a Sous as garde]2.

The same provision has been thus3 translated in another book on French law:-

"A person is liable not only for the damage he causes by his own act but also for that which is caused by the acts of things which he has under his control."

1. Harding Fault in French Law of Delict, (July 1979), Vol. 28, Part 3 ICLQ 525, 526.

2. See Articles 1382 and 1383 of the Civil Code.

3. Civil Code, Articles 1384 to 1386.

4. Article 1384, para. 1, French Civil Code.

5. Harding French Law of Delicts, (1979 July), Vol. 28, Part 3 ICLQ 525.

6. Amos & Walton Introduction to French Law, (2nd Edn., 1963), pp. 226, 237 (Article 1384).

Judicial construction of Article 1384.- This provision has had interesting history. For most of the nineteenth century. French courts read this clause as being simply introductory to be the special cases dealt with by Articles 1385 and 1386 (damage by animals and collapsing structures). However, with the increasing industrialisation and mechanisation of society and the resultant enlarged risk of accidents which were often anonymous in character (i.e. where it was difficult to establish fault on the part of a particular person) and moreover a growing feeling that the law of delict should serve the ends of compensation as much as those of penalising wrongdoers Article 1384(1) came to be given a much wider interpretation.

"Thing" was interpreted as even something as diffuse as electricity or gas1, and liability was imposed, without proof of fault, for damage caused by such things (which were usually dangerous, such as motor vehicles and machines), provided that they were under defendant's "garde" or, more exactly, under "use direction and control"2-3.

1. See Encyclopaedic Dalloz, 4, Nos. 139, 141.

2. Ch. reum. 2, Dec. 1941 DC 1942, J. 25.

3. Harding Fault in French Law of Delict, (July 1979), Vol. 28, Part 3 ICLQ 525, 526.

Contributory negligence in France.- Contributory negligence is, however, recognised in France as a defence in certain cases by judicial decisions. The matter is too intricate to permit discussion in this brief study. But it may be noted that one writer1 has criticised this approach as "an introduction or fault into Article 1384(1), liability and therefore contrary both to the logic of the provisions interpretation and to the policy behind that interpretation"1.

1. Harding Fault in the French Law of Delict, (July 1979), ICLQ 525, 529.



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