French Tort Law

Sources and Evolution

French tort law (droit de la responsabilité civile) is codified in Articles 1240–1244 of the Civil Code (formerly Articles 1382–1386, renumbered by the 2016 Ordinance on the Law of Contracts). The 1804 Code established a threefold classification of civil liability: liability for personal fault (responsabilité du fait personnel, former Article 1382), liability for the acts of others (responsabilité du fait d’autrui, former Article 1384), and liability for things in one’s custody (responsabilité du fait des choses, former Article 1385). This structure survives in the modern code, though judicial interpretation has dramatically transformed its content.

The Ordonnance n° 2016-131 of 10 February 2016 renumbered the provisions without substantive amendment. The Government plans a comprehensive reform of tort law; the Avant-projet de réforme de la responsabilité civile (2017) proposes codifying the judge-made developments of the past century.

General Principle: Article 1240

Article 1240 CC (former 1382) establishes the general principle: “Any act whatsoever of a person which causes damage to another obliges the person at whose fault it occurred to compensate for it.” This open-ended clause permits any person who suffers damage caused by another’s fault to claim compensation, without limitation to specific protected interests. The provision requires three elements: fault (faute), damage (dommage), and causation (lien de causalité).

Fault (Faute)

Fault in French law comprises an objective element (conduct deviating from the standard of the reasonable person, the bon père de famille) and a subjective element (imputability to a person with capacity, bien que the arrêt Lemaître 1984 extended liability to mentally disabled persons). Fault may be intentional (dol, faute intentionnelle), involving a deliberate desire to cause harm, or unintentional (faute non-intentionnelle), comprising negligence (négligence) and imprudence (imprudence). The standard of care is objective and varies with the activity: a professional is judged by the standard of the ordinarily competent member of that profession.

A presumption of fault operates in certain relationships, such as between a principal and agent, and in certain factual circumstances. The Cour de cassation has created a general obligation of safety (obligation de sécurité) in certain contractual and non-contractual contexts.

Damage (Dommage)

Damage must be certain (certain), direct (direct), personal (personnel), and legitimate (légitime). French law distinguishes three categories: bodily injury (dommage corporel), material damage (dommage matériel), and moral damage (dommage moral). Bodily injury includes physical and psychological harm, as well as purely economic consequences such as lost income and medical expenses. Moral damage includes pain and suffering (pretium doloris), aesthetic harm, loss of amenity, and injury to reputation and affections. The principle of full compensation (réparation intégrale) requires that the victim be restored as precisely as possible to the pre-injury position, without profit and without shortfall.

Causation (Lien de Causalité)

French law traditionally applies the theory of equivalence of conditions (théorie de l’équivalence des conditions): every condition without which the damage would not have occurred is a legal cause. Some academic opinion and lower courts favour the theory of adequate causation (théorie de la causalité adéquate), limiting liability to the condition that normally produces damage of the kind suffered. The Cour de cassation has not definitively adopted either theory, deciding causation on a case-by-case basis. Loss of chance (perte de chance) is compensable where the victim lost the opportunity to obtain a benefit or avoid a loss.

Liability for the Acts of Others

Article 1242 CC (former 1384) establishes liability for the acts of persons for whom one is responsible. The provision creates presumptions of liability for:

• Parents for damage caused by their minor children with whom they cohabit. The parents may escape liability only by proving force majeure or a fault of the victim. The arrêt Bertrand (1997) confirmed the strict nature of parental liability.
• Employers and principals (commettants) for damage caused by their employees (préposés) in the exercise of their functions. Liability requires the employee to have acted within the scope of employment, though the arrêt Costedoat (2000) held that an employee acting within the scope of employment is immune from personal liability to third parties.
• Teachers and artisans for damage caused by their pupils and apprentices.

Liability for Things (Article 1242(1))

The landmark arrêt Jand’heur (Chambres réunies, 13 February 1930) established that the person having custody (garde) of a thing is strictly liable for damage caused by it, regardless of fault. The gardien is the person who exercises use, direction, and control (usage, direction et contrôle) over the thing. Liability applies to all things, whether dangerous or innocuous, movable or immovable. The gardien may be exonerated only by proving force majeure, an act of a third party constituting an unforeseeable and irresistible event, or the victim’s fault.

The concept of garde de la structure and garde du comportement divides custody where a product has been put into circulation: the manufacturer retains custody of the structure (internal composition), while the user has custody of the behaviour (operation).

Product Liability

Articles 1245–1245-17 CC implement the EU Product Liability Directive 85/374/EEC, replacing earlier judge-made liability based on Article 1242(1). Liability is strict for damage caused by a defective product. A product is defective when it does not provide the safety a person is entitled to expect. The manufacturer and importer are liable. Defences include the development risks defence (Article 1245-10) and compliance with mandatory regulations. The provisions are exclusive in the field of product liability (Article 1245-17), precluding concurrent claims based on other provisions.

Contractual and Tortious Liability

French law maintains the rule of non-cumul des responsabilités (non-cumul): a claimant cannot sue in tort where the parties are in a contractual relationship and the damage arises from non-performance of the contract. The rule prevents circumvention of contractual limitations and preserves the coherence of the law of obligations. Tort liability applies only in the absence of a valid contract between the parties or where the damage affects an interest independent of the contract (the option de responsabilité is excluded). The arrêt Besse (2005) confirmed that a third party to a contract may sue in tort for damage caused by non-performance without the limitation of the non-cumul rule.

Damages and Insurance

The principle of réparation intégrale governs all awards. Bodily injury is compensated through an itemised system of postes de préjudice, including temporary and permanent functional deficits, pain and suffering, aesthetic harm, loss of sexual function, and loss of amenities. Economic loss is compensated as actual loss (perte de revenus) and future loss (incidence professionnelle). Moral damage is compensated according to the circumstances.

Insurance plays a central role in French tort law. Compulsory motor vehicle liability insurance (loi Badinter of 5 July 1985) provides a compensation scheme for road traffic accidents, favouring victims with limited defences. The Fonds de Garantie des Victimes ensures compensation where the tortfeasor is unidentified or uninsured. Professional liability insurance is mandatory in many sectors.