French Tort Law (comparative approach)

Class 1

French broader approach to tort liability. Although for the purposes of convenience, the best article for this course would be delictuel liability or civil liability. Although the word tort is used every day in French, there is no concept in civil law. The idea of tort liability should arise from an exhaustive list of specific acts, which can be regarded as tort is alien to French law, which instead has opted, for what we call more generalized approach to civil liability, based on the notion of fault. Historically French law departed form the Roman law (delicts), modeled on criminal law which offered as in todays English law a list of nominate wrongs as possible causes of action. French concept of faute taken from the Latin word (Culpa) is deeply rooted in natural law and religious doctrine. Both of which provided the basic material on which French jurists relied in order to fashion the law in this area. The complementary general clauses of articles 1382 and 1383 of are striking illustrations of the universality both in terms and spirits, which until the present day characterizes the French concept of civil liability. Rene David he died in 1990 and he had this translation of article 1382; any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to take good of damage. Article 1383, everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence. Therefore obvious differences exist between English and continental law, in the field of the law of tort. The English approach to the subject bears the stamp of the forms of action which existed in former times. Specific torts were sanctioned then in a Varity of action importing rules which were different in each procedural form. It is still most difficult to single out the general principle embracing all cases where a tortuous liability arises or one governing the consequences of the liability in tort. In some cases tortuous liability is based on the fault committed by the defendant, but in other cases mere interference with a right of the plaintiff is enough to constitute a tort. In some cases physical damage only will be compensated but in other cases economic laws maybe recoverable. The law of torts in England, a medley of cases where damages may be obtained on a foundation other than breach of contract. Legal sciences has renounced the task of coordinating, the whereas torts into a system there are in English law a number of nominate tort, but there is no one general principle throughout the law of tort. The

picture obviously is totally different on the French law. No specific torts are to be found but the general principle stated by 1382. Any fault committed by a person gives rise to his responsibility if damage occurs there from. A second principle was implicit in the civil code of France. Except perhaps in the case of the employer, whose liability was irrefutably engaged, if damage was cause by a fault of his employee, there was no place in civil code for a tortuous liability independent of the fault of the individual, this principle has occurred to be true today. French court have laid down new principle, tortuous liability is incurred nowadays independently of any fault if the damage has been inflicted on B by a think which is under As custody. In all cases the tortuous liability supposes that some damage has been suffered by the plaintiff. In that some chain of causation can be established between the faulty conduct or the think under the defendants control and the damage suffered by the plaintiff. French law is in the matter of tort, highly systematic in diversion of English law. However despite of this high degree of systematization many questions arise to doubts in French law, as well as in English law. The law of tort is the field of the law which brings a huge amount of business both for the practitioners and to the court. This is the case because fax (existence of fault and amount of damage) have to be established and because the interpretation of the legal formula is in many cases in matter of difficulty which is partly due to the circumstance that this branch of the law has been revised addresticly in France as in England, already passed 200 hundred or 100 years. This change has been brought about new problems arising, what we call industrial revolution. The intervention of parliament has been exceptional and this is extremely complicated and important branch of the law is still covered by only five articles of civil code and note that for them are very short and unchanged since 1804. In fact for this reason it is not surprising, to find a developed complex body of case law, exists in this area. Since the unjust improveshimin, suffered by the person is not due to anybodys fault, no more argument demands that the damage should be made goods by a particular person. Whether liability of tort is the proper solution?, or whether it would be better to have the whole community or some fraction of it undertake to make reparation for the damage to a system of social insurance or social security. This approach has been adopted in a number of cases, the most important of which is being workmans compensation, the responsibility of the employer is still retained if he has been guilty of what we call of an inexcusable fault, but if not the jury of making good of damage devolves to the bodies which administer social

security. Similar system has been adopted in France to deal with road traffic accident, since 1985, (Robert Badinter). Amongst the principal of civil law systems this level of generality apparent within the French civil code is rather uncommon, even paragraph 1823 of the German civil code, and contains some degree of generality. This categorization approach to tort law prevalent in legal systems such as that in England, presents the advantage of reducing judicial discretion as well as highlighting the distinctive aspects of each type of wrong by treating them separately. However the main drawback to having a finite list of nominate torts is the existence of gaps within the law that this engenders with the adverse and just consequence that potential claimants may be denied. The distinction between common law tort model and conceptual model of civil law systems such as in France, although true has been somehow exaggerated. In fact separate from the general principle based on fault, found in article 1382 since its enactments the civil code has also provided for specific regimes, which are generally strict liability meaning where fault does not need to be proved these are liabilities for damages cause by things article 1384 line A paragraph. Liabilities for damages caused by the actions for persons pother than the defendant, that is article 1384, then is article 1385 and by dangerous building article 1386. Today the law relating to civil wrongs is even more fragmented with a multiplication of special causes of action in a variety of areas as road traffic accidents and defective products; it is article 1386/1. In very famous English case Donoghue v. Stevenson 1932 Ac 562. In this case Lord Atkins famous formulation of what is commonly known as a neighbor principle illustrates a very well a need of generalization. In English law there must be and is some general relations giving right to a duty of care of which particular cases found in books are but instances, the liability for negligence whether you style it such or treated as in other systems as Culpa is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. In French law contractual and extra contractual liability, developed in such way that contractual claims were governed by certain special rules set against the general tort liability clause of article 1382. In this respect what we call the rule of non cumul, none overlapping. None overlapping is preventing plaintiffs from the possibility of bringing their case concurrently in tort contract; when their claim fell under the ambit of contract law, demonstrated further the specificity a French contract law against the

generality of tort based liability. When looking more closely at the way in which French judges have dealt claims in tort it would be apparent that the need to avoid extending the scope of civil liability to an unlimited extend has also been present in French law. Indeed in order to achieve desirable result, French judges in many occasions used their discretion to interpret restrictively these elastic concepts of fault damage and causation. Thereby dismissing claims which for policy reasons did not have created unjust results or would have opened the gates to a flood of new claims. Thats even though French judges do not admit to it openly in their judgment.