LexInter | November 21, 2006 | 0 Comments


Liability: from the Latin spondeo  by which in Rome the debtor was solemnly bound in the contract known as verbis

Liability and constitutional law

if “in certain matters, the legislator has instituted compensation regimes which partially derogate [from the principle of equality],” French law does not include, in any matter, a regime exempting from all compensation damages resulting from civil faults attributable to natural or legal persons of private law, whatever the seriousness of these faults “Constitutional Council January 17, 1989

The responsibility of the administration is a constitutional requirement, which prohibits the very creation by law of regimes of irresponsibility “whether it is for the legislator, while respecting the right to strike and the right to organize as well as other rights and freedoms which also have constitutional value, to define the conditions for exercising the right to strike and the right to organize and, thus, to precisely draw the line separating lawful acts and behavior from wrongful acts and behavior, so that the exercise of these rights cannot be hindered by abusive legal actions, if it also belongs to it, where appropriate, d ” develop an appropriate special compensation regime reconciling the interests involved, it cannot, on the other hand, even to achieve its objectives, deny in principle the right of victims of wrongdoing, who can moreover be employees, staff representatives or trade unions, to equality before the law and before public officees ( Cons. const. Decision of 22 Oct. 1982 Law relating to the development of staff representative institutions )

under the terms of article 4 of the Declaration of 1789: ” Liberty consists in being able to do anything that does not harm others”; that it follows from these provisions that in principle, any fact any of the man which causes to others a damage obliges that by the fault of which it arrived to repair it; that the ability to act responsibly implements this constitutional requirement; that, however, the latter does not prevent the legislator from adjusting, for reasons of general interest, the conditions under which liabilitycan be engaged; that it can thus, for such a reason, make exclusions or limitations to this principle, provided that this does not result in a disproportionate infringement of the rights of victims of wrongdoing as well as of the right to a judicial remedy number of staff resulting from article 16 of the Declaration of 1789  Constitutional Council June 11, 2010



The legal responsibility is the obligation made to the author of a shame to face justice and to bear the civil, criminal, administrative, disciplinary or other.

Legal responsibility entails the obligation to repair the damage suffered by the victim of a wrongful act whose legitimate interest has been unjustly injured by an act contrary to the legal order, an illegal act. 

Liability is not only intended for redress or compensation, but also for retribution and constitutes private punishment. It also has a function of ceasing the wrongful act and plays an important role in prevention.


Liability law is based on the rules concerning the event giving rise to liability, fault and damage.

Legal responsibility is different from legal responsibilities, such as moral, social or political responsibility.

Civil liability arises when one person causes damage to another. The basis of responsibility is the obligation on everyone to answer for their actions. When liability results from an offense, liability is criminal liability.

The author of the damage becomes the debtor of the compensation, and the victim a creditor thereof.

Civil liability law

The liability law into French law combines two sources of obligations , the tort and contractual liability . Liability is distinguished from other sources of obligations by its compensatory function.

The tort

Extra-contractual liability is an obligation on the part of the author of damage caused to others to repair it. It gives rise to the responsibility of the person to whom it is attributable an obligation of reparation for the benefit of the victim.

The law of liability finds its origin in the Civil Code. The Article 1382 contains the general principle of fault liability  , which is the basis of tort. The article 1384 provides for the liability of things. The Section 1385 contains the principle of liability for third parties, regarding the attendants.

It can be noted that the responsibility in the Civil Code falls under Title III concerning ” contracts and conventional obligations ” which is part of Book III devoted to “the different ways in which one acquires property “.

Liability has spread, with the development of machinery and with the development of industrial production, with the concept of strict liability . Liability for defective products which falls under liability for fact has become a fundamental aspect of liability.

Extra-contractual liability ensures the protection of the rights and interests of agents against the activity of third parties. It is a question of reconciling two contradictory objectives, the security of persons and their freedom to act.

The contractual liability

In France, liability law includes contractual liability resulting from delay in performance or non-performance of contractual obligations.



French law distinguishes between tort liability and contractual liability in matters of civil liability.

The tort result of a legal fact, as the contractual liability resulting from a transaction.

Liability for fault requires a causal link between fault and damage. In the event of strict liability there must be an abnormal and specific damage .

The Civil Code contains the principles of liability. Liability law has developed in a jurisprudential way, with numerous legislative interventions. It has greatly evolved under the influence of economic changes with the development of an economy of responsibility.

In addition, many special liability regimes have developed.

Liability can be civil, it can be criminal, criminal liability which only targeted natural persons is now extended to legal persons (article L 121-2 of the Criminal Code). Persons governed by public law, with the exception of the state, are criminally liable like legal persons governed by private law.

Civil liability is either extracontractual or contractual. Extra-contractual liability is the extension of tort liability with quasi-tort. Contractual liability includes quasi-contractual liability.

Liability action requires proof of the damage , the basis of liability ( fault , product defect , etc.) and the causal link .

The Praetorian Rules of Liability

These are in particular the cases of liability attached to articles 1382 to 1384 of the Civil Code, the definition of the various obligations which supplement contracts (security, information or vigilance obligations), contractual liability for the act of others, “pre-contractual” liability or the recognition, against the letter of Article 1142 of the Civil Code, of the possibility of obtaining compensation in kind in contractual matters.



Disclaimer of Liability


Administrative responsibility

R esponsibility administrative law matter of administrative law. Damage caused by an act of violence and irregular control is a matter of judicial competence, the judicial courts being the guardians of private property.

Criminal liability

Article 221-7 of the penal code: fault of having caused death or incapacity by recklessness, negligence or breach of a rule of safety and prudence.

Article 225-4 of the penal code: discrimination

Administrative responsibility

Administrative responsibility is the obligation incumbent on a legal person governed by public law, as well as that of a person governed by private law invested with a public service mission, to repair the damage it has caused.


The development of liability has been accompanied by the development of insurance, guaranteeing the payment of compensation to the victim, at the same time that this development has influenced the law of liability.


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