LexInter | November 8, 2006 | 0 Comments


The Civil Code institutionalized civil liability, which is a major innovation of the Napoleonic Code. The law watches over the citizens and anyone who suffers from harm will always find a “remedy”.


Civil liability law

In the Civil Code of 1804 the common law of civil liability is based on fault .

The right of the French civil liability has become essentially a judicial legislation, thus constantly changing.

French civil law is still based on the distinction between contractual liability and tort liability.

·         Responsibility is  contractual liability when it sanctions the parties for breach of an obligation arising from a contract.
·         Responsibility is  a tort or tort in all other cases.

Civil liability as conceived by the drafters of the Civil Code was an individual responsibility, intended to discourage unethical behavior. Like the criminal sanction, the civil reparation sentence aims to punish reprehensible acts.

Economic changes and in particular the industrial revolution will call into question the basis and the nature of responsibility (see ECONOMY AND RESPONSIBILITY )

Accidents, whether at work or outside work, caused by machinery, whether machines in the factory or vehicles on the roads, demonstrate that the individual is exposed to the risks of industrial society, and some like Saleilles defend civil liability based on the theory of risk. The risks of an activity must be borne by those who benefit from it. Liability insurance, but also social insurance, are two forms of pooling these risks which separate compensation from the existence of a fault and which ensure pooling of risks.

Another basis is proposed, that of the guarantee, the individual having to be guaranteed in his safety and compensated if one infringes his right to safety.

It has long been argued that the liability regime as developed by case law and by the legislature was based on fault or risk. The development by case law, but also by the legislator, of the obligation of safety (in case law the obligation of safety of result), seems on the contrary to demonstrate the growing importance of the basis of guaranteed liability.

The responsibility for abnormal neighborhood disturbance is a strict liability.



A distinction is made between intentional fault and simple fault, this distinction corresponding to that of misdemeanor and quasi-delict. The intentional fault traditionally refers to the fault committed with the will to cause the damage.

Articles 1382 and 1383 are sometimes presented as implicitly referring to the distinction between misdemeanors and quasi-delicts. The recklessness and negligence of section 1383 would correspond in this analysis to unintentional faults. The Court of Cassation does not follow this distinction, and only applies article 1382 in the presence of unintentional faults (see Cass. Civ. 2, April 2, 1997)

The tort liability  ( extracontractual ) entails the obligation for the author of a damaging act to fully repair the damage he has caused. The victim will thus obtain damages for the material and moral damage he has suffered.

Extra-contractual liability requires

– a fact of responsibility generator

– a pity

– a causal link between the damage and the harmful event

Extra-contractual liability can be based on three sources of liability

– personal fault

– the fact of things

– the act of others, liability being incurred as a result of damage caused by another person who may be

– an employee (responsibility due to the attendants)

– a child (responsibility of father and mother, teachers

– a person for whom we must answer.

The damage can be material, bodily (attack on the physical integrity of the body) or moral (pain for example)




Misdemeanors and quasi-misdemeanors

The Civil Code of 1804 gives priority to the need for compensation for damage by attaching the same consequences to imprudence and negligence. This repair requirement applies regardless of the seriousness of the fault, be it very slight, slight, serious or intentional.

Proof of fault and presumptions

The victim must provide proof of fault. However, is the subject of presumptions, intended in particular to favor the victims of accidents. These presumptions are cases of vicarious liability or liability for the acts provided for in Articles 1384, 1385 and 1386.

Anonymous damage

The development of machinery has led to the increase in damage caused by things (work accidents, automobile accidents, etc.). Liability for the act of things has shifted towards repairing anonymous damage, towards liability based on risk.


Tort and quasi-tort liability:

It is about responsibility where the obligations result from legal facts. Commitments arise involuntarily without agreement

Offenses and quasi-offenses : Chapter II

Of quasi-contracts arising from voluntary facts

Contractual liability

It is the non-performance or improper performance of obligations resulting from legal acts where the commitments are born voluntarily.

The basis of this responsibility is article 1147 of the Civil Code.


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