| Injury
The damage can be material, bodily or moral:
– material damage : this is damage to property belonging to the victim. I s is the loss ( ” actual damage “) but also by the shortfall ( ” lucrum cessans “). .
– bodily injury : this is damage to people . It is an attack on the physical integrity of a person (aesthetic damage, injuries, disabilities …)
– moral damage : The moral damage results from an injury to feelings. It is the pain caused by the loss of a loved one or an attack on the honor, the reputation… The moral damage is an extra-patrimonial damage which is compensated by the ” pretium doloris “, the price of the pain .
The reparable damage
The compensable damage (also called damage) must be certain, direct and determined.
The certain nature of the damage
Damage already suffered and which can be proven is certain. This certainty can also extend to future consequences, to the extent that its realization is inevitable.
Any damage is not compensated.
The loss of a chance can be considered as reparable because it is indeed a current damage.
The direct nature of the damage
The damage must result directly from the act alleged against the person responsible
The determined nature of the damage
The damage must be capable of being assessed. This assessment is often made by expertise
Generator fact
The operative event is the material event which is at the origin of the liability. It can be based on fault or risk.
Fault
It is based on the provisions of article 1382: whoever commits a fault must repair the consequences. It also follows that the victim must prove the fault of the author of the damage.
The risk
This is liability based on no fault. Indeed, whoever engages in any activity or implements something considered dangerous must bear compensation for any resulting damage.
No-fault liability
Case law has developed strict liability. The courts are liable simply in the presence of damage. In reaction to the damage caused by the products they made the manufacturers and sellers responsible for the damage caused by these products simply by their putting on sale. It is the case law that has developed compensation for victims of accidents at work or traffic accidents.
The causal link
Civil liability presupposes a direct cause and effect link between the harmful event and the damage. The fact must have caused the damage.
The plurality of causes or victims
In the event of multiple causes having led to the damage, case law tends to retain only the main causes. On the other hand, in the event of multiple perpetrators of the damage, the victim can, in principle, seek compensation from any of the perpetrators, their liability being jointly and severally engaged.
Reasons for exemption
Force majeure, the act of a third party or the fault of the victim totally exonerates the author of the damage.
Force majeure is an external, unforeseeable and irresistible fact. The third party is a person foreign to the activity of the person in charge and whose act presents the same characteristics as the force majeure. The act of the victim if it has the same characteristics as force majeure also exonerates in full. There may, however, be a sharing of responsibility if there is both the fault of the victim and the person responsible.
Special regimes
They are strictly defined by article 1384 al 1 of the Civil Code: “We are responsible not only for the damage that we cause by our own act, but also that which is caused by the act of people for whom we must answer or things that we have in our care. ”
Responsibility for personal matters
It is based on a fault (voluntary or involuntary) and must lead to compensation for the damage to the victim. The fault consists of two elements:
- a material element which is an act of man resulting in an action or an abstention. If it is an action it can also have penal consequences (insults for example). Abstention is generally negligence (not having reported a broken down vehicle on a road, for example);
- A moral element is constituted by a free will and a sufficient conscience to understand the fault. An insane person may not be responsible for his actions.
Certain elements can lead to the disappearance of the fault: this is force majeure, the intervention of the public force, the behavior of the victim (self-defense, consent, acceptance of the risk) or the exercise of ‘a right (resigning is an act which may be prejudicial to the employer but which is a right).Vicarious Liability
Vicarious liability allows the victim to increase his chances of redress by engaging the liability of persons with greater solvency than that of the perpetrator. The Civil Code lists as follows:
- the responsibility of parents for the acts of their children,
- State responsibility for teachers,
- the responsibility of employers because of their employees (craftsmen because of their apprentices but also commissioners because of their employees).
Responsibility for the fact of things
The Liability things requires three conditions:
- the thing: the courts admit that all kinds of inanimate things come within the scope of article 1384 al. 1, whether the goods are movable or immovable, whether they present a defect or not. Animals and buildings in ruins are excluded, however, which are regulated by articles 1385 and 1386 of the Civil Code (but the consequences are identical);
- the intervention of the object in the damage caused directly or indirectly, whether it is in motion or not, and whether or not there has been contact with the victim;
- custody of the thing: in order for responsibility to be exercised, the custodian must be determined. The owner is presumed to be custodian but he can exonerate himself by proving that he had transferred custody to another. The notion of custody of the thing implies control, that is to say the power of use, control and direction.
When these three elements are combined, a presumption of responsibility is exercised on the custodian of the thing, a presumption from which he can be exonerated by invoking force majeure, the act of a third party or the fault of the victim.
Compensation for damage
The principle is that of full reparation , without loss or profit. Compensation may take the form of compensation in kind or compensation by equivalent.
Compensation in kind
The purpose of compensation in kind is to make the damage disappear. Compensation in kind is relatively rare.
Repair by equivalent
It consists of the award of damages to the victim. These are intended to compensate for the damage suffered.
The action
When the fact only engages the civil liability of its author, the action falls to the district court or high court (depending on the amount).
When the civil liability of the personal act is based on a criminal offense (theft, fraud, etc.) public action is brought by the Public Ministry for the purpose of repression. The civil action can then be brought before a criminal court (simple police court, criminal court, assize court) or before the civil court. |
