Concept of reparable damage
The concept of reparable damage has expanded considerably with a multiplication of varieties and a diversification of damage. Reparable harm has proliferated.
Originally (see Aubry and Rau, Cours de droit civil français, t.IV, 4th ed. Paris, 1871, §445) the damage was the loss and the lack of gain that the offense caused. It also included “in the case of a criminal law offense, the moral damage that the offense caused the injured person to experience, either by disturbing him in his personal safety or in the enjoyment of his patrimony, or injuring her in legitimate ailments.
The proliferation of types of repairable damage is due on the one hand to the increased attention to individual situations and on the other hand to the multiplication of goods (see Philippe Letourneau, Droit de la responsibility et des contracts, Dalloz 2012 n.1500) . Taking into account the needs but also the desires of individuals transforms failures in relation to expectations to a prejudice calling for a responsible. The logic of the market leads to what “everything is worth so much” (Carbonnier, Civil Law, T. III, Goods, 18th ed. PUF, 1998, n ° 9). Liability becomes a commodity traded in the insurance market, damages become property.
Presentation of reparable damages
A presentation of damages distinguishes pecuniary damage (or material, or economic, or pecuniary) and extra-pecuniary damage (or not pecuniary, or extra-pecuniary or moral).
Another presentation separates material damage, moral damage and bodily injury. Bodily injury is defined as the result of material damage and moral damage caused by the attack on the life or physical integrity of the victim.
Varieties of reparable harm
Since 1804 and more particularly for a century, the reparable damages have multiplied. The varieties of reparable harm have proliferated. In addition, in certain matters, damage is no longer a condition of civil liability. This is the case in matters of invasion of privacy or of the presumption of innocence .
The reparable damage can be material when there has been damage to property or to the physical integrity of a person.
The damage can also be moral.
The harm must be certain, but it may be future. The possible damage cannot be repaired
The harm must be direct.
Case law accepts compensation for the loss of an opportunity which is direct and certain.
Reparation can only be granted to the victim or to a person subrogated in his rights.
When the person who was the victim of the damage has died, his heirs can claim compensation for the damage on behalf of the deceased by the action of succession. They also have a personal action for compensation for their own damage, the indirect damage.
The principle is full compensation for damage.
Pecuniary damage is damage to the victim’s patrimony. It results either from non-pecuniary damage or from material damage.
The financial loss resulting from material damage consists of the loss experienced and the lost gain (article 1149 of the Civil Code). Each of these elements of the damage meets its assessment rules.
The loss experienced
The loss experienced is damnum emergens. The loss experienced is the loss suffered by the victim of a tort or quasi-tort and the loss suffered by the creditor as a result of the non-performance of a contractual obligation.
The missed gain
The lost gain is the lucrum cessans, the certainty of a gain which has disappeared as a result of the harmful event. It is provided for in article 1149 of the Civil Code in the case of a contractual non-performance but the same idea applies to tort liability.
The missed profit is a certain loss of profit, the gain was due because of the contracted obligation, while the loss of chance is a probable loss of profit. The loss of profit cannot be accepted as a head of damage if it was hypothetical (Cass. Civ. 1, October 22, 1996)
Indemnification in contractual liability
Article 1149 The damages owed to the creditor are, in general, the loss he has made and the gain of which he has been deprived, with the exceptions and modifications below.
Article 1150 : The debtor is only liable for damages which have been foreseen or which could have been foreseen during the contract, when it is not by his fraud that the obligation is not performed.