LexInter | August 9, 2018 | 0 Comments


Contractual liability is, along with tort liability , or more generally extracontractual liability , one of the two aspects of civil liability .

The 1804 Code does not expressly refer to “contractual liability”, it provides for damages owed by the debtor to the creditor in the event of non-performance of the contract, which are provided for in Section IV: Damages resulting from non-performance of the obligation . These damages are conceived as an effect of the obligation contracted by the defaulting debtor. Damages are the form taken by the contractual obligation when the debtor does not perform voluntarily and enforcement or in kind cannot be obtained.

Contractual liability is incurred in the event of poor performance or total or partial non-performance of the obligations arising from a contract . This poor performance or this non-performance may relate to obligations to do or not to do. Damage caused by resolution is also a contractual liability.

The principles of contractual liability have been derived by case law on the basis of article 1147 of the Civil Code, article 1147 of the Civil Code which provides that:

The debtor is condemned, if necessary, to the payment of damages either because of the non-performance of the obligation, or because of the delay in the performance, whenever he does not justify that the non-performance arises from a foreign cause which cannot be attributed to it, although there is no bad faith on its part.

In French law, unlike common law , the responsibility for the preparatory phase of the contract comes under extra-contractual responsibility.

Contractual liability refers to what some prefer to call “contractual failure”. The expression “contractual responsibility” has been criticized (see Philippe Letourneau, Law of Responsibility and Contracts, n. 6 p. 6) and qualified as a mythical expression, like the theory of the autonomy of the will and or consensualism. The concept of contractual liability has been criticized for falsely equating non-performance with fault and its consequences for damage, while the contractual default regime is intended to allow the initial will of the parties to be respected over time and to maintain the balance of their reciprocal services. The contract does

In common law, “contractual liability” falls under contract law while “tort liability” falls under the law of wrongs (tort law).


Contractual liability is retained if there is a contract between the parties, and if this contract is validly concluded. In non-contractual situations, liability is tort liability .

In the event of cancellation of the contract, the breach of commitments is a tort liability .

Area of ​​contractual liability and contractual obligations

Liability is contractual if the damage results from a breach of an obligation arising from the contract.

Some decisions have a very broad conception of the required link with the contract and admit contractual liability even if the contract was only the occasion of the damage. Other decisions recognize the contractual nature of the liability only if the execution of the contract must have put in a situation which makes the damage foreseeable by exposing them to a risk.

Regarding the liability of professionals, it is analyzed from the angle of tort liability for breaches of the duty to advise. Liability only becomes contractual when they have entered into contractual obligations towards their client that are distinct from those imposed on them by their status (see for example in matters of notarial liability Cass. Civ. 1, April 12, 2005 )

The abuse of a contractual right falls under the tort or quasi-tort of its author (see for example for the rupture of established commercial relations.


The three conditions for initiating contractual civil liability are fault , damage and the causal link between the two ( Civ. L era, November 18, 1997 ).

Contractual liability at its source in the contractual non-performance which gives right to compensation.

A contractual fault does not necessarily imply by itself the existence of a damage in relation of cause and effect with this Cass fault  . civ. November 18, 1997 . Damages can only be awarded if the judge, at the time of ruling, finds that damage has resulted from the contractual fault. Cass. civ. 3, December 3, 2003

Liability results from damage caused by non-performance, without requiring the debtor to fulfill his obligation.  Mixed ch. July 6, 2007

The breach of contract is the result of a delay in performance or non-performance of an obligation under the contract, resulting either from the nature of the contract (such as the obligation to deliver the seller) of the implicit obligations (such whether case law has released them, such as the obligation to advise or  the obligation of safety ) or from the stipulations provided for in the contract. This non-performance gives the obligee the right to compensation in order to repair his damage.

There is no liability when the non-performance is the product of exceptional circumstances constituting force majeure.

Non-performance or improper performance of a contractual obligation

Non- performance or poor performance is a function of contractual obligations as they result from contractual stipulations or as they result from the contract according to the rules of the civil code and case law.

The obligee must establish the faulty nature of this non-performance or bad obligation as well as the causal link.

Article 1150 limits the indemnification of the creditor ” 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 executed “.

In accordance with article 1151 of the civil code, “Even in the event that the non-performance of the agreement results from the fraud of the debtor, the damages must not include with regard to the loss suffered by the creditor and the gain of which he was deprived, that which is an immediate and direct consequence of the non-execution of the convention “.

Fault in extracontractual situations gives rise to tort liability .

Repair of the damage


Considering article 1147 of the civil code and the principle of full compensation for damage without loss or profit v. eg. Cass. civ. 2 May 28, 2009




Sanctions in the event of non-fulfillment of the various obligations are provided for in Articles 1146 to 1164 of the Civil Code.

When the contractual obligation can still be performed, the creditor can ask that the debtor be forced to this performance: this is the forced performance . He can also ask the judge for execution by a third party at the expense of the debtor.

When the contractual obligation can no longer be performed, there is compensation by equivalent in the form of damages , ordered by the judge. The amount of these damages will be assessed by the trial judge with regard to the principle of full compensation, and will be assessed on the day of the final judgment.

Non-performance and prejudice

Failure to perform an obligation to refrain from doing

anyone who contravenes a contractual obligation not to do owes damages by the sole fact of the contravention Cass. civ. 1 October 14, 2010

Non-performance of an obligation to do

having held, for reasons not criticized, that the non-performance of the contract had been acquired and had caused damage to the company Deli K star, the court of appeal precisely deduced that it was necessary to award damages – interests  Cass. Mixed Ch. July 6, 2007

A contractual fault does not necessarily imply by itself the existence of a damage in relation of cause and effect with this Cass fault . civ. 2, September 2008
The clauses relating to contractual liability


The parties agree that in the event of non-performance or improper performance of the obligation, the debtor will not be liable.

Nullity of exemption clauses for gross negligence

On the visa of articles 6 and 1382 of the Civil Code, the Court of Cassation decided that it is not allowed by means of an insurance contract or any other pact to stipulate in advance the immunity of one’s faults. heavy; [….] public order is opposed to the validity of such a pact  Cass.civ. March 15, 1876

Nullity of exemption clauses for attacks on the physical integrity of others

They cannot also be opposed when the damage consists of an attack on the physical integrity of another.

Nullity of exemption clauses in contracts with consumers

A professional cannot impose them on a consumer.

Limitation of liability clauses

The parties agree, through the limitation of liability clauses, to set limits on the conditions for bringing the liability into play, or even on the consequences of this liability. These clauses are deemed to be unfair in the event of gross or willful misconduct on the part of the debtor, or between professionals and consumers.

The  penalty clause

To avoid having to bring the assessment of the compensation before a judge, the parties can advance and fix it in the contract by a penalty clause liquidated damages clause in English or American law).

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