CHILD RESPONSIBILITY AND DISCERNMENT
LexInter | March 9, 2008 | 0 Comments

CHILD RESPONSIBILITY AND DISCERNMENT

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, ruling in a PLENARY ASSEMBLY, delivered the following judgment: On the appeal brought by Mr. Raymond FULLENWARTH, residing at 3, rue des Provinces in Stiring-Wendel (57660), acting in his capacity as legal and civil representative responsible for his minor son FULLENWARTH Pascal, born October 16, 1968 and living at the same address, in cassation of a judgment rendered on September 25, 1979 by the Metz Court of Appeal (Civil Chamber), in favor of Mr. Guillaume FELTEN, residing at 180, rue Stéphanie in Schoeneck (57350), Stiring-Wendel, ex officio legal representative and civilly liable for his son FELTEN David, born January 28, 1970 in Forbach, living at the same address, defendant at the cassation. Mr. Fullenwarth appealed in cassation against a judgment of the Metz Court of Appeal dated September 25, 1979. The First President of the Court of Cassation, noting that the appeal raises the question of whether it is possible to impute to a child, author of involuntary injuries, full responsibility for the accident, without investigating whether this child had sufficient discernment to be the object of such an imputation; that it is a question of principle and that the judges on the merits differ on the solution likely to be brought to this problem, by order of March 17, 1983, referred the case and the parties to the Plenary Assembly . without investigating whether this child had sufficient discernment to be the object of such an imputation; that it is a question of principle and that the judges on the merits differ on the solution likely to be brought to this problem, by order of March 17, 1983, referred the case and the parties to the Plenary Assembly . without investigating whether this child had sufficient discernment to be the object of such an imputation; that it is a question of principle and that the judges on the merits differ on the solution likely to be brought to this problem, by order of March 17, 1983, referred the case and the parties to the Plenary Assembly .
Mr. Fullenwarth invokes, before this assembly, the following single plea of ​​cassation: This plea accuses the infirmary judgment under appeal of having declared Mr. FULLENWARTH, exhibiting, fully responsible, in his capacity as civilly responsible for his son Pascal, for the consequences of the accident caused on August 4, 1975 to David FELTEN, On the grounds that by throwing an arrow in the direction of his comrade while he had thus little before already slightly injured in the chest, the child FULLENWARTH committed a an objectively wrongful act giving rise to the application of the presumption of article 1384-4 ° of the Civil Code with regard to his civilly liable father, and that witnesses foreign to the parties do not provide any certain element of assessment on the circumstances of theaccident and whether it occurred during the game or after it while the FELTEN child was going home, unaware of the exact course of the facts the presumption of the law must produce its full effect, FULLENWARTH must therefore be declared fully responsible for the consequences of the wrongful act of his minor son.
While the Court of Appeal which found that Pascal FULLENWARTH was 7 years old at the time of the accident, limiting itself to declaring him responsible, as well as his father on the basis of article 1384 paragraph 4 of the Civil Code, to declare that “the FULLENWARTH child committed an objectively wrongful act”, without investigating whether Pascal FULLENWARTH presented sufficient discernment for the act to be attributed to him at fault, tainted his decision with a lack of legal basis and thus violated articles 1382 and 1384 paragraph 4 of the Civil Code. This plea was formulated in a brief filed with the Secretariat-Registry of the Court of Cassation by the professional civil society Lyon-Caen, Fabiani and Liard, lawyer for Mr. Fullenwarth. Whereupon, THE COURT, in open court today, ruling in a Plenary Assembly, On the report of Councilor Fédou, the observations of the professional civil society Lyon-Caen, Fabiani and Liard, lawyer of Mr. Fullenwarth, the conclusions of Mr. Cabannes, First Advocate General, and after having deliberated immediately in the Chamber of the council, Default against Mr. Felten; On the sole means:
Whereas, according to the judgment under appeal (Metz, September 25, 1979), that on August 4, 1975, Pascal Fullenwarth, then aged 7, fired an arrow with a bow which he had made in the direction of his comrade David Felten and the ‘éborgna; that Mr. Guillaume Felten, father of the victim, sued Mr. Raymond Fullenwarth in damages, in his capacity as civilly responsible for his son Pascal on the basis of Article 1384 paragraph 4 of the Civil Code; Whereas Mr. Raymond Fullenwarth criticizes the judgment for having declared him entirely responsible for the consequences of the accident, then, according to the means, that the Court of Appeal did not investigate whether Pascal Fullenwarth presented sufficient judgment so that the act could be attributed to her at fault, that she tainted her decision to a lack of legal basis and thus violated articles 1382 and 1384 paragraph 4 of the Civil Code; But given that, in order for the responsibility of the father and mother of a minor living with them to be presumed, on the basis of Article 1384 paragraph 4 of the Civil Code, it is sufficient that the latter has committed an act which is the direct cause of the damage claimed by the victim; that by this ground of pure right, substituted for that criticized by the means, judgment is legally justified;
FOR THESE REASONS: DISMISSES the appeal against the judgment rendered on September 25, 1979 by the Metz Court of Appeal;

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