Parental responsibility, minor child, liability regime, Court of Cassation, Levert ruling, Fullenwarth ruling, civil liability, parental authority
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Abstract
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Abstract
The regime of parental responsibility for damage caused by minor children is severe compared to other liability regimes, with a jurisprudential evolution leading to the Levert ruling.
Extract
[...] The Court's solution marks the abandonment of the condition of the child's fault to recognize the objective responsibility of the father and the mother but raises criticisms and questions regarding other regimes of liability (II). I. The abandonment of the fault condition of the child The Levert ruling is the culmination of a jurisprudential evolution that has gradually abandoned the notion of fault on the part of the minor child and which has led to an objective responsibility of the parents A. [...]
[...] This ruling has made it easier to compensate victims and has led to the objectification of the liability of fathers and mothers due to their minor child. However, critics within the doctrine have highlighted the severity of this solution and the fear that it will be applied to other regimes of liability of others. However, if the Court of Cassation seemed to have put an end to the use of paragraph 1 of article 1384 in the matter of the liability of parents due to their minor child, the return of this reference in the ruling of 17 February 2011 of the High Court suggests possible consequences on other regimes of liability of others. [...]
[...] However, what about cases of separated or divorced parents, or a child placed under the authority of a third party? The new Article 1242, paragraph 4 of the Civil Code has recently been the subject of a reversal of jurisprudence. In fact, since the Levert ruling, the Court of Cassation held the sole parent responsible by default, where the child's habitual residence was, despite the joint exercise of parental authority and the right of visitation and accommodation of the other parent. [...]
[...] It was therefore expected of the Levert ruling that it would settle the question and establish an objective liability of the parents. B. Towards an objectification of the liability of the parents Prior to this, the presumption of fault in surveillance and education stated in Article 1384, paragraph 4 of the Civil Code was necessary to engage the liability of the parents, giving it a subjective character. It was with the Bertrand ruling of 19 February 1997 that the Cour de cassation changed the nature of the presumption of liability of the parents. [...]
[...] According to the Court of Appeal, although Laurent had injured his classmate, his gesture was involuntary and clumsy, and could not constitute a fault, and that Arnaud had tacitly accepted the inherent risks of the game. The act committed by Laurent could not therefore engage his responsibility and there was no need to examine that of his parents. Arnaud's parents filed a cassation appeal, arguing that it is not necessary to recognize a fault by Laurent for his parents to be declared responsible. The question of law posed to the Court of Cassation was as follows: must a fault committed by the child be recognized beforehand to engage the responsibility of its parents? [...]
