Extract
[...] This implies a certain objective predictability. Thus, for example, the criminal chamber of the Court of Cassation, on June dismissed the responsibility of a child who had entered a vehicle washing machine, by overturning the decision of the Court of Appeal which had not sufficiently characterized the link of causality between the behavior of the victim and the realization of the damage. [...]
[...] The Court of Cassation had to determine whether the 9-year-old child had committed a fault by handling the device found on the beach. The Court of Cassation responded negatively, stating that the child, not having been warned by his companion against the danger, could legitimately think that no explosion could occur, as the firework had already been fired. Thus, the Court of Cassation rejects the appeal. The absence of the child's fault: an in abstracto assessment of his behavior The Court of Cassation demonstrates the absence of fault on the part of the child, through an in abstracto assessment of his behavior and by rejecting the appeal argument that the child had been reckless in handling the device The in abstracto assessment of the child's behavior By the Lemaire decision (Cass., AP., May 1984), the Court of Cassation established the principle that trial judges no longer need to verify the discernment capacity of a minor, even at a young age, before establishing their fault. [...]
[...] In the absence of a definition of the concept of fault, the case law therefore has a certain margin of maneuver on the legal qualification of fault. The Court of Cassation participates in designating what constitutes or does not constitute wrongful behavior, with a great deal of casuistry. Indeed, this judgment may seem to be in contradiction with the judgment of the second civil chamber of the Court of Cassation, dated February which applies the principle that the fault of a minor may be retained against him even if he is not able to discern the consequences of his act. [...]
[...] By the Gabillet jurisprudence (Cass., AP May 1984), the Court of Cassation retains that the child 'had the use, direction and control of the baton, the Court of Appeal, which had not, despite the very young age of this minor, to search if he had discernment, legally justified its decision. » In this case, the child having had the use, direction, and control of the device, it would have been plausible that the Court of Cassation retained the faulty behavior of the child. However, the Court of Cassation rejects this argument. On the one hand, the device resembling a small plastic bottle, the jurisdiction maintains that nothing could have awakened the child's vigilance. On the other hand, the Court of Cassation retains that the child « had not been warned by Mrs. against the dangerosity of pyrotechnic devices ». The escort not having warned the 9-year-old child, the latter committed no fault of imprudence. [...]
[...] The question then arises of the imputability of the child's fault, in accordance with their capacity for discernment. Considering, even by an abstract assessment, that every child would have acted in the same way, the Court of Cassation still takes into account the capacity of the minor to exclude the child's fault. While today, fault is no longer defined solely by the objective element of transgression of a duty, the Court of Cassation still has means to avoid the automatic characterization of a child's fault, a victim of their own damage. [...]
