The Court of Cassation confirms that a third party can invoke a contractual breach to engage tortious liability, but must also abide by limiting clauses.
Extract
[...] The Court of Cassation responds affirmatively to this interrogation. In fact, after having approved the Court of Appeal for having rejected the exception of lack of jurisdiction, it quashes the judgment on the other points. In the light of Article 1240 of the Civil Code (and based on the provisions of Articles 1134 and 1165 in their previous version prior to the 2016 reform), the high court states that a third party to a contract who invokes, on the basis of tort liability, a contractual breach that has caused him damage can be opposed to the conditions and limits of liability applicable in the relations between the contracting parties. [...]
[...] Consequently, the Court of Cassation censures this reasoning and quashes the judgment on the basis of Article 1240 of the Civil Code regarding extracontractual liability (joining the provisions of the former Articles 1134 and 1165 repealed by the Ordinance of 2016). It clearly states in this judgment of December that third party to a contract who invokes, on the basis of tortious liability, a contractual breach that has caused him damage, may be opposed to the conditions and limits of liability that apply in the relations between the contracting parties". [...]
[...] Such a situation would be contrary to the coherence of the law of obligations. This decision is in line with recent case law, particularly a judgment rendered on July by the Commercial Chamber, which already admitted the opposability of limiting clauses to third parties invoking a contractual breach. However, the solution adopted by the Court of Cassation raises questions about the scope of such an evolution, which tends to strengthen the influence of the contract on third parties, erasing the distinction between contractual liability and tort liability (II). [...]
[...] The accounting company then appealed to the Court of Cassation. In support of its arguments, it notably argued that a third party to a contract who acts on the basis of tort liability by invoking a contractual breach must be confronted with the conditions and limits of liability provided for in the contract concluded between the parties. The judges of the high court then asked themselves the following question: Are the clauses limiting liability stipulated in the report between the parties opposable to the third party who has engaged in the action for tort liability? [...]
[...] The Court of Cassation does not question the faculty for the third party to invoke a contractual breach, but it confirms that this must also bear the conditions and limitations of liability applicable between the contracting parties. The objective pursued is to avoid the third party benefiting from a more favorable regime than the contractual creditor himself. [...]
