Custody of Thing and Liability

Extract

[...] Thus, the judge must adapt to the casuistry of each case to make his decision, which gives him a fairly large power of interpretation. However, despite this jurisprudential orientation, the transfer of custody outside of a contractual framework is not often admitted. This is illustrated by a decision of the second civil chamber of the Court of Cassation of May When the transfer is extracontractual, the jurisprudence has difficulty excluding the simple presumption of liability that weighs on the owner of the thing. Thus, the apprehension of the criteria for characterizing the transfer of the thing and evading this presumption, rests on casuistry. [...]

[...] The Court of Appeal of Saint-Denis de La Réunion in its judgment of 26 April 2019, holds that the custodians of the thing are responsible for the damage suffered and condemns them to pay sums for repair. The defendants complain that the judgment did not retain that no transfer of the thing had taken place towards the child, whereas he had taken possession of the weapon after entering a room without authorization. Can the use of a thing constitute a transfer of custody of the thing? [...]

[...] Furthermore, in an article published in 2010, an author pleaded in favor of the abandonment of the responsibility of things, arguing its uselessness at a time when most accidents were related to traffic or defective products, for which special regimes existed. However, it does not seem that this will be realized since the senatorial bill proposal of 2020 goes against this suggestion. It proposes, on the contrary, to codify the regime of responsibility of the guardian and therefore the responsibility of things. This divergence reflects well the continuous debates around this responsibility. [...]

[...] This shows a defeat of legal guardianship. Yet, the characterization of the criteria can be challenged, due to the justification concerning the child's capacity. In fact, the lack of discernment related to a child's capacity is not exoneration of responsibility for the fact of things. This is, in fact, what the plenary assembly decision of the Court of Cassation of May Gabillet, provides. Indeed, in this case, the Court ruled that the awareness of the scope of the acts was not a criterion for exoneration of responsibility of the guardian of the thing, being a 3-year-old child. [...]

[...] Thus, casuistry often allows to maintain the presumption of responsibility of the owner. But, it pursues a purpose. Furthermore, the regime of responsibility of the guardian is the subject of a divergence. A divergence as to the regime of responsibility of the guardian As we have just seen, it is not required that the guardian have full consciousness of the consequences of his acts to be held responsible for the damage caused by the thing he has in his care. [...]