Force majeure, liability, victim fault, irresistibility, unpredictability, externality, civil liability, contractual matters, Court of Cassation
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Abstract
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Abstract
The article discusses the uncertainty surrounding the criteria for force majeure, particularly in relation to the victim's fault and its implications on liability.
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[...] Force Majeure: An Unstable Regime? This solution raises questions about the implementation of force majeure In addition, the current situation seems to be moving towards a rebalancing of the force majeure regime A solution questioning the implementation of force majeure This solution allows us to question the implementation of force majeure. Indeed, it refuses to recognize a security obligation. However, we can consider it normal to verify certain security conditions for an organization that provides a service like the RATP. [...]
[...] It is specified in the senatorial bill that the victim's fault is only exempt if there is force majeure. The victim's fault without discernment will not have an exempting character, this is a change brought by the text. Furthermore, force majeure will be limited in bodily harm. Thus, in the event of bodily harm, the victim's fault will not be able to exempt the defendant from action unless this fault is a serious fault. It is then that the regime of force majeure will be rebalanced since the special regimes will be treated differently. [...]
[...] It seems that the criterion of externality is still maintained. However, jurisprudence often sets aside the characterization of this criterion. This shows well that the characterization of the criterion of externality is a persistent uncertainty. Even if the Court of Cassation defines it as a criterion, in practice, it is not always what is applied. This solution indeed contributes to the persistence of uncertainty regarding the criterion of externality of force majeure as it recognizes a force majeure with two criteria. [...]
[...] Furthermore, jurisprudence evokes a maintenance of the criterion but it is not applied. This seems inconsistent with this decision which does not characterize it as it has often been the case in jurisprudence. In addition, the implementation of force majeure in this case allows the defendant to be protected who could not have foreseen or countered this situation. However, this confers a fairly large margin of appreciation to the judge who must analyze the criteria of force majeure in relation to the cases and damages. [...]
[...] Emphasis is also placed on the possibility that an irresistible and unpredictable fault of the victim falls under force majeure A persistent uncertainty regarding the criteria of force majeure This solution allows for the reaffirmation of the principle based on which the victim's fault allows for a total exoneration of the responsible party, if it is of force majeure. When it does not have the character of force majeure, this fault of the victim can lead to a sharing of responsibility between the author and the victim. However, force majeure is normally implemented when three criteria are at play. [...]
