Extract
[...] The person responsible in the extra-contractual field has a more serious behavior, since they have failed to meet a legal duty. B. The Identity of Contractual and Delictual Faults Does the non-performance of its obligations by a co-contractor equate to a failure to meet the general duty of prudence and diligence? This is the entire difficulty. The principle was established in the famous case Myr'ho/ Bootshop (Ass. plén October 2006) : « a third party to a contract can invoke on the basis of tort liability, a contractual breach as soon as this breach has caused him damage. [...]
[...] The abuse of right was thus characterized by the use of a right solely with the intention of harming others. Since then, the criterion has been expanded: it is no longer necessary to simply demonstrate the intention to harm, but rather to demonstrate the absence of interest or utility for himself of the behavior of the owner (Civ. 3e March 2010). One sees: the theory of abuse of law allows for a very broad qualification of the fault. 2. Regarding the second element, namely the element of illegitimacy The element of illegitimacy can be characterized due to the breach of a pre-existing obligation, according to the famous formula of Planiol: the behavior is then contrary to an imperative legal norm that derives from the law, a regulation, a professional rule, etc. [...]
[...] The definition of fault A. The missing element: the subjectivity of fault Fault is no longer defined subjectively, meaning it is not necessary for it to be morally imputable to its author or for the author to have the capacity for discernment. This applies to both majors and minors. Regarding minors, jurisprudence has ultimately aligned itself with the text of Article 414-3 of the Civil Code, under which 'he who has caused damage to another while under the influence of a mental disorder is no less obliged to repair thus generalizing the rule to minors: the fault of a minor does not imply verifying whether he 'was capable of discerning the consequences of his act'Ass. [...]
[...] Personal liability is provided for by Articles 1240 and 1241 of the Civil Code, according to which not only 'any act whatsoever of man, which causes damage to another, obliges the person by whose fault it occurred to repair but also, 'each person is responsible for the damage they have caused not only by their act, but also by their negligence or imprudence.' This liability is based on a faulty intentional fact (Article 1240, Civil Code) or non-intentional fact (Article 1241, Civil Code). The question arises as to the extent to which a voluntary use of general terms, particularly the notion of fault ('any act whatsoever'), has allowed the jurisprudence to provide clarifications, all favorable to the victim. We will successively consider the definition of fault in extracontractual liability law and then from the angle of one of the conditions for implementing this liability (II). I. [...]
[...] In its decision of 3 July 2024, it considers that 'the third party to a contract who invokes, on the basis of delictual liability, a contractual breach that has caused him damage may be opposed to the conditions and limits of liability that apply in the relationships between the contracting parties'. The third party could, however, escape the opposability of the liability limitation clauses by showing that the contractual breach constitutes, at the same time, a delictual fault. In conclusion : detached from any moral connotation, fault is now assessed objectively. The victim's compensation has prevailed over the imputability of the fault to the responsible party. [...]
