Extract
[...] Exoneration by the fault of the victim or the act of a third party The fault of the victim The fault of the victim may give rise to a total or partial exoneration a. Total exoneration > Total exoneration if : - Force majeure - Fault of the victim is the exclusive cause of the damage > The jurisprudence is very severe for admitting cases of total exoneration, particularly regarding railway transport In this matter, it generally retains the absence of any exoneration of the victim's fault due to the absence of predictability of her behavior. [...]
[...] To achieve this, the first idea was to resort to contractual liability, particularly when damages occurred within the framework of the employment contract. By this contract, the employer not only undertakes to pay a salary to the worker but also to ensure his safety. If an accident occurs, it is at the same time established that this obligation of safety weighing on the employer has not been respected and therefore, he is fully responsible, unless he demonstrates that the non-execution of this obligation is due to a case of force majeure. [...]
[...] It is not necessary that the thing be in motion > The distinction between inanimate object and moving object had an influence on jurisprudence at one time, but this distinction has been rejected The immobility of the object at the time of the accident does not prevent it from intervening in the accident BUT the distinction between inanimate object and in motion plays an important role in the probative field (the causal role of the object is much less simple to establish when the object is inanimate than when it is in motion) - Hypothesis of the moving thing and contact with the seat of the damage In this hypothesis, we make a presumption because when a thing capable of movement has come into contact with the seat of the damage, the fact of the thing is presumed It is presumed because on the terrain of causality, the active role of the thing is difficult to contest = presumption Judgment of the 2nd Civil Chamber of 26 November 1984 This presumption is taken up in the RC reform project at article 1243 Will to codification in constant law - Hypotheses of the inanimate thing in contact with the seat of the damage or the moving thing without contact with the seat of the damage It is up to the victim to prove that the thing played a causal role due to a defect, an abnormality of its position, state or behavior = Abnormal position - One can also admit the role of the inanimate thing and without contact with the seat of the damage Example at Halloween with decorations that scare passersby Proof of the fact of the thing > Principle: the burden of proof lies with the victim pursuant to article 1353 of the civil code As the fact of the thing is a legal fact, the proof can be made by any means It belongs to the victim to prove that it is the cause of the damage, and the burden of the victim will be more or less heavy depending on whether the thing is in motion or inert (the active role of the thing will be more easily admitted if the thing was in motion) The guardian of the thing must prove to him that the thing did not play a role It is very difficult to prove in the case of contact The burden of the private party rests in principle on the victim, but there are exceptions (moving thing, presumption of the fact of the thing) play of presumptions (jurisprudential hesitations that have weakened solutions in the case of the fact of the inert thing): > At the beginning of the 2000s, jurisprudence in certain judgments had extended the presumption of the fact of the thing even when the thing was inert This is the solution that was retained by a judgment of April which concerned a break of ice (having led to injuring a child's arm) The fact that the thing breaks when a 13-year-old child hits it = sign of extreme fragility, anomaly Even the same solution in the judgment of the second civil chamber of June 15, 2000 By a later judgment, September the court went even further it admits here that from the moment a person hits an inert thing, we deduce their role in the damage = this is a heavy consequence for the owners of inert things Judgment of September Bucket of cement on the side of a pedestrian passage Will to indemnify the victims but heavy consequences for the guardians of an inert thing Judgment of February concerns a broken window, it was fragile, therefore abnormal Then it returned to the classical reasoning of proof in the case of an inert thing (March relatively the same case as 2003 but not even a decision, here she does not indemnify) C. The custody of the thing > Article 1242 paragraph 1 declares responsible the one who has the thing. This has caused numerous hesitations We need to specify the notion of custody We then need to determine its custodian The approach to custody in jurisprudence a. [...]
[...] Ass. plén May 1984) - He gets his friend's eye out because the swing is worn out - Held responsible, in line with the Trichard jurisprudence > Do not confuse custody and property: Guardianship often coincides with the right of ownership and the owner is presumed to be the guardian However, this presumption is a simple presumption that yields to contrary evidence and the owner can exonerate themselves from their responsibility by proving the transfer of custody or by proving the loss of this custody La détermination du gardien > In article 1243 of the reform project The owner is presumed guardian Simple presumption (not irrebuttable) In what way can custody be transferred ? [...]
[...] In the absence of the characteristics of force majeure, well the Court of Cassation admits a partial exoneration. b. Partial Exoneration > From 1963, in a judgment rendered by the 2nd civil chamber, the jurisprudence has admitted that it is possible to partially exempt oneself from one's responsibility by the non-faultful act of the victim lacking the characteristics of force majeure BUT having contributed to the realization of the damage. > For a short time between 1982 and 1987, this jurisprudence experienced a setback = was called into question with the Desmares Judgment of 21 July 1982 Excluded all possibility of partial exoneration of the guardian It is stated in this judgment that only events constituting a case of force majeure had an exoneration effect and that the behavior of the victim, if it had not been unpredictable and irresistible, did not allow the guardian to be partially exempted =>This jurisprudence is a provocative judgment to encourage the legislator to take a law dedicated to road accidents This judgment only retained total exoneration by force majeure (all partial exoneration was excluded, in particular those based on the victim's fault) Interest in the automobile The person knocked down by a car will be compensated without retaining their small fault = ALL OR NOTHING RULE (Desmarres Jurisprudence) > It would take the law of 5 July 1985 BADINTER > Mettetal Ruling of 1987 6 April 1987, reverses the jurisprudence Desmarres after the entry into force of the BADINTER law We return to the pre-Desmarres jurisprudence (the victim's fault can have a partially exoneration effect) > Today, we must distinguish the victim's wrongful act from the victim's non-wrongful act in the case of non-force majeure : Only the victim's wrongful act constitutes a partial exoneration, the non-wrongful act is no longer retained by the jurisprudence The fact of the third party > The fact of the third party can also lead to exoneration of the fact of liability, it does not present any particularity : - Totally exoneration if it presents the criteria of force majeure, or if it is the exclusive cause of the damage - Partially exoneration if it is not the case The Court of Cassation, by a judgment of 5 September 2024, recognizes thus the liability of the fact of things. [...]
