Civil immunity, agent liability, jurisprudence, Court of Cassation, tortious nature, personal fault, employment contract, subrogation, Article 1240 Civil Code
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Abstract
The civil immunity of an agent has been a subject of jurisprudence evolution, with landmark rulings shaping its characterization and implications on civil liability.
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[...] This decision sparked controversy, with some jurists questioning the need for a personal fault distinct from that committed within the scope of functions to engage the agent's personal liability. Thus, this ruling contributed to the complexity of the jurisprudence on the civil immunity of the agent, leaving a blur as to the characterization of this immunity and its implications in terms of civil liability. In our 2007 ruling, we will see that there is a precision of its regime. Thus, the jurisprudence was quite unclear on the notion of civil immunity of the agent. [...]
[...] Court of Cassation, Civil Chamber December No. 07-13.403 - Can the employer bring an action against his employee after having compensated the victim of a damage caused by the agent? Cass., Civ. 2e Dec n° 07-13.403, published in the Bulletin By a judgment of dismissal dated 20 December 2007, the Second Civil Chamber of the Court of Cassation rendered a decision concerning the appeal of an employer against his agent. In this case, a client's vehicle was damaged while being driven by a chauffeur, defendant, employee and agent of the plaintiff company. [...]
[...] However, some reservations persist. Indeed, the 2016 draft reform of civil liability and the 2020 senatorial bill propose that "the agent incurs personal liability only in the event of intentional fault, or when, without authorization, he acted for purposes outside his duties." However, there remains a difficulty in understanding whether the intentional fault concerns only the criminal sphere or also the civil sphere, which raises restrictive criteria and raises questions regarding the protection of victims. [...]
[...] The Court of Cassation responds negatively. It rejects the appeal on the grounds that the employer plaintiff has no recourse action against his employee defendant before the common law jurisdiction, since he cannot rely on subrogation in the victim's rights, which has no action against the agent who acted within the limits of the mission assigned to him, except in the case where the victim's damage results from a criminal offense or intentional fault. The accident having occurred in the exercise of the defendant's professional obligations, the examination of the dispute required the assessment of the existence of a fault in the execution of the employment contract, which falls within the jurisdiction of the labor court. [...]
[...] The lack of clarity of the civil immunity of the agent has caused reticence. Furthermore, the very existence of this immunity can be contested. II. A liability of the commissioner by right of his agent contestable This solution leads to a reflection on the reticence it brings regarding the protection of victims In addition, it translates a nuanced criticism of the possible recourses against the agent A. A solution provoking reticence regarding the protection of victims The Costedoat ruling of 25 February 2000, enshrining the principle of the civil immunity of the agent, has raised strong reservations regarding the protection of victims. [...]
