Extract
[...] It is possible to presume consent. External Circumstances > Among external circumstances, one can mention the order of the law and the command of legitimate authority 1. The Order of the Law > The perpetrator of damage may justify themselves if they have complied with an order given by the law. This is particularly the case for someone who arrests the perpetrator of a flagrant offense, even if the latter suffers damage (art. [...]
[...] For a very long time, opposition, and the jurisprudence was hostile The full assembly of the Court of Cassation (May 1984) admitted in a series of decisions the liability for fault of young children: - Dergeruin - Lemaire Judgment Extension of the rule of Article 489-2 to young children by admitting that judges in the first instance are not required to sanction the responsibility of a minor. The law of January completed by the judgments of 1984, have operated a general suppression of the condition of imputability of the fault. Today, every individual is subject to the principle of personal responsibility (whether they are a major or minor, of sound mind or alienated) a. [...]
[...] The fault of commission (fault in the action) > The fault of commission is the most frequent : It consists of having done what one should not have done, violation of a social life taboo. > There is a series of cases in which the fault is not in doubt: A text explicitly prohibits the act committed OR prescribes the obligation that was not respected The judge has only very limited discretion since it is the law itself that has set the imperative standard (here, the hypothesis concerns all criminal norms) > Any penal reprehensible act constitutes a civil fault even if it has not given rise to penal proceedings This concerns all faults when one contravenes an express text (even if it is not sanctioned or accompanied by a penal sanction) For example: concealment of an object originating from an inheritance, even before the partition has taken place Article 1240 and 1242 of the Civil Code > HOWEVER, most often, the judge does not have a text that has been violated Violation of a customary rule What the judge will sanction it is the failure to comply with a pre-existing obligation that falls within a general duty of prudence or diligence The judge will have to assess in relation to customs and good sense what constitutes a fault Unlike penal law, which is governed by the principle of equality of crimes and penalties, the civil code does not have a limited list of faults > Here, the role of the judge is extremely important to characterize the fault > Example in the field of sports fault: If an athlete has caused damage to another person, it may happen that he is required to repair it but not systematically This is what happens in the context of violent sports (boxing, rugby, hockey, etc.) These sports imply a certain acceptance of risk-> In the field of sports, two hypotheses: - The athlete causes damage by respecting the rules of the game (liability cannot be engaged because the opponent accepted the practice of the sport and the opponent accepted the rules of the game) - The athlete was unaware of the rules of the sport (his civil liability may be engaged on the basis of article 1240) The rules of the game are private rules defined and provided by sports organizations One should not conclude that the judge is not competent The judge can condemn the author of the damage on the basis of article 1240 or 1241 of the civil code In this regard, he is not bound by the arbitrator's decision (judgment of the 2nd civil chamber of 10 June 2004) > In general, the judge has a power of appreciation that is more or less wide depending on whether the fault consists in the violation of an express rule or the general duty of diligence and prudence The violation of a duty is assessed in abstracto in light of the behavior that a normally diligent person would have adopted in the same situation b. [...]
[...] > Article 1254 dedicates innovative effects to lucrative fault? Lucrative fault with two conditions : - If the author of the damage deliberately committed a fault in order to obtain an undue gain or economy - The established breach has caused one or more damages to several physical or moral persons placed in a similar situation the amount of compensation is calculated according to the profit obtained by the author of the fault and the gravity of the fault committed If it is a physical person, the sanction cannot be higher than double the profit made If it is a moral person, this amount cannot be higher than the quintuple of the amount made > The fault engages the extra-contractual liability of its author = principle of assimilation of the effects of civil delict (article 1240) and quasi-delict which aims at imprudence and negligence having caused a damage (article 1241) In summary: - In tort matters: serious or minor fault, intentional or not, is not taken into account Any fault is sanctioned by the same liability, obligation of its author to fully compensate for the resulting damage Consequences: the judgments that require a serious fault to condemn the author of the damage are always overturned by the Court of Cassation This is the principle but in practice, the degree of the fault exercised an occult influence on the amount of compensation fixed by the judges - In addition, there is a difference between intentional fault and non-intentional fault Insurance is prohibited in the case of intentional fault The only derogation from this principle is article 1254 of the civil code, derogation entered on May and issued from a law of April This law revolutionizes the law of civil liability B. [...]
[...] This fault by omission has sparked numerous controversies > Should we acknowledge omission as a source of responsibility? - If we acknowledge it, we hold someone responsible who has done nothing - This comes back a bit to infringing on individual freedom > The doctrine has tried to mitigate this consequence by distinguishing two kinds of omission: - Omission in action It occurs through a series of positive acts with which it is associated For example: Done by a driver not braking in time (what is considered is not a abstention in itself but more broadly driving imprudently (that's the action)) - Pure and simple omission In this case, simple omission is an abstention that does not fit into the framework of a series of positive acts For example: Witness of an accident does not provide assistance (pure and simple omission must be sanctioned) Regarding pure and simple omissions, the doctrine is less unanimous Some authors make responsibility depend on a sub distinction according to whether there is or not an obligation to act > Intention to harm is a criterion for some Position of Jean Carbonnier The jurisprudence does not seem to be able to be interpreted systematically and the courts do not always refer to the proposed instinctive criteria In jurisprudence, the problem is posed in identical terms for commission and omission It is a matter of comparing what the author did or did not do with what he should have done or should not have done In both cases, one compares the author's conduct to that of the reasonable man > In an important ruling, the Court of Cassation adopted a very liberal position BRANLY February 1951 In this case, the historian was doing a retrospective on the ancestor of the radio and did not mention the name of BRANLY in the invention The fault provided for in the articles can consist as well in an abstention as in a positive act However, in this case, condemnation mainly because the intention to harm was perfectly established (but the Court of Cassation also admits that the fault of abstention must be approached in the same way) > The fault of abstention does not necessarily imply a malicious intention But the fault of abstention can only be sanctioned if the responsible person was forced to act within the framework of a pre-existing obligation An illegal factual behavior (the legal element) > All harmful behavior does not constitute a fault calling for repair Example of fair competition > For a fact to be illicit, it is not necessary for it to be formally illegal That is to say, expressly prohibited by a text > On the other hand, the fact of being in conformity with a legal or regulatory provision does not necessarily prevent the retention of a fault > Once the behavior of fact is established, intervention of a legal appreciation Is this fact, in the circumstances in which it occurred, constitutive of a fault in the sense of articles 1240 and 1241 of the Civil Code ? [...]
