This article discusses the contours of Article 1234 of the 2020 Civil Liability Reform Project concerning the third-party victim of a contractual non-performance causing damage.
Extract
[...] Later, on July a bill to reform civil liability was registered at the Presidency of the Senate. In general, this latter reform project consists of two acts: on the one hand, it strictly delimits the tort liability from the contractual liability; on the other hand, it renews the duality of tort and contractual faults in the framework of the liability of contractors vis-à-vis third parties. Whatever the case, all these projects have the objective of adapting to the current challenges of society but also of facilitating and simplifying the law. [...]
[...] Article 1234 of the 2020 Civil Liability Reform Project - What are the contours of this article dealing with the third-party victim of a contractual non-performance causing damage? Article 1234 of the 2020 Civil Liability Reform Project CIVIL OBLIGATIONS LAW - Text Commentary: Article 1234 of the 2020 Civil Liability Reform Project In recent decades, more or less ambitious and comprehensive projects have emerged regarding a profound and extensive reform of civil liability. Civil liability refers to the obligation to repair the damage caused to others and stems from Article 1240 of the Civil Code. [...]
[...] The question that arises in this case is the following: What are the contours of Article 1234 of the 2020 reform project concerning the third party victim of a contractual non-performance causing damage? In order to answer this question, it is necessary to study in the first place this refounding of the conditions of action for the repair of the third party victim of a contractual non-performance before turning to this expected reform in the second place (II). A refounding of the conditions of action for the repair of the third party victim of a contractual non-performance An action in the main on the basis of extracontractual liability and a subsidiary action on the basis of contractual liability - The relevant texts in positive law: article 1165 of the Civil Code in its pre-2016 version + article 1382 now 1240 of the same Code - Main action = basis of extracontractual liability: burden of proof of the fact generator weighing on the third party - Subsidiary action = basis of contractual liability: 2 cumulative conditions (legitimate interest of the third party and absence of other action for damages) protection of the injured third party A remake based on existing similar ideas - These ideas were already in the Senate information report named Anziani-Béteille (2009) but also in the Catala draft - In the 2017 reform project: necessity of direct damage, the basis of contractual liability is presented in 1st, extra-contractual liability in 2nd, the injured third party has a choice - the 2020 version is more precise and complete, especially regarding the overlap of the two actions (no choice) II- A reform of the action for damages of the third party victim of a contractual non-performance expected Important jurisprudential stakes - Consolidation of the Court of Cassation's ruling dated 13/01/2020, number 17-19963 (establishment of the breach in the context of the contract as the factual generator of extra-contractual liability) - impatience of the judges - If adopted, upheaval of the solutions rendered. [...]
[...] What about chains of contracts in the matter of sale? Complexity because several third parties, several actions An increased protection for the third party victim of a contractual non-performance - In general, the third party is protected by the relative effect of the contract (1199 of the Civil Code) + by the opposition of the contract by the third parties to the co-contractants. Here, opening of two ways for a legal action with a clear, pedagogical text. [...]
