Abuse of function, principal liability, agent, civil liability, vicarious liability, Article 1242, Civil Code, Court of Cassation, jurisprudence, indemnifying function
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Abstract
Extract
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Abstract
The Court of Cassation clarifies the conditions for characterizing abuse of function, affirming that a subordinate acting outside their functions without authorization and for foreign purposes constitutes abuse.
Extract
[...] Indeed, the liability of the principal, when it is recognized, is absolute. This means that, when it is engaged, the principal cannot prove his absence of fault in order to exonerate himself. He is left with only force majeure, the victim's fault, and the act of a third party. The reason why the employee's liability is absolute is that it makes it easier to compensate the victim. But here, the Court would be saying that there is a fourth cause of exoneration for the absolute liability of the principal towards his employee. [...]
[...] Certainly, the principal, and by extension the company, is often much more solvent than the agent. However, the severity towards the principals is not the only criticism addressed to this judgment. In fact, the judges of the Quai de l'Horloge render a judgment that raises certain questions and brings confusions. B. The legitimate questions that are factors of criticism of the judgment This judgment, despite its contribution, by providing answers to certain questions, ultimately raises others, particularly regarding its impact on contractual matters. [...]
[...] In contractual matters, abuse of function is assessed from the victim's point of view. The jurisprudence answers the question later by stating that abuse of function is characterized when the victim could not legitimately think that the agent was acting on behalf of the principal. It applies the theory of appearance and legitimate belief. This theory is notably consecrated by a judgment of 26 January 1897 in which the Court holds thatas soon as the common and invincible error as well as the good faith of third parties are established, the alienations consented by the apparent heir escape any action for resolution directed by the true heir ». [...]
[...] had acted in a deliberate manner, whatever his motives, against the object of his mission, to "purposes contrary to his attributions", the second-degree jurisdiction has correctly deduced that the aforementioned Mr. X . had placed himself outside the functions to which he was employed by the S.G.I. company and that this company was not civilly responsible for the actions of its subordinate" ». Here, it clearly states that the first two conditions (acting without authorization and for personal purposes) are cumulative. However, this judgment raises questions. The doctrine questions whether the third condition (acting outside of functions) is simply a result of the other two or a separate third condition. [...]
[...] The first judgment rendered on the abuse of function is that of June (Cass. Ass. Plén., June 82-91.632) in which the Court states that ""the provisions of Article 1384, paragraph of the Civil Code do not apply to the perpetrator in the event of damages caused by the subordinate who, acting without authorization for purposes foreign to his attributions, has placed himself outside the functions to which he was employed ». This response from the Court is not entirely clear, however. [...]
