Characterization of a Volunteer Assistance Agreement: A Quasi-Contractual Perspective

Extract

[...] The rejection of a volunteer assistance agreement will necessarily have consequences, particularly on the basis of liability in order to obtain compensation for the victim. II. The rejection of the contractual basis of liability The absence of characterization of a volunteer assistance agreement will have the consequence of not creating an obligation of security at the charge of the assisted person, which constitutes a return to a more realistic vision requiring the search for another basis of liability to obtain compensation for the damage A return to a more realistic vision by the absence of an obligation of security at the charge of the assisted person This solution of the Court of Cassation appears more realistic because it may seem surprising that in the context of a free service relationship, the parties would have really had the intention of legally binding themselves to assume specific obligations. [...]

[...] It therefore excludes the volunteer assistance agreement and rejects the contractual basis of liability (II). I. Exclusion of the volunteer assistance agreement In the judgment, the Court of Cassation is faced with a voluntary act that may be constitutive of a volunteer assistance agreement Qualification that it will ultimately reject by considering that the volunteer assistance agreement is purely personal The characterization of a voluntary act, possibly constitutive of a volunteer assistance agreement Article 1134 of the old Civil Code, the cornerstone of contract law, precisely states that 'legally formed conventions take the place of law for those who made them'. [...]

[...] On the other hand, the manager must have acted in the interest of the master of the affair, but this interest may not be exclusive and must have intervened in the affairs of others outside of any prior obligation. In this case, it would have been simple to consider that the son who was the victim of the fall intervened as the manager of the affair since it appears that the owner did not express any opposition or agreement to the act. The son intervened in the interest of the owner since it was a matter of pruning the tree located on his property. [...]

[...] In the case at hand, we are in these last cases, two people come to help a neighbor to prune a tree, but one of them is a victim of an accident and it is there that the quality of the relationship between the protagonists is truly posed, for questions of compensation. The judges will then have to pronounce themselves on the existence of a contract between the victim of the fall, author of the voluntary act and the owner of the land, beneficiary of the act. The Court of Cassation has shown creativity on this point to facilitate the action of the assistant who suffered a damage. [...]

[...] Similarly, in this article, the expression is used to extract from the application of a general regime the situations where it would have no sense and thus apply particular rules. Again in articles 815- and 1871-1 with the same interest. [...]