The Court of Cassation judgment on 9 May 1984, known as the Lemaire judgment, ruled on the possibility of recognizing the fault of someone who is not capable of discernment.
Extract
[...] He had forgotten to check that the wires were not reversed. This had the effect that the socket was still under tension. The plaintiffs' son, aged 13, had then, on 10 August 1977, been electrocuted while screwing in a light bulb on the socket. The plaintiffs cite the defendant before the correctional court. After a judgment rendered in first instance, an appeal is lodged against it. By a judgment of 28 May 1980, the Court of Appeal of Douai recognizes the plaintiff as guilty of involuntary homicide and condemns him to a fine of 500 francs as well as to the payment of various reparations to the plaintiffs. [...]
[...] However, in this judgment, by recognizing an objective assessment of the fault, the Court therefore affirms that this fault can be taken into account against a person who is not capable of discernment. The victim is therefore doubly punished in some way. In fact, she is a victim of a prejudice, but she will not be able to claim full compensation, and this, even if she was not aware of the consequences of her act. The defendant can indeed be exempted in part from his fault by invoking the contributory fault of the victim. [...]
[...] May which affirms the principle of civil irresponsibility of "persons privées de raison ». It is on this jurisprudence that the plaintiffs wanted to rely by asserting that the appeals court could not hold the child liable for the fault. In fact, according to them, their child could not have been aware of the consequences of his action (in this case: not checking that the current was cut off before placing the light bulb). This principle, however, posed a major problem: the compensation of victims. [...]
[...] Civil fault could not therefore be held against a person who is not capable of discernment (discernment being when the individual is unable to be aware of their act and its damaging scope). The people concerned are often children and people with mental disorders that would alter their discernment. We did not focus solely on the damaging act of the individual, but on the person and their abilities. Several doctrine authors were in favor of these assessments of fault, notably M. Paniol or L. Josserand. The Court of Cassation also enshrined this principle. Among others, with the judgment Cass. req. [...]
[...] It therefore reverses this ruling and states that the fault committed by the victim without discernment must be appreciated in a circumstantial manner. A legal temperament had also been provided for by the 2017 Chancellery reform project, which, in article 1255, provided thatUnless it assumes the characteristics of force majeure, the fault of the victim deprived of discernment has no exoneration effect. ». The victims would therefore not be exonerated from their fault. The criticisms therefore pushed the Court to reconsider the negative aspects of its decision. [...]
