French Civil Liability in Comparative Perspective
France is in the process of rewriting its private law of obligations. In 2016, the law of contract, the general regime governing obligations and the law of proof of obligations was reformed by the French government – and the law as promulgated and brought into force was in 2018 subject to a handful of further amendments on its ratification by the French Parliament. In March 2017, the French Ministry of Justice published a draft bill for the reform of “civil liability”, putting together for this purpose liability for contractual non-performance and the most important grounds of “extra-contractual liability”. To an English lawyer, some of the provisions remain of an astonishing breadth, notably, art.1241 which states that:
‘A person is liable for the harm caused by his fault.’
Fault being defined or explained as (art.1242)
‘A violation of a legislative requirement or a failure in the general duty of care or diligence constitutes a fault.’
Last week a workshop supported by the Institute of European and Comparative Law and St John’s College took place at St John’s to consider the highly distinctive approach to ‘civil liability’ taken by French law, present and future, in the light of the Ministry’s draft bill. The workshop was convened by Simon Whittaker of St John’s and the Institute of European and Comparative Law and Jean-Sébastien Borghetti of the University of Paris II Panthéon Assas (and a former Paris Visiting Fellow of the Institute) and some 20 papers were presented by scholars from Oxford and other UK Universities, and from France, and other continental universities. The papers ranged across a number of topics including the relationship between contractual and extra-contractual liability; the definition of ‘fault’ and the role of liability without fault; the distinction between harm (le dommage) and loss (le préjudice); the introduction of a “civil penalty” (une amende civile) and the relationship between administrative liability and civil liability. The papers will be published in 2019 by Hart Publishing/Bloomsbury as French Civil Liability in Comparative Perspective (eds J.-S. Borghetti and S. Whittaker) in the series Studies in the Institute of European and Comparative Law.
Earlier, the Direction des affaires civiles et du sceau of the French Ministry of Justice commissioned Simon Whittaker in consultation with Jean-Sébastien Borghetti of the University of Paris Panthéon-Assas (Paris II) to translate the bill into English and this was published on the Ministry website. The French text is available here.
John Cartwright and Simon Whittaker The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms, Hart Publishing, 2017