General Contract and Tort Law
-A general safety requirement, based on contractual good faith and equity, has developed through the courts’ interpretation of Articles 1104 and 1194 of the French Civil Code.
Traditionally, French law applies the principle of non-cumulation of contract law and tort law : in other words, a victim of a contractual harm cannot file a lawsuit under tort law and, conversely, for someone to file a lawsuit on the basis of a contract, they must be a party to that contract.
Under tort law, a person injured by a product has a cause of action against the wrongdoer under Article 1240 of the French Civil Code and the custodian of the product under Article 1242 of the French Civil Code. However, the product liability statutes prevail over general contract law and general tort law. As a result, a victim may file a lawsuit against the producer or manufacturer based on general contract or tort law only if the product liability statutes (Articles 1245, et seq) do not apply.
Traditionally, French law applies the principle of non-cumulation of contract law and tort law : in other words, a victim of a contractual harm cannot file a lawsuit under tort law and, conversely, for someone to file a lawsuit on the basis of a contract, they must be a party to that contract.
Under tort law, a person injured by a product has a cause of action against the wrongdoer under Article 1240 of the French Civil Code and the custodian of the product under Article 1242 of the French Civil Code. However, the product liability statutes prevail over general contract law and general tort law. As a result, a victim may file a lawsuit against the producer or manufacturer based on general contract or tort law only if the product liability statutes (Articles 1245, et seq) do not apply.
General Contract Law
A general safety requirement based on contractual good faith and equity applies to all contracts. The general safety requirement might be described as a mechanism to transfer the risk from the victim to the professional—or in other words, the deep pocket.
Depending upon the contract, the general safety requirement may involve an obligation of results or an obligation of means. In the case of an obligation of means, the victim must prove negligence or other wrongdoing, the injury, and the link between the fault and the injury whereas in the case of an obligation of results, the victim only has to prove the injury and that the result has not been achieved.
Development of the general safety requirement has been limited by promulgation of the European Community Directive (July 25, 1985) incorporated into Articles 1245 to 1245-17 of the French Civil Code providing new rules for liability for defective products. These new rules prohibit the plaintiff from filing an action based on general contract law except with respect to causes of action based on:
- the warranty for hidden defects under statute; or
- negligence or wrongdoing of the manufacturer or producer where the wrong is not related to the lack of safety of the product.
Where the seller is a professional[1], the safety obligation in the sales contract consists of delivering products free from any and all manufacturing or other defects likely to create a danger for people or harm to property. For example, professional sellers are liable—in the event of poor design, manufacture or even packaging of the product sold, when this is the cause of the loss—for failure to confirm the conformity of the product before its release on the market.
What must be proven
Besides the breach of a safety requirement, the claimant has to prove property damage and/or personal injury and that the breach of the safety requirement was the proximate cause of such property damage and/or bodily injury.
Causes of Exoneration
The fault of the victim may constitute a cause limiting the liability of a professional manufacturer or producer or even exonerate such manufacturer or producer from liability. The latter will not be held liable if it can establish that the fault of the victim was the exclusive cause of the injury or in the event of a case of force majeure.
Contract provisions excluding or limiting liability under general contract law
According to article 1231-3 of the French Civil Code, contract provisions excluding or limiting liability are valid except in the event of gross negligence or willful misconduct by the wrongdoer.
Moreover, there are many areas where these contract provisions are precluded by law and therefore any such provisions will be deemed null and void. For instance, Article 1245-14 of the French civil Code relating to liability for defective products precludes such provisions. According to Article L.212-1 of the French Consumer Code, clauses providing for the elimination or reduction of compensation for injury suffered by a non-professional or a consumer in the event of failure by the professional to fulfill any of its obligations are deemed invalid.
However, such provisions are valid if agreed upon between professionals having the same specialty conducting their usual business activities.
What must be proven
Besides the breach of a safety requirement, the claimant has to prove property damage and/or personal injury and that the breach of the safety requirement was the proximate cause of such property damage and/or bodily injury.
Causes of Exoneration
The fault of the victim may constitute a cause limiting the liability of a professional manufacturer or producer or even exonerate such manufacturer or producer from liability. The latter will not be held liable if it can establish that the fault of the victim was the exclusive cause of the injury or in the event of a case of force majeure.
Contract provisions excluding or limiting liability under general contract law
According to article 1231-3 of the French Civil Code, contract provisions excluding or limiting liability are valid except in the event of gross negligence or willful misconduct by the wrongdoer.
Moreover, there are many areas where these contract provisions are precluded by law and therefore any such provisions will be deemed null and void. For instance, Article 1245-14 of the French civil Code relating to liability for defective products precludes such provisions. According to Article L.212-1 of the French Consumer Code, clauses providing for the elimination or reduction of compensation for injury suffered by a non-professional or a consumer in the event of failure by the professional to fulfill any of its obligations are deemed invalid.
However, such provisions are valid if agreed upon between professionals having the same specialty conducting their usual business activities.
General Tort Law
Tort law applies, as opposed to contract law, in the following two instances :
Where the injury occurs during performance of a contract but is not the result of the breach of a general safety requirement. This is the case where a patient is injured during the use of a defective product by the surgeon.
Where there is no contractual relationship at all. This is the case, for example, where a customer is injured on the premises of a storeowner. In this case, the claimant cannot base his or her claim on contractual liability of the professional because no contract has been entered into.
Regarding the first bullet point noted above, it should be pointed out that the broad concept of contractual liability with respect to safety requirements, as adopted by case law, does not make it possible to clearly define the scope of contractual liability as opposed to tort liability.
Under tort law, a person injured by a product or any inanimate object has a cause of action against the wrongdoer under Article 1240 of the French Civil Code and/or the “custodian” of the inanimate object under Article 1242.
Causes of action against the wrongdoer under Article 1240 of the French Civil Code
To establish a claim against the wrongdoer under Article 1240 of the French Civil Code, the claimant has to prove fault, property damage and/or personal injury, and that the fault is the proximate cause of the injury. Failure to provide information regarding the precautions to be taken when using a hazardous product may be considered by the courts as fault. Failure to act can also constitute fault. For example, when faced with a known and scientifically identified danger, a manufacturer who does not take any action (such as conducting a recall) breaches its duty of care. 
Under European and French regulatory requirements, a manufacturer can be liable, despite the fault of the victim, for failing to prevent a foreseeable risk of loss.
Causes of action against the custodian of the product (or inanimate object) under Article 1242 of the French Civil Code
Under Article 1242 of the French Civil Code, liability can also be found against the “custodian” of a product for injury caused by it while under such person’s care. For liability to be established, the causal link between the product and the injury must be proven as well as the fact that such product (or inanimate object) was under such person’s care at the time of the injury. As a general rule, anyone who has the authority to use, control or operate the product can be held liable as a custodian.
The requirement relating to custody will not give rise to much difficulty in most cases since the custodian is usually both the owner and the “custodian” of the product. Most often, the owner has it in their custody at the time of the injury. The question can arise, however, as to who is liable in the case where the owner and the custodian of the product are two different people--e.g., where the item causing the damage has been borrowed or stolen.
Article 1242 only creates a presumption of liability of the custodian. Once the custodian is able to establish that they have lost the use, control, and ability to control the product, they no longer will be deemed to have custody of it, and the presumption of liability laid down in Article 1242 of the Civil Code will no longer apply.
Regarding “use,” it can be defined as “the control over the product in one’s own interest.” “Control” is the power to decide for what purposes the product will be used. “Ability to control” can be defined as “the ability to prevent the product from functioning improperly.”
Where the injury occurs during performance of a contract but is not the result of the breach of a general safety requirement. This is the case where a patient is injured during the use of a defective product by the surgeon.
Where there is no contractual relationship at all. This is the case, for example, where a customer is injured on the premises of a storeowner. In this case, the claimant cannot base his or her claim on contractual liability of the professional because no contract has been entered into.
Regarding the first bullet point noted above, it should be pointed out that the broad concept of contractual liability with respect to safety requirements, as adopted by case law, does not make it possible to clearly define the scope of contractual liability as opposed to tort liability.
Under tort law, a person injured by a product or any inanimate object has a cause of action against the wrongdoer under Article 1240 of the French Civil Code and/or the “custodian” of the inanimate object under Article 1242.
Causes of action against the wrongdoer under Article 1240 of the French Civil Code
To establish a claim against the wrongdoer under Article 1240 of the French Civil Code, the claimant has to prove fault, property damage and/or personal injury, and that the fault is the proximate cause of the injury. Failure to provide information regarding the precautions to be taken when using a hazardous product may be considered by the courts as fault. Failure to act can also constitute fault. For example, when faced with a known and scientifically identified danger, a manufacturer who does not take any action (such as conducting a recall) breaches its duty of care.
Under European and French regulatory requirements, a manufacturer can be liable, despite the fault of the victim, for failing to prevent a foreseeable risk of loss.Causes of action against the custodian of the product (or inanimate object) under Article 1242 of the French Civil Code
Under Article 1242 of the French Civil Code, liability can also be found against the “custodian” of a product for injury caused by it while under such person’s care. For liability to be established, the causal link between the product and the injury must be proven as well as the fact that such product (or inanimate object) was under such person’s care at the time of the injury. As a general rule, anyone who has the authority to use, control or operate the product can be held liable as a custodian.
The requirement relating to custody will not give rise to much difficulty in most cases since the custodian is usually both the owner and the “custodian” of the product. Most often, the owner has it in their custody at the time of the injury. The question can arise, however, as to who is liable in the case where the owner and the custodian of the product are two different people--e.g., where the item causing the damage has been borrowed or stolen.
Article 1242 only creates a presumption of liability of the custodian. Once the custodian is able to establish that they have lost the use, control, and ability to control the product, they no longer will be deemed to have custody of it, and the presumption of liability laid down in Article 1242 of the Civil Code will no longer apply.
Regarding “use,” it can be defined as “the control over the product in one’s own interest.” “Control” is the power to decide for what purposes the product will be used. “Ability to control” can be defined as “the ability to prevent the product from functioning improperly.”
[1] Under French law, a professional seller is someone who sells goods as part of its business activity.
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