24

Part  3 The tasks of tort law

I.  Compensatory function

1 / 64 All European civil law systems will agree that the law of tort is meant » to provide the victim with compensation for damage that has already been sustained «76. No sensible French jurist will contest this. Even in a case where tort law serves a preventive function, such as the landowner seeking compensation for the construction of a wall to avoid the high risk of a landslide created by the uphill neighbour having carried out unreasonable excavations, the court actually awards damages to repair damage already sustained: the reasonable expenditure is incurred for no other reason than the need to avoid imminent and serious danger77. Damage that appears hypothetical only should not be compensated, though French lower courts occasionally order the taking of preventive measures in such circumstances, making unwarranted reference to the precautionary principle78. Everyone agrees that » [ T ]he compensatory notion clearly expresses the purpose of tort law «79. This is ubiquitous in French tort law literature.

1 / 65 Under French law, compensation is due for any kind of damage, the Civil Code making no distinction regarding heads of damage, which therefore include pure economic loss and non-pecuniary damage ( dommage moral ). Compensation of the latter, however, is not easily accepted in French doctrine. In a country of Catholic culture, the idea of making money out of one’s tears ( battre monnaie avec ses larmes )80 is disturbing. Compensation of non-pecuniary damage is still criti-

76Basic Questions I, no 3 / 1, using the phrase » law of damages « as a translation of » Schaden­­ ersatzrecht «.

77Cass Civ 2, 15 May 2008, Bull Civ II, no 112, RTD Civ 2008, 679, observations P. Jourdain; JCP 2008, I, 186, no 1, observations P. Stoffel-Munck; D 2008, 2900, observations P. Brun / P. Jourdain;  O. Moréteau, France, in: H. Koziol / B.C. Steininger ( eds ), European Tort Law 2008 ( 2009 ) 264, nos 56–58.

78In recent years, lower courts ordered the removal of telephone relay antennas, also granting damages to compensate the anxiety due to a possible health risk: CA Versailles, 4 February 2009, D 2009, 499, commented by Moréteau in: Koziol / Steininger ( eds ), European Tort Law 2009, 198, nos 3–11. In recent rulings, the Tribunal des conflits ( TC ), when asked by the Court of Cassation to rule on a purely jurisdictional issue, ruled that ordinary courts cannot order the removal of duly authorized relay antennas, without violating the principle of the separation of powers: TC 14 May 2012, Bull TC nos 12–17, commented by On in: Oliphant / Steininger ( eds ), European Tort Law 2012, 229, nos 27–42.

79Basic Questions I, no 3 / 2.

80le Tourneau, Droit de la responsabilité civile et des contrats9 no 1553.

cised in contemporary doctrine81. Earlier on, Georges Ripert claimed that this was not compensation, but a form of private punishment of the perpetrator82. Despite continued doctrinal challenges83, a jurisprudente constante has developed in the Court of Cassation, since a leading case decided in 183384. The Court recently decided that a patient who had not been informed of the risk of impotence as a possible consequence of surgery ( prostate adenomectomy ) was eligible for compensation of non-pecuniary harm85. Though it is not permissible for courts to make open reference to unofficial tables, databases have been created, based on a study of court of appeal decisions, to help assess the cost of the loss of a mother, a child, or a sibling 86. The award of a lump sum is sometimes compared to a penalty87.

In a recent case, the Commercial Chamber of the Court of Cassation opened 1 / 66 the right to recover non-pecuniary damages to juridical persons88. The matter had

long been debated and the solution receives strong doctrinal approval89. Allegedly, it is possible to harm a juridical person in its essence rather than its assets ( dans son être et non dans son avoir )90. One of the doctrinal draft reforms of the law of obligations follows this erroneous trend91. Planiol and Ripert offer strong authority to the contrary: they wisely state that a juridical person cannot suffer and therefore cannot be a victim of non-pecuniary damage92. When courts offer such compensation, either they want to compensate pecuniary damage ( an economic loss,

81C. Atias, Philosophie du droit2 ( 2004 ) no 64.

82G. Ripert, La règle morale dans les obligations civiles ( 1947 ) nos 181 and 182.

83See also le Tourneau, Droit de la responsabilité civile et des contrats9 no 95; B. Beigner, L’honneur et le droit ( 1995 ) no 1605.

84Cour de cassation, Chambres réunies ( Cass Réun ) 25 June 1833, cited in le Tourneau, Droit de la responsabilité civile et des contrats9 no 1554.

85Cass Civ 1, 3 June 2010, no 09-13591, Bulletin des arrêts de la Cour de cassation ( Bull ) I no 128, D 2010, 1522 note P. Sargos; RTD Civ 2010, 571, observations P. Jourdain; Moréteau in: Koziol /  Steininger ( eds ), European Tort Law 2010, 175, nos 4–10.

86le Tourneau, Droit de la responsabilité civile et des contrats9 no 1555.

87Idem.

88Cour de cassation, Chambre commerciale ( Cass Com ) 15 May 2012, no 11-10278, Bull IV no 101, D 2012, 2285, note B. Dondero; JCP 2012, no 1224, observations C. Bloch; Moréteau in: Oliphant /  Steininger ( eds ), European Tort Law 2012, 229, nos 43–47. A couple who had been in the pizza business for decades sold the shares of their company to another. In violation of a non-com- petition clause stipulated in the agreement, the sellers created a business selling pizza in the same district. The buyers sued for damages, claiming compensation for both economic loss and non-pecuniary damage. The Court of Appeal judgment, denying that a corporate entity could suffer non-pecuniary harm, was quashed, the Court of Cassation holding that a juridical person may suffer non-pecuniary damage, though providing no reasoning or additional guidance.

89P. Malaurie / L. Aynès / P. Stoffel-Munck, Les obligations5 ( 2011 ) no 248.

90P. Stoffel-Munck, Le préjudice moral des personnes morales, Libre droit, Mélanges en l’honneur de Philippe le Tourneau ( 2008 ) 959, 967.

91Terré ( ed ), Pour une réforme du droit de la responsabilité civile art 68 and discussion at 223 f.

92M. Planiol / G. Ripert, Traité pratique de droit civil français, vol VI; P. Esmein, Obligations, Part I2 ( 1952 ) no 552.

actually ) that they are unable to assess, or they want to impose a non-criminal

penalty, camouflaged under the name of compensation of non-pecuniary damage93.

1 / 67 Though literature examined does not relate non-pecuniary damages to the seriousness of fault, the penalty theory seems to imply such a connection. This does not contradict the jurisprudential rule that the assessment of damages is to be made without regard to the seriousness of fault94 if one admits that the non-pecu- niary damage is greater in cases where the tortfeasor acted intentionally.

II.  Deterrence and continuation of a right

1 / 68 The deterrent function of civil liability is recognised in French tort law literature95. As Koziol puts it, » the threat of a duty to compensate in the event of damage being caused undoubtedly provides a general incentive to avoid inflicting damage «96. French authors agree that the deterrence function is secondary to compensation97, and they do not follow the tenets of law and economics on the issue: penalty rather than compensation is more apt at performing an efficient deterrence function. Muriel Fabre-Magnan’s pages discussing and challenging the law and economics approach, and her conclusion that figures cannot explain everything, that reality cannot be reduced to mathematical formulae is a good reflection of French scepticism98: the law and economics creed that human activity is driven by maximisation of wealth is over-simplistic and cannot explain everything. It is either ignored or rejected by most scholars99.

1 / 69 The fact that the widespread availability of third-party liability insurance reduces the deterrence function cannot be denied, but as Koziol observes, such inconvenience is easily mitigated by the appropriate use of a bonus-malus system100, mandatory in France in the context of automobile insurance101.

1 / 70 The notion of » continuation of a right « ( Rechtsfortsetzungsgedanke ) sees the injured right as surviving in a claim for compensation, meaning that the victim of

93Ibidem.

94le Tourneau, Droit de la responsabilité civile et des contrats9 no 2572.

95Viney, Introduction à la responsabilité3 no 40.

96Basic Questions I, no 3 / 4.

97Tunc, La sécurité routière, Esquisse d’une loi sur les accidents de la circulation ( 1966 ). Viney / Jourdain, Les conditions de la responsabilité3 no 965.

98Fabre-Magnan, Droit des obligations, Responsabilité civile et quasi-contrats2 44–47.

99There is no entry on the subject in G. Viney, Introduction à la responsabilité3 ( 2008 ).

100Basic Questions I, no 3 / 7.

101Art A121-1 Code des assurances; see also Viney, Introduction à la responsabilité3 no 64 for critical comments on the French implementation.

property damage is to be compensated, at the minimum, for the objective market value, even if the victim subjectively is making no use of the property at the moment when the damage occurs102. The fact that this contributes to the function of deterrence103 seems undisputable.

III.  Penalty

Traditionally important in Roman law and ancient law, and somehow surviving in 1 / 71 the context of fault-based liability, the punitive function has lost ground in mod-

ern days, with the development of strict liability and the collectivisation of risks. Remnants are to be seen where international instruments cap the amount of compensation payable to the victim or shield a party from all liability unless there has been intentional fault or gross negligence104. One still sees it at play in the case of non-performance of contractual obligations, the defaulting party in bad faith being obliged to compensate not only the foreseeable damage but also the unforeseeable, which does not mean, however, that the amount of damages will be disconnected from proven harm105.

102le Tourneau, Droit de la responsabilité civile et des contrats9 nos 2524–2533.

103Basic Questions I, no 3 / 8.

104See in the context of oil-pollution ( the sinking of supertanker Erika ), Cass Crim, 25 September 2012, no 10-82938, Bull Crim no 198, D 2012, 2711, note P. Delebecque; RTD Civ 2013, 119, observations P. Jourdain. Commented by Moréteau in: Oliphant / Steininger ( eds ), European Tort Law 2012, 229, nos 48–55. The International Convention on Civil Liability for Oil Pollution Damage [ art III ( 4 ) ( c ) ] places liability on the carrier, and not on the owners of the cargo. As a charterer, the oil company is not liable » unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. «

105Art 1150 Civil Code.