4. The Time Element

The periods within which particular types of claim must be brought have had a significant effect on their attractiveness and, indeed, in French law have often been a reason for the acceptance by the ordinary courts of a different analysis so as to avoid what they see as too short a period.

The present position in private law distinguishes broadly between general periods of prescription of rights and special periods of prescription or délais within which a claim must be brought. Although there is a general prescription rule of 30 years which in principle governs contractual rights, this does not apply to contracts made between commerçants (traders as defined by commercial law) or between commerçants and non-commerçants, whoever bears the obligation,¹³⁸ where instead a period of 10 years applies.¹³⁹ In the case of claims for damages for non-performance of a contract, the prescription runs from the date of the event giving rise to the right, such as the date of the accident, or the manifestation of the damage.¹⁴⁰ Since 1985, these rules have not applied to delictual liability where prescription is always 10 years from the date of the ‘manifestation or aggravation’ of the harm.¹⁴¹ This means that generally there is no difference in the time period between contract and delict.

(p.35) However, French law possesses many special periods within which a claim must be brought in respect of particular contractual liabilities. Of these, in this book the bref délai which governs the seller’s classical liability for latent defects is very prominent, both in its application and in its avoidance: it is described as ‘short’ but may allow a claim to be brought many years after the contract is made and performed.¹⁴² Other special periods apply to claims against builders (where they differ according to the seriousness and nature of the defect) and these differ from the general contractual position in their starting point as well as in the period set.¹⁴³

Claims for damages under French administrative law also have their own special time periods. First, a claimant who has applied to the administration for compensation and been refused must initiate proceedings within two months.¹⁴⁴ Secondly, in principle he must bring any claim against the administration within four years of the first day of the year following that in which his rights arose.¹⁴⁵ As I shall explain, these two periods together (and in combination with other factors) have had a major effect on the practical impact of the administrative liabilities which the Conseil d’Etat has in principle recognised.

5. The Significance of Insurance, Social Security and Fonds de Garantie

French private lawyers accept that the development of the rules of civil liability have been influenced by the practice of insurance and, in particular, liability insurance, and they have long realised that this has led to a decline in individual responsibility (for faute) and the expansion of liabilities sans faute.¹⁴⁶ Indeed, some changes (particularly but not exclusively affecting those in business¹⁴⁷) could not have been envisaged without the development of liability insurance. The relationship between liability insurance and the development of civil liability has worked both ways: sometimes the courts have been willing to impose a very extensive liability on a particular class of defendant because that class generally insures against liability already, as was the case in the arrêt Jand’heur itself in relation to motor accidents,¹⁴⁸ whereas at other times a class of defendant takes up a practice of insurance after a change in law makes it seem necessary.¹⁴⁹ Moreover, it would seem that, even though formally irrelevant, juges du fond (the courts of first instance and of appeal¹⁵⁰) do take into account the fact that the defendant actually happens to be insured in their decision on questions of liability,¹⁵¹ though the extent to which they do so is difficult to assess given that so many important issues are left to their ‘sovereign power of assessment’.¹⁵²

Moreover, French law has increasingly resorted to imposing a duty on particular categories of persons to insure themselves against liability. The first example of this (p.36) was as regards third party liability in motor vehicle accidents, which was made compulsory in 1958, a year after legislation had set this area of liability on the same legal basis whether the vehicle was private or administrative.¹⁵³ More recent examples are to be found particularly in the areas of transport, professional liabilities and the leisure industry.¹⁵⁴ However, there are important exceptions to this: thus, while builders must insure against the strict liabilities which they bear,¹⁵⁵ a commercial seller or manufacturer does not have to insure against the liabilities which may arise in respect of their products.

Of course, many businesses which risk burdensome liabilities do take out insurance even though it is not compulsory. There are standard types of liability insurance, for example, ‘assurance R.C. [responsabilité civile] du chef d’entreprise’ and ‘assurance R.C. produits’. In the case of private individuals, the existence of liability in the Civil Code of parental liability for children and the development of liability on gardiens under article 1384 aliéna 1, which applies equally to private individuals as to businesses, has led to the existence of a standard policy for heads of households (known as assurance R.C. ‘père de famille’),¹⁵⁶ though this is often included in a more general insurance policy, notably ‘assurance multirisque-habitation.’¹⁵⁷ Of course, these insurance policies are not free nor are they unlimited in the sums against which they insure, nevertheless in many cases the practice of insurance in France has evolved to protect potential defendants, but with the concomitant effect that claimants are more likely to achieve a satisfied award.¹⁵⁸

While the most conspicuous area of influence of liability insurance has been in the area of civil liability, it can be seen elsewhere. So, while insurance cannot cover a person’s liability to pay a fine, it may cover his liability to pay compensation to the victim of crime claiming in a criminal court as partie civile: indeed, a defendant’s liability insurers may be party to the proceedings.¹⁵⁹ As regards administrative liability, a distinction must be made between the State itself (which acts as its own insurer and does not enter contracts for this purpose) and other public bodies, many of which have turned to insurance to cover their increasingly extensive liabilities.¹⁶⁰ This has been particularly the case as regards the smallest category of local authorities, the communes, for some of which the imposition of liability for an accident causing personal injuries or death may otherwise represent a significant proportion of its annual budget.¹⁶¹ Generally, (p.37) however, French public lawyers have not seen liability insurance as a very significant influence on the development of the rules of administrative liability. Rather, they have instead seen the imposition of administrative liability (especially when sans faute) as itself a form of insurance.¹⁶²

However, as I shall explain, recent experience in France has led to a realisation that the existence of liability insurance is not necessarily a full answer to the imposition of strict or otherwise burdensome liabilities. For when in 2002 legislation created a new set of rules for liability in respect of both public and private health care and an obligation to insure against this liability on those medical practitioners and institutions which could bear liability (with the exception of the State itself), within months further legislation had to be rushed through in order to ‘reassure’ insurers sufficiently to enter or renew their contracts with a sizeable number of health care providers by shifting some of the risks to a publicly financed fund.¹⁶³

While coverage of liability by insurance usually removes the need for either the victim or defendant to look elsewhere for compensation, in principle an insurer held liable may claim contribution from any other person also liable for the victim’s harm,¹⁶⁴ even where an insurer has been held liable under the rules of private law and claims recourse against the State under administrative law.¹⁶⁵ This recourse is generally founded on the idea of subrogation, the insurer taking over whatever rights the primary victim had against such other persons.¹⁶⁶ Generally, the effect of subrogation is that the insurer’s claim follows the rules incidental to the notional claim of the primary claimant, including as to prescription and competent jurisdiction, with the exception that an insurer of a defendant may not claim before a criminal court as subrogated to the rights of any possible partie civile,¹⁶⁷ even though insurers are otherwise able to become party to civil proceedings before criminal courts.¹⁶⁸ However, the insurer’s recourse cannot exceed either the amount which it has itself actually paid out under the policy or the amount for which the other person responsible is ultimately liable.¹⁶⁹ So, for example, if A is the insurer of B, who is liable to C (the primary claimant) for compensation of 1000 Euros, A may recover an amount against D (a person also liable for C’s harm) to the extent to which the court considers that D is responsible to C as compared to B’s responsibility to C.

Personal or first party indemnity insurance has been available in France since the nineteenth century, but its relevance for a claim for damages depends on the nature of the loss. In the case of damage to property, any payments made to the primary claimant by his insurer are considered to be indemnitaire and therefore reduce pro rata any claim which he may make against the defendant. This does not reduce a defendant’s overall liability, but instead transfers it to the primary claimant’s insurer by way of subrogation, (p.38) whose claim for recourse follows the same pattern as regards the position of the liability insurer.¹⁷⁰ On the other hand, in the case of first party insurance against personal injury or death, any payments made by an insurer to the assured (the would-be primary claimant) do not affect any right to recover against a person potentially liable: the payments are said to be forfaitaires unless the contract provides the contrary, with the result that the insurer has no right to recover these payments against the defendant.¹⁷¹

Social security and fonds de garantie (special compensation funds) have been very important in France in effecting compensation for personal injuries,¹⁷² but at least since 1985 in law their incidence does not reduce the potential liability of someone whether in the law of delict or contract.¹⁷³ For French law allows the bodies which administer and make the various types of social security payment (in particular, Caisses de sécurité sociale) to reclaim these amounts from anyone civilly liable to their recipient on the basis of subrogation to the rights of the primary victim.¹⁷⁴ These tiers payeurs can take advantage of any liability in a civilly liable defendant, apart from that which is attributable to compensation of a personal character.¹⁷⁵