1. Defining and Finding Delictual Fault (a) The institutional context

The key element of this setting is the division of function between the lower courts (courts of first instance and cours d’appel) which are together known as the (p.41) juges du fond (courts deciding on the merits on the basis of both fact and law) and the Cour de cassation. While there is a system of appeals from decisions of first instance to the cours d’appel, the latter’s judgments are subject only to pourvoi en cassation (‘application for quashing’) to the Cour de cassation. The starting point for understanding the relative roles of the Cour de cassation and the juges du fond is that the Cour de cassation is the ‘guardian of the law’ and in principle, therefore, is concerned with ensuring the proper application of the law to facts by the lower courts throughout France. The importance of this purpose and of citizens receiving justice according to the law means that French litigants have both a right of appeal (by way of the re-opening of issues appealed as a matter of fact and law)⁵ and also a right to apply to the Cour de cassation to ask it to see the law properly applied by the juges du fond.⁶ So, on dealing with a pourvoi en cassation, the Cour cassation does not re-decide cases submitted to it having corrected the legal rules to be applied⁷ and certainly does not re-assess evidence or re-open issues of fact; rather it reviews the decision below and, if this was defective, ‘quashes’ it, sending the case back to a lower court to make any new factual findings or ‘assessments’ of these facts as necessary.⁸ From this perspective, the Cour de cassation is a court of review of the legitimacy of the decisions of the lower courts subjected to its control.

The importance of this system of cassation for an understanding of French private law cannot be overestimated. For it means that all propositions of private law have to be analysed so as to distinguish between issues or aspects of issues to be treated as ones of fact for the ‘sovereign power of assessment’ (pouvoir souverain d’appréciation) of the juges du fond and of law for the control of the Cour de cassation. And while modern legislation occasionally makes clear that in coming to a particular decision (or in exercising a power of assessment) the lower courts have a ‘sovereign power’, for the most part it is the Cour de cassation itself which determines which propositions fall within its control: it intervenes on grounds, in ways and to an extent of which it is itself the master. Thus, whole tracts of the legal landscape (or what to an English lawyer would be the legal landscape) are all but abandoned by the Cour de cassation to the lower courts,⁹ while in other places, the Cour de cassation is careful to restrict their room for manoeuvre with rules of law whose non-observance will attract its intervention. In the result, it is one of the most salient but also one of the most frustrating aspects of French private law that many issues are decided by the lower courts behind this impenetrable veil of their ‘sovereign power of assessment’. This division of function between the juges du fond and Cour de cassation is of singular importance both as regards our present concern with determining the issue of delictual fault, and also with other key concepts such as ‘defect’ in the law of sale.¹⁰