(P.42) (b) The definition of la faute délictuelle

I have already drawn attention both to the breadth of provisions in articles 1382 and 1383 of the Civil Code concerning liability for delictual fault and to their absence of restriction either as to the type of conduct included (beyond that it constitutes une faute) or the type of harm recoverable (any harm).¹¹ Nor do these provisions tell us very much about French law’s understanding of la faute itself, except to the extent that it makes clear that it may be seen in a lack of care as well as in malice or intention and that no formal distinction is drawn according to the seriousness of a defendants fault between faute intentionnel (‘intentional fault’), faute lourde (‘gross fault’) and Jaute légère (‘ordinary fault’).

But what does la faute mean? While Planiol famously suggested that fault should be defined as the non-performance of a pre-existing legal duty,¹² this definition has not generally found favour, being considered inaccurate (there being no need for a claimant to establish any such duty), unnecessary and unhelpful.¹³ Instead, many French jurists looking for a general definition of la faute délictuelle end up by using such very broad expressions as ‘abnormal behaviour’ or simply ‘failing to do what one ought to do’,¹⁴ definitions which are helpful only to the extent to which they emphasise how open the question of fault may be. But while there is certainly no shortage in French doctrine of discussions of the concept of la faute, much of their focus and concern appears very alien to English law’s concern with the analysis of negligence in the sense of a lack of reasonable care in the circumstances and one looks for any equivalent of such an analysis in vain. In my view, there are four reasons for this.

First, doctrinal debate as to the conception of la faute in France has long been dominated by an underlying argument as to whether or not faute does or should stand as the basis of all civil liability (or rather, responsabilité) delictual or contractual, special or general. In this debate, a central focus of attention has been the question whether or not the test for faute is ‘subjective’ (assessed ‘in concretd’, by reference to a moral judgment as to what the particular defendant was in a position to do)¹⁵ or ‘objective’ (assessed ‘in abstractd’ by reference to a standard such as the bon père de famille). A key context for argument about this question was the liability of the mentally incompetent: should their ‘fault’ be judged by reference to their own capacities or by reference to those of a fully competent person? While particular questions relating to this ‘subjective/objective’ debate have been settled either by legislation (as in the case of the (p.43) mentally incompetent)¹⁶ or by settled judicial practice (as in the case of those with special skills¹⁷ or children¹⁸) and while the vast majority have adopted an objective position at least as regards non-intentional fault, the nature of this debate has distracted attention away from any fuller exploration of the content of imprudence itself. While jurists may sometimes state that ‘[non-intentional] fault consists sometimes in not having foreseen the possibility of harm, sometimes, if it has been foreseen, in not having taken the necessary precautions to avoid its occurrence’,¹⁹ they do not develop further discussion of these elements or their possible balancing. For a traditionally-minded French lawyer, the common law’s balancing of cost against benefit would have the ring of economic pragmatism about it, a ring out of tune both with traditional Catholic and with Enlightenment individualistic assumptions of what morality means in the context of responsibility for personal behaviour.²⁰ Some French lawyers were concerned with the proper allocation of risk between the perpetrators and the victims of accidents, but their ideas were seen as essentially hostile to arguments based on fault; in such a milieu, it is unsurprising that an aspect of fault (imprudence) should not be explained in terms of the avoidance of the risk of harm. It may well also be that the ‘superabundance and diversity’ of opinions in la doctrine helps to explain the courts ‘timidity’ in coming to a universal definition of civil fault themselves.²¹

A second reason for the very different treatment of delictual fault in French doctrine from analyses of English negligence lies in the former’s role within the system of the substantive law of liability. As I have said, the ambit of liability for la faute délictuelle is far broader than that imposed by the tort of negligence even in the hands of the most expansive English judge. In the absence of defined areas of application or a controlling concept such as the English ‘duty of care’ in the tort of negligence, la faute is forced to play a number of roles, setting out not merely the ‘mental’ element (l’élément moral) necessary for the imposition of liability (intention or negligence) but at least in some types of case also the situations where this should give rise to liability (a ‘wrongfulness’ aspect). French law has in effect had to invent the particularity of treatment usually associated with those legal systems which recognize only ‘special delicts’ or a law of torts under the umbrella of the general principle of liability for fault found (p.44) in the Civil Code. So, for example, while imprudence may count as delictual fault, interference by a third party in the performance of a contract will not give rise to liability in that third party in the absence of une faute intentionelle: in this situation, lack of care does not supply the requisite fault element.²² Having said this, in French law these are islands of special treatment in a sea of liability, rather than (as in the English law of torts) islands of liability in a sea of immunity.²³

It is this broader functional context that explains in part the Cour de cassation’s view that while it is for the juges du fond to find the facts (what happened), it is for itself to control their classification (as properly faute or not).²⁴ Without such a power of control, the Cour de cassation would not be in a position to use la faute as a technique for holding certain types of fault necessary for liability in particular contexts.

However, this division of function between the juges du fond and Cour de cassation provides the third reason for the lack of exploration of what fault means by the courts. For while formally the Cour de cassation reserves to itself a power of review of the characterization of the defendants behaviour as une faute and requires the juges du fond to explain their decisions on la faute so as to allow this control,²⁵ this still leaves its evaluation on the facts in large measure to the juges du fond, especially in the context of imprudence?²⁶ As Carbonnier puts it:

Fault is no more the sum of physical, psychological and social elements than life is the sum of oxygen, hydrogen, carbon etc. There must be something more: a spontaneous and intuitive judgment by the court seen as morally self-evident. Nowhere more than in relation to fault do the judges proceed by way of a judgment based on fairness [èquitè] condemning or pardoning in the name of society…The Cour de cassation’s assessment is a global one, acting as a court of review of excesses of fairness. Rather than ensuring that the law is respected, its role here appears to be to prevent (in the interest, most often, why shouldn’t one say it? of insurance companies and parties with deep pockets) an over-charitable fairness, which would let the evaluation of needs and resources come before consideration of the morality of the case.²⁷

So, the Cour de cassation sometimes chooses to intervene in the decision making of the lower courts on la faute délictuelle, not merely where it can identify a contradiction in the lower court’s position,²⁸ but also where it takes the view that the facts relied on (p.45) by the lower court should not be seen as une faute.²⁹ But this ‘considerable role’ which ‘marries strangely’ with its function as a court of review, has not led to a true definition of faute civile: ‘the supreme court [is content]…in the majority of cases to decide disputes on a case by case basis without formulating any guidelines of a general nature.’³⁰ Moreover, while we see the occasional re-evaluation in terms of la faute by the Cour de cassation of the facts as found below, we do not see the reassessment of the evidence which was put before the court below as to the issue of faute. Indeed while the arrêt of a lower court must set out the factual circumstances of the case, the courts do not see it as part of their function in the arrêt to explain why they rely on this or that piece of evidence rather than on another: the court refers to the competing claims and allegations of the parties, and then simply announces its view of the facts and their legal significance. Often complex factual and especially technical issues are not discussed in the judgment, but are instead taken from the report of judicially appointed experts as a given.³¹ For some authors the breadth of ‘appreciation’ which this gives to the juges du fond allows them to qualify the ‘objective nature’ of their assessment of non-intentional fault and take into account personal factors affecting the individual defendant, such as his physical abilities or age.³²

Fourthly, while la jurisprudence is immensely important in French law (and particularly in the law of civil responsibility with its mere handful of codal provisions), there is no sense in which a particular decision of a higher court or even the settled practice of a higher court binds a lower court.³³ This absence of a binding force of previous decisions similar to the English doctrine of precedent and its concomitant doctrine of ratio decidendi, means that French lawyers look at their jurisprudence with different eyes than an English lawyer looks at case law. French lawyers look at affirmations of principle, the interpretation of legislation in question and the general context, but do not see the same sort of need to connect the facts of the case to the law as is felt in England. In my view, one consequence of this is that French lawyers do not tend to look for patterns in the decision making of the courts which then gradually attract a degree of legal force: there is much less tendency towards the juridification of facts.³⁴

On the other hand, there is one particular feature of French understanding of delictual fault which illustrates very clearly its difference from the English conception of negligence. For while French lawyers reject the need for any breach of a legal, regulatory or professional duty to found une faute civile, they accept that breach of such a duty will provide une faute civile so as to provide a basis for civil liability.³⁵ This means, first, that the commission of any criminal offence itself constitutes a civil fault so as to give rise to liability in damages for any harm which it causes, even as regards criminal offences which do not themselves require any negligence, being committed by a person’s mere ‘physical’ action or failure to act:³⁶ the commission of an ‘offence of strict (p.46) liability’ (une infraction purement matérielle) can constitute une faute civile.³⁷ Furthermore, there is no need for a duty to be contained in legislation or sanctioned by the criminal law for its breach to constitute in itself a civil fault: ‘any breaking of an explicit mandatory rule is in itself illicit and therefore fautif, without it being necessary to find negligence, imprudence, lack of care, or any deficiency of behaviour whatsoever in the person in question’.³⁸ This means that breach of professional duties or even rules of a game constitute ‘fault’ so as to give rise to liability in damages for any harm that it causes.³⁹ On the other hand, the performance of duties contained in legislation does not mean that some further fault cannot be found, as a defendant may still be at fault for failing to abide by a customary standard.⁴⁰