2. The Restricted Significance of Delictual Fault for Liability for Products

The extraordinary generality of liability under articles 1382 and 1383 of the Civil Code would suggest that it would have been important in governing liability for defective products and indeed it has been, but not in ways which would suggest themselves readily to the common lawyer. As I have previously indicated, this is because many of the cases of harm caused by products are in French law dealt with either by liability for the deeds of things, which is more attractive to a claimant, or by contractual liability, which is exclusive within its own domain. Liability for delictual fault, therefore, is significant only in the gaps between these two ‘special’ liabilities.

As I shall explain, where a person has bought property, he enjoys a number of different contractual actions in respect of harm caused by its defects, not merely against his own contractor, the seller, but against any other person higher up the chain of distribution;⁸⁷ and where a buyer possesses a contractual claim he may not instead claim on the basis of delictual fault owing to the operation of the rule of non-cumul.⁸⁸ Secondly, many people who enjoy the use of a product which has caused them injury or loss do so under a contract (for example, of hire or for the provision of services) and again where this is the case they are likely to enjoy a contractual claim against the provider of (p.51) the product, again excluding recourse to delict.⁸⁹ On the other hand, claims for damages for personal injuries and damage to property caused to those who have neither bought the product nor enjoy it under a contract are usually brought against its gardien under article 1384 aliéna 1 of the Code, which does not require any formal proof of fault, rather than liability for proven fault under article 1383.⁹⁰ The relationship between these two liabilities will be examined in more detail in the following section as in the modern law here article 1384 alinéa 1 creates the larger category.⁹¹

Where does this leave liability for delictual fault?

First, delictual fault remains important as the basis for liability for the compensation of personal injuries and death where claims are brought by victims of offences before the criminal courts as parties civiles. This is because French lawyers have long considered that the commission of any offence, whatever its mens rea and of whatever type itself constitutes delictual fault.⁹² Both the specific and the general regulation of product safety and product quality by the criminal law have been used as the basis for a claim for damages for the victims of these crimes. Moreover, there are practical and procedural reasons why the victims of such product crimes should wish to claim before the criminal rather than civil courts.⁹³ While more recently, this relatively simple picture has become more complex, delictual fault remains the legal basis for the imposition of civil liability where this is tied to a criminal offence. I shall return to this topic in Chapter 14.

Secondly, sometimes a person who has suffered harm caused by a product may prefer not to sue its gardien or any person with whom he is in contractual relations but instead go against some other, perhaps more substantial, defendant, notably the product’s manufacturer claiming the latter’s delictual fault.⁹⁴ In this situation, as early as the 1970s French courts appeared to adopt a very particular interpretation of delictual fault, holding it established in a manufacturer (though apparently not in a mere supplier) merely by the act of putting a defective product onto the market.⁹⁵ Some older cases concern, for example, the victim of a road accident who chooses to sue the manufacturer of the car whose faulty brakes caused the accident, a choice possibly made because the driver was uninsured.⁹⁶ Other cases in which a claimant has relied on delictual fault seem to be based on a desire to avoid the complications to which the definition of la garde can give rise, in particular, its ‘dualist division’.⁹⁷ While in principle delictual fault can be relied on in this way to sanction design as well as manufacturing defects and obligations to warn or to inform against a manufacturer,⁹⁸ by comparison (p.52) to the incidence of cases based on contract or liability under article 1384 alinéa 1 it has not been very commonly invoked. Moreover, the continuing tendency of the domain of contract to expand beyond the parties ensures that the range of the potential application of delict is to the same degree reduced. It is for this reason that those cases of delictual liability for fault which remain in relation to products will be considered in the context of the particular contractual categories which may concern liability for things, as the ‘special law of contract’ increasingly ousts the droit commun of delict.⁹⁹

Thirdly, while generally in French law delictual fault has retained its importance in relation to the compensation of pure economic loss, this is not as true as regards liability for products, for most of the economic losses caused by products are due to their defectiveness and are suffered by the person who needs as a result to repair or replace the product. In the vast majority of this sort of case the person who suffers a loss of this sort will possess a contractual action for this purpose (and, as ever, rely on this alone as against any co-contractor). On the other hand, where economic losses are caused by a product’s position (for example, blocking a highway and causing delays to its business users), then delict, whether article 1382 or 1384 alinéa 1, may indeed apply.¹⁰⁰