(II) Force majeure and contributory fault149

While a gardien cannot escape liability simply by showing that he was not at fault, he can do so by showing force majeure and he may reduce or even exclude his liability by establishing the claimant’s contributory fault. Both these defences have proven important, to the extent that some jurists have argued that where the courts have interpreted them broadly, liability is really based on something not far from fault.

In the Civil Code, force majeure appears as a defence to liability in damages for non-performance of a contractual obligation, where it was traditionally held to consist of some event or act of either the claimant or a third party which was unforeseeable, (p.58) could not be prevented and was not otherwise ‘imputable’ to the debtor of the contractual obligation.¹⁵⁰ Nevertheless, when in 1896 the Cour de cassation first recognised article 1384 alinéa 1 as an independent source of liability, it accepted that force majeure could be a defence,¹⁵¹ including for this purpose cases where the event was a human act (fait d’un tiers) or natural occurrence (force majeure in a narrow sense). However, having established that a defect in the thing was not a condition of liability under article 1384 alinéa 1, the courts sought to avoid allowing the presence of an unforeseeable and unpreventable defect as a means of escaping liability and so they added to the definition of force majeure a requirement that any occurrence or condition must be ‘exterior to the thing’.¹⁵² As a result, a defect in the thing itself ‘is included within the risks for which the gardien assumes liability towards third parties’.¹⁵³

More generally, however, with the movement away from the idea of liability for risk which can be discerned in the later 1930s and 1940s, French courts were more ready to find force majeure, and this was reflected in their acceptance that it was enough if the event or act was normally or reasonably unforeseeable.¹⁵⁴ This was particularly noticeable as regards the liability of a gardien of a motor vehicle for accidents precipitated by external factors, such as a dog running to the road¹⁵⁵ or oil spilt on the road and not visible.¹⁵⁶ Even the bad driving of other road users was on occasion held to be force majeure,¹⁵⁷ though it was more commonly treated as a concurrent cause.¹⁵⁸ A claimant’s own ‘behaviour’ could also be held to be a force majeure, notably where, for whatever reason and quite apart from any question of contributory fault on his part, he was lying prone in the road.¹⁵⁹

In the result, although in some cases proof of force majeure may look very close to proof of an absence of fault, the two are not the same: a gardien cannot simply rely on his own lack of fault, but must point to some other cause, for which he is not responsible and which bears the characteristics of force majeure. For this purpose, the role of the juges du fond in determining whether an event or act is ‘unforseeable and unpreventable’ allows them to nuance their decision so as to fit their view of the facts as a whole including the comparative fault of the claimant and defendant.¹⁶⁰ On the other hand, where the alleged force majeure consists of an act of a third party, especially where a third party is also gardien of a thing, the courts have been more ready to (p.59) exclude force majeure and instead hold the two contributors to the injury jointly liable, so as to allow recovery from either in full.

The other defence for a gardien of a thing is to show that an act of the claimant contributed to his own harm. Where the claimant’s act constitutes force majeure then it is a complete defence, but otherwise, his contributory fault was long held capable of reducing the damages recoverable against the gardien to an extent within the ‘sovereign power of assessment’ of the juges du fond.¹⁶¹ This was much criticised.¹⁶² So, for Carbonnier:

By detaching the defence of contributory fault of a victim from the notion of force majeure and applying it to any type of fault, the Cour de cassation has encouraged the juges du fond in their long-held tendency to slice the cake in two as soon as they cannot otherwise see a clear result—and, as a consequence, to encourage in legal advisers their propensity to put in as a matter of form against all claims an allegation that the defendant is only partly responsible. This itself has led claimants, worn down by disputes, to settle on conditions imposed on them by the other side’s insurers. The liability for the fait des choses was thus emptied of the quasi-automatic character which under Jand’heur ensured its considerable effectiveness.¹⁶³

This sort of criticism did not fall on deaf ears and in 1981 the French Government set up a working group under the auspices of the new Minister of Justice, Badinter, on the reform of the law relating to road accident injuries,¹⁶⁴ but before it could reach any decision, the Cour de cassation in the arrêt Desmares changed its approach, asserting that an injured party’s behaviour could affect a liability under article 1384 alinéa 1 only where it qualified as force majeure where it excluded liability.¹⁶⁵ This change was made in the context of a traffic accident injuring a pedestrian, where criticism of its earlier attitude was sharpest, but a year later the Cour de cassation applied it to cases outside this context.¹⁶⁶

However, the confusion and contradictions to which this jurisprudence continued to give rise in the lower courts prompted the legislature to intervene swiftly in respect of road traffic accidents in the loi of 5 July 1985,¹⁶⁷ which then triggered a further revirement outside its context, the Cour de cassation renouncing its approach in Desmares and declaring that fault in an injured party may reduce a claimant’s damages whether or not it was unforseeable and unpreventable.¹⁶⁸ This jurisprudence remains current.¹⁶⁹ With this history, it is unsurprising that the proper ambit of this defence was one of a number of points of debate in relation to implementation of the Product Liability Directive in France.¹⁷⁰