(D) Causation and defences

A seller cannot escape liability under the garantie légale by showing that he was not at fault nor that the defect arose by circumstances beyond his control (force majeure), though a buyer’s contributory fault may reduce any award of damages. And unlike their approach to liability for the ‘deeds of things’,²⁴⁸ French courts have not appeared to use the requirement of causation between the defect and a claimant’s harm nor defences based on causation to temper the strictness of liability which the garantie imposes. This strictness remains central to the future role of the garantie légale in compensating death, personal injury and damage to property after implementation of the Product Liability Directive.²⁴⁹

(I) Proof of causation in general

In principle, a buyer must show that the defect caused his harm,²⁵⁰ but in keeping with the position as to the existence of a defect, the assessment of the possible ‘factual elements’ of causation is a matter for the juges du fond,²⁵¹ and in this they are often guided by experts,²⁵² who may draw inferences from circumstancial evidence and even presume that a proven defect on sale played a causal role in the buyer’s harm in the absence of some other more convincing explanation.²⁵³ Nevertheless, the juges du fond must explain how a defect they find was causally related to the claimant’s harm²⁵⁴ and should not impose liability on a seller where a buyer’s harm may have been caused by a number of circumstances, only one of which is tied to a defect in the property. So, (p.87) for example, in one case a company had bought a bottle of chlorine some 20 years before it exploded, injuring a number of people working in an adjacent factory.²⁵⁵ While the lower court accepted evidence showing that the bottle was not entirely satisfactory, it found that the explosion could have been caused by its overfilling, exposure to sunlight or by the corrosive effect of the acid over a long time. In these circumstances, the juges du fond were entitled to hold that the buyer had failed to show that any defect in the bottle had caused the explosion. As I shall explain, this relatively more cautious approach to the requirement of causal connection has long marked a difference with the practice of the French criminal courts.²⁵⁶

(II) Fault in the buyer

While courts can reduce or exclude an award for damages under the garantie légale on the ground of the buyers ‘fault’, they have rarely done so except where liability is based on the sellers failure to supply the appropriate information or warnings, following here their approach to obligations d’information,²⁵⁷ or where liability is based on the property’s contractual non-conformity.²⁵⁸ Although the Cour de cassation controls the nature of the behaviour which is capable of constituting fault on the part of the buyer for this purpose, as it does generally²⁵⁹ in practice it often leaves it to the lower courts,²⁶⁰ and they to their expert advisors.²⁶¹ Where such a ‘fault’ is found, a lower court may reduce the claimant’s damages to an extent which lies within its ‘sovereign power of assessment’.²⁶² By contrast, where a buyer’s own act is held to be both unforeseeable and unpreventable by the seller (and thereby constitutes force majeure), liability is extinguished.²⁶³

In French law, a buyer’s fault is relevant to a seller’s liability either in relation to the purchasing or to the use of the property.

As to ‘fault in purchasing’, on occasion the Cour de cassation has allowed a lower court to find a buyer at fault in going to the wrong class of seller and purchasing an inappropriately cheap product, given the importance of the job to which he wishes to put it.²⁶⁴ Other cases in this category are closely related to other aspects of liability. So, French courts sometimes prefer to hold that a buyer’s failure to detect a defect in the property which he has purchased constitutes ‘contributory fault’ on his part, rather than depriving the defect of its ‘hidden character’.²⁶⁵ Similarly, some jurists treat cases in which a buyer has ordered property to his own design or specification which then does not fulfill the buyer’s intended purpose as instances of fault in the buyer, going to the issue of causation, rather than on the basis that the property was not defective.²⁶⁶

(p.88) By contrast, the cases of buyers fault in the use of the property are closer to what a common lawyer would see as contributory negligence. Perhaps the clearest example is where a buyer fails to follow the instructions which accompany a product: here French courts have tended to exclude rather than reduce liability.²⁶⁷ In other cases, a buyer may simply have failed to show the care of a bon père de famille in using the product²⁶⁸ and here the courts are likely to reduce rather than exclude the sellers liability, their attitude depending on the relative knowledge or expertise of the buyer and seller,²⁶⁹ in both respects in keeping with their approach to breach of a sellers obligation d’information.²⁷⁰ Even so, where a buyers care falls below the standard expected of anyone, specialist or mere consumer, faute de la victime may be established. So, a car driver’s fault in driving too fast may reduce his damages for the consequences of an accident, partly caused by the vehicle’s defective steering.²⁷¹

Distinctions according to the degree of expertise or skill of the buyer may also be relevant in cases where a buyer has used a product for a purpose for which it is claimed that it was not intended. Here, it is said that a seller will not be liable where the buyer has put the thing sold to an abnormal use,²⁷² but what of an abnormal but forseeable use? At least in the context of the defects which have injured persons or other property, a French court may hold a seller under an obligation to warn the buyer against any foreseeable misuse of the product,²⁷³ but the distinction between normality and foreseeability is not discussed in the French texts.²⁷⁴

Sometimes a buyer’s failure to maintain or repair the property properly will be said by a seller to have contributed to his own harm. Here, a court may hold the failure to repair excusable or causally irrelevant (and the seller liable in full)²⁷⁵ or, conversely, that the defect in the property may have resulted from the buyer’s failure to repair after delivery (and the seller not liable).²⁷⁶ Sometimes, though, a court will find that a buyer has, by failing to remedy the defect, partly caused his own loss and so reduce the buyer’s award. So, for example, where a buyer of an electric iron continued to use it after realising that it had a malfunction, her damages for personal injuries when it exploded were reduced by a quarter.²⁷⁷ And where a buyer discovers a defect in the property and then resells it, without warning the sub-buyer, he will not be able to recover an indemnity from his own seller for any liabilities to the sub-buyer which he incurs as a result.²⁷⁸ But a buyer would appear to have no duty to check property for defects before re-sale and so any failure to do so cannot be the ground of a reduction of his claim for an indemnity from his own seller.²⁷⁹