Introduction to the Private and Public Laws of Liability in France simon whittaker

DOI:10.1093/acprof:oso/9780198256137.003.0002

Abstract and Keywords

French law is famous for the sharpness with which it draws the distinction between private law and public (and particularly administrative) law, revealed at the level of the courts’ jurisdiction, as well as at the levels of substantive law and legal procedure. The French law of liability demonstrates many of the key features of this division between administrative and civil, public and private. This chapter outlines the very basic features of the regimes of liability, notes the influence of liability insurance in their development, and outlines how insurers and others who pay compensation to primary claimants may themselves have a claim for an indemnity in respect of these payments. These latter features are important in forming an understanding of how liability is channelled in the system.

Keywords:   French law, private law, public law, liability law, liability insurance, compensation

French law is famous for the sharpness with which it draws the distinction between private law and public (and particularly administrative) law, revealed at the level of the courts’ jurisdiction, as well as at the levels of substantive law and legal procedure.¹ For, the jurisdictional divide between the ‘ordinary courts’ (the ordre judiciaire, at the apex of which is the Cour de cassation) and the administrative courts (the ordre administratif, at the apex of which is the Conseil d’Etat) has made it necessary for French lawyers to construct criteria for the distribution of cases between the ‘civil’ and ‘administrative’. In general, French law allocates cases between these two jurisdictions by reference to the criterion of the relationship of the defendant’s activities to the ‘public service’ (le service public), the courts combining for this purpose both institutional elements (whether or not a party is a public body) and functional elements, that is the relation of a party’s activities to the ‘public service’ itself.² However, in other cases, either special legislation or the courts have constructed particular rules for the allocation of cases between the two jurisdictions which do not conform to these general criteria, for example, in relation to motor vehicle accidents or harm caused by ‘public works’.³ While the jurisdictional allocation of cases typically also determines the substantive law to be applied to the case, this is not universally true⁴ and exceptionally the ordinary courts apply administrative legal principle to the cases before them, as in the case of liability in respect of the police judiciaire.⁵

The French law of liability demonstrates many of the key features of this wider division between administrative and civil, public and private. Indeed, the arrêt Blanco of 1873,⁶ which established the distinct and separate (‘autonomous’) nature of administrative law did so in this very context; but the fact that Blanco involved a traffic accident, whose perpetrator was a member of the administration acting in the course (p.20) of his duties, also shows that some of the cases which have attracted the jurisdiction of the administrative courts and the application of administrative law do not involve the exercise of special public powers or consideration of the legitimacy of administrative action. This means that some factually similar categories of case have stretched across the public and private jurisdictions, and have led to different applicable rules and results, as in the case of medical liability, road accidents and accidents on another person’s property.⁷ Sometimes, these substantive differences result from a different vision in the Conseil d’Etat as to the relevant principles or considerations to be applied in the public context, for example, as regards medical liability where for long it imposed liability only on the ground of faute lourde (‘gross fault’) when the ordinary courts imposed liability on the ground of faute simple (‘ordinary fault’).⁸ However, the differences go deeper than the level of substantive legal argument, for not merely do administrative judges reject the regimes of liability provided by the Civil Code: there remains a genuine intellectual and cultural divide between public and private lawyers in France, perpetuated both by the training and career paths of judges and by the interests and teaching practices of university jurists.⁹

Having said this, differences between the two sets of rules of civil liability should not be exaggerated. So while it is true that the Civil Code does not govern administrative liability, in the absence of such a code and, indeed of much legislation, the administrative courts are sometimes ‘inspired’ by the rules or ideas of private law. This is universally acknowledged as regards the administrative law of contract, where the core ideas of private law are qualified or recast according to the perceived needs of the public interest;¹⁰ conversely, some jurists have seen the private law of contract as having undergone a process of ‘publicisation’.¹¹ The connections between private and public law are less widely acknowledged as regards administrative extra-contractual liability.¹² In some cases, it is true, the connections are direct and obvious, for example, in the developments in medical liability before it was placed (or apparently placed) on a unified basis.¹³ Moreover, since the closing years of the nineteenth century, private and public lawyers have taken as their starting point an assumption that in general ‘fault’ is the foundation of liability for harm, but that exceptions should be made, in particular on the ground that the defendant’s action or activities created a special risk: in both regimes of liability, liabilities are based on la faute, some arise sans faute. However, this similarity in fundamental approach can itself be misleading as the understanding of what constitutes ‘fault’ changes significantly under the two regimes (p.21) and with it, of course, the understanding of liability ‘without fault’¹⁴ So while ‘illegality’ is equated with ‘fault’ by both the administrative and the ordinary courts, the ‘illegality’ in question differs, the administrative lawyer’s understanding resting on breach of administrative principle, the civil lawyer’s on breach of duty and criminality.¹⁵ Moreover, while the Civil Code boldly declares that ‘fault causing harm attracts liability’ and private lawyers assert that any type of fault will do, administrative law is more circumspect, setting out the situations where different degrees of fault will give rise to liability.¹⁶ Similarly, while the ordinary courts had to rely on radical interpretations of the Code itself in order to give effect to liability for risk,¹⁷ the Conseil d’Etat could use the idea ‘neat’, burt also go beyond it, constructing an original law of liabilities sans faute based on more specifically public ideas, such as the need to preserve the ‘equality of public burdens’.¹⁸ As a result, while lines are drawn between liability for fault and without fault in both regimes, these categories mean different things and the lines between them are drawn in different places and, sometimes, for different reasons.

In the remainder of this chapter, I shall outline the very basic features of the regimes of liability, note the influence of liability insurance in their development and outline how insurers and others who pay compensation to primary claimants may themselves have a claim for an indemnity in respect of these payments. As I have explained, these latter features are important in forming an understanding of how liability is channelled in the system.