1. The General Approach to Liability for the Provision of Services

While French law treats all contracts for the provision of services as contrats d’entreprise, this category is very diverse, though some jurists discern a broad distinction as to the basis of liability between contracts for ‘intellectual services’, which give rise merely to obligations de moyens, and ‘physical services’, which give rise to obligations de résultat.⁵ Here, I shall look at three more particular situations affecting liability for products by way of illustration.

(P.100) (a) Suppliers of products and services

Sometimes products are supplied under contracts which are neither sale (as they involve an element of service) nor hire (as property in the goods passes). In French law, these are all contrats d’entreprise, but their context varies considerably and with it so does the attitude of French courts to issues of liability, sometimes preferring liability to be strict, sometimes based on fault. As regards liability for personal injuries or damage to property, the way in which liability of the supplier of the product is expressed is through the technique of obligation de sécurité, but in keeping with their general approach to this technique, the reasons for the courts’ decisions as to the strictness of the liability are often elusive and difficult to generalise.⁶ Here, I would like to look at two examples.⁷

A well-known question relates to the standard of liability of a restaurateur in respect of food supplied. As to the safety of the food, liability is based on an obligation de sécurité de résultat: so, in the well-known case of the poached turbot which contained botulism, a restaurant was held liable for the food poisoning which this caused to its customer, even though the court accepted that the restaurant could not have detected or removed the offending organism.⁸ On the other hand, the court noted that the restaurant owed its customers a mere obligation de diligence ordinaire as to the ‘quality of the taste’ of the dishes which it served, a duty whose actual content would vary according to the class of restaurant in question.⁹

By contrast, hairdressers are apparently treated by French courts more leniently than restaurateurs, since they are generally said to be liable only under an obligation de moyens even as to the safety of the products with which they treat their customers. Thus, in one case, a hairdresser had treated the customer with a bleaching agent, as a result of which she suffered a skin complaint, but the lower court’s decision which held the hairdresser liable in damages to her was quashed as it had found that the product had been used in accordance with its instructions and a hairdresser is not under an obligation de résultat, but only de moyens.¹⁰ Perhaps the court considered that the more appropriate defendant was the manufacturer of the product, and that the hairdresser should not be burdened with liability even if later he can recover an indemnity from the manufacturer.¹¹ If so, this approach contrasts strikingly with the position governing sale, where all members of the chain of distribution are liable for any ‘defects’ in the products which they have sold directly to any purchaser harmed by them.¹²