(P.101) (b) The liability of repairers

Where a product has been repaired and then causes harm either to the person who commissioned the work (typically and for convenience, its owner) or to others, what recourse do they have against the person who undertook the repairs?¹³ Here, the French courts have been relatively conservative.

Under a contract to repair, for example, a motor vehicle by a mechanic, the repairer owes his client a contractual obligation to do the work, but the courts have fluctuated in their view as to its content, sometimes treating it as an obligation de résultat, sometimes de moyens and sometimes something in between, usually known as an obligation de résultat atténuée.¹⁴ However, some points do emerge from this uncertain picture. First, while it is for the juges du fond to decide what the repairer agreed to do for the owner,¹⁵ a repairer of a product like a motor vehicle will normally be found to have undertaken its putting into running order and will be excused from liability when it breaks down only if he shows that his client refused to allow a necessary repair or was warned as to its incomplete or temporary nature.¹⁶ In one case, for example, A, who had been held liable as gardien of his vehicle when it swerved into B’s vehicle, succeeded in his recourse claim against C, a garage mechanic, to whom he had taken his vehicle for repair shortly before the accident, on the ground that a repairer of a vehicle must put it into correct running order and do the work to a proper standard, warning his client of the temporary nature of any repairs and in particular of any dangers which could thereby result;¹⁷ sometimes, though, a mere warning as to a risk may not be enough, as a repairer can be held at fault for allowing a dangerous vehicle back onto the road, in contract to the client and in delict to any third parties who are injured as a result.¹⁸ Moreover, some cases have held that a garage mechanic is liable to the owner in respect of harm caused by the vehicle or merely its breakdown on the basis of a rebuttable presumption of fault and of causal significance.¹⁹ So, for example, where after repair a car broke down some 1,500 kilometres from the garage for reasons which remained obscure, the Cour de cassation held that it was for the repairer to show that he had performed his obligation and that he had not been at fault.²⁰

By contrast with their adventurousness in the context of sale and the construction of buildings,²¹ French courts have not extended the benefit of contracts of repair (p.102) beyond their parties, leaving a traditional division of roles between contract and delict. So, a person who buys property which has been badly repaired cannot sue its repairer on the basis of the contract of repair made with its former owner, his seller,²² but must prove the repairer’s delictual fault under article 1383 of the Code. Similarly, anyone other than the person for whom the repairs were done who is injured, for example, by a badly repaired vehicle, may sue the repairer but only for delictual fault; but given the very strict liability imposed on a gardien of a motor vehicle, he is much more likely to sue its gardien,²³ leaving it to the latter to claim an indemnity from the repairer either in contract, if he commissioned the work, or in delict, if he did not.²⁴

While the liability imposed on the gardiens of motor vehicles is particularly strict,²⁵ this picture is of wider significance. Typically, a person who engages someone to repair a product is either its owner or, possibly, its hirer and typically will therefore also be its gardien.²⁶ This means that where the product causes harm to anyone else, they will prefer to sue its gardien under article 1384 alinéa 1 of the Code, leaving its gardien to sue either in contract (if he or she did indeed commission the work) or, if not, for delictual fault if it can be established. So, while the repairer may be responsible for the harm caused by an inadequate repair based on a presumption of fault, any third party will prefer to leave such questions of attribution for the products gardien.