3 Hire of Property

The Civil Code subjected the hire of movable and immovable property to the same Romanist framework, not making any formal distinction between the hire of movables and leases of immovables similar to that found in English law, nor giving any proprietary interest to tenants of immovable property. While this framework has been qualified or by-passed by modern legislation in many contexts and for many purposes to an extent that the general rules of the Code have become of only secondary importance,⁹⁵ the law governing the liability of a person who hires out property (for convenience, the ‘owner’) to the person hiring it (the ‘hirer’) has remained largely unaffected.

(A) The owner’s liability to the hirer

The basic pattern of the owner’s liability is reminiscent of the system of liability imposed on sellers, but differs from it at a number of points. It may be based on at least (p.109) four special grounds of contractual liability, quite apart from any liability arising under the general law governing all contracts, for example, for dolor for breach of an obligation d’information.⁹⁶ It has long been established that the rule of non-cumul des responsabilités prevents a hirer from relying on delict against the owner.⁹⁷

First, in principle, the owner must deliver the property⁹⁸ in a good state of repair in all respects,⁹⁹ even those which are the responsibility of the hirer during the term of the contract.¹⁰⁰ This liability is more onerous for the owner than the law governing the liability of a seller, who must simply deliver the property agreed in the state existing at the time of sale and without hidden defects.¹⁰¹ While in principle it may be excluded by the parties’ agreement (and, indeed, frequently is by a term stipulating that property is taken ‘as found’¹⁰²), the courts interpret any such exclusion strictly¹⁰³

Secondly, after delivery, the owner¹⁰⁴ is under an obligation to effect those repairs on the property which are necessary for the use for which it has been hired,¹⁰⁵ as long as those repairs are not classed as the responsibility of the hirer (‘réparations locatives).¹⁰⁶ While the issue of responsibility for repair has attracted considerable litigation, in general the owner’s responsibility concerns repairs to the property’s structure or other essential elements, whereas the tenant’s concerns more minor matters.¹⁰⁷ Again, although the responsibility for repair may be allocated and the obligation to repair excluded by agreement, the courts interpret these agreements strictly¹⁰⁸ While an owner’s duty to repair hired property was at first considered an obligation de moyens, more recently the courts have interpreted it more strictly¹⁰⁹ Certainly, the courts have sometimes imposed liability to a person injured by hired property who suffers personal injury as a result of a failure to repair for which the owner is responsible without showing any lack of care,¹¹⁰ though in 1987 the Cour de cassation required proof either of fault or a defect in the property.¹¹¹

(p.110) Thirdly, an owner is liable in damages to the hirer for any harm caused by defects in the property let which prevent its use, even if the owner was unaware of them at the time of the contract.¹¹² While the Code does not say so explicitly, courts and jurists agree that this liability applies only to latent defects,¹¹³ thereby echoing the position under the garantie légale in sale.¹¹⁴ But there are a number of significant differences between these two liabilities for latent defects. So, in the context of hire the courts apparently take a wide, ‘functionalist’ view of the notion of defect,¹¹⁵ in contrast to the narrower view taken more recently in the context of sale;¹¹⁶ an owners liability applies only to those defects which prevent the property’s use, whereas a seller’s liability extends also to those defects which so affect its use that the buyer would have bought it only at a lesser price;¹¹⁷ reflecting the continuing nature of contracts of hire, there is no requirement that the hidden defect exists at the time of making the contract¹¹⁸ and it is for this reason that it is easily confused with liability arising from a failure to repair; an owner is liable in damages to his hirer for loss caused by a defect whether or not he was aware of the defect,¹¹⁹ whereas a seller is liable in damages under the garantie légale only if he knew of the defect on sale or sold the property in the course of a business.¹²⁰ Moreover, while liability is strict, an owner may rely on a defence of force majeure against his hirer, even as regards the prevention of defects in the property hired (in contrast to the position in sale),¹²¹ though the decision which recognizes this concerns defects arising after delivery of the property, for example, resulting from the installation by a third party of defective central heating,¹²² a situation not falling within the garantie légale at all.¹²³ The courts allow recovery of damages in respect of any harm caused by defects in the property hired, whether personal injuries, damage to other property or losses caused by its lesser usefulness,¹²⁴ and apply their general approach to the effectiveness of exemption clauses to the owner’s liability, holding them valid in the absence of dol (here, knowledge of the defect) or faute lourde;¹²⁵ but they have not transferred from sale to hire the technique which deems those hiring property in the course of business to know of its defects in order to invalidate exemption clauses.¹²⁶ Finally, an owner’s liability for latent defects in hire runs for the prescription periods of the general law: there is no ‘brief delay’, for so long so characteristic of liability under the garantie légale in sale.¹²⁷ For some writers, these various differences between liability arising under contracts of hire and of sale shows that the former has more in common with liability for breach of contract under the ‘general law’, rather than the special regime of the garantie légale in sale.¹²⁸

(p.111) Fourthly, some jurists argue that an owner owes the hirer an obligation de sécurité, that is, a contractual obligation to care for the safety of his person or property.¹²⁹ However, in common with the position in the contract of sale, it is not clear whether this obligation is distinct from the others which I have already described which are imposed on the owner by the Civil Code, notably, liability for hidden defects.¹³⁰ A possible difference between the two would be that the latter requires the proof of a defect by the hirer, whereas this is not in principle necessary for an obligation de sécurité, though it has been required in the context of sale.¹³¹ While it has been suggested that at least in the context of buildings the courts distinguish between cases where an owner is sued for the loss of a tenants property stolen from the premises, where liability rests on a proof of fault (obligation de moyens), and cases where an owner is sued for personal injury or death by the hirer, where liability is strict (obligation de résultat),¹³² a more recent decision of the Cour de cassation affirmed the existence of any obligation de sécurité de moyens as regards the hire of premises in a case where the hirer had been injured by a gas cooker in unexplained circumstances.¹³³ The effect of this was to deny liability, either for the premises’ ‘latent defects’ or against the landlord as their gardien.