(C) The relationship between contractual and delictual liability

The final strand in this general pattern of civil liability of private law, and one which is prominent in our discussion of liability for products, is its special approach to the relationship between contract and delict, both as between parties to a contract and beyond them. There are four aspects of this relationship to which I wish to draw attention here, these revealing a curious combination of highly conceptual and contrastingly functional views of the law involved.⁷³

First, towards the end of the nineteenth century, a group of jurists argued that the special rules governing contractual liability found in the Civil Code and the binding force of contractual obligation both necessitated a rule forbidding delict from intruding into the ‘private law’ created by parties to a contract, so as to deny a party to a contract the possibility of claiming on the basis of delict, a position which became known as non-cumul des responsabilités contractuelle et délictuelle and since the 1920s has been accepted by both courts and writers.⁷⁴ Its significance is very considerable, not least owing to the overweening generality of French law’s principle of liability for delictual fault:⁷⁵ to allow the French law of delict to apply between parties to a contract would not merely offend French lawyers’ sense of juridical aesthetics, but would indeed threaten the effectiveness of agreements and of the Code’s regulation of particular contracts.⁷⁶

However, the second aspect of the relationship between contract and delict between contracting parties contrasts sharply with the conceptual flavour of much juristic writing on non-cumul and illustrates the willingness of French lawyers to manipulate their classifications in order to give effect to a particular policy. For the desire to allow victims of personal injuries to be compensated without a need to prove fault, which led to the reinterpretation of article 1384 alinéa 1,⁷⁷ found a contractual expression in the (p.28) creation of obligations de sécurité, obligations owed by one party to a contract to look after the personal safety of the other. This was a controversial technique whose effectiveness in imposing strict liability rested on a misconception as to the nature of contractual liability, for at the time most French lawyers thought that the ‘contractual fault’ on which liability was based could be established whenever a party to the contract did not achieve what he had to.⁷⁸ Thus, for example, if an employer owed his employee a contractual obligation as to his safety at work, injury there would establish contractual fault, unless the employer could show force majeure.⁷⁹ This was misconceived because it made no distinction between those contractual obligations whose performance requires some degree of care (obligations de moyens), and those which require a particular result (obligations de résultat),⁸⁰ but before 1925 when this distinction was clearly drawn, a shift in classification from delict to contract was generally considered to entail a shift from fault (under articles 1382 or 1383) to liability without fault in the sense of imprudence (under article 1147).

Where reclassification of liability as contractual was generally more favourable to an injured party than its delictual alternative there was little practical need to invoke the rule of non-cumul to prevent that party from choosing to rely on delict, but by the mid 1930s, jurists and courts realised that use of obligations de sécurité combined with the rule of non-cumul enabled them to control the basis of liability of one party to a contract to the other who has suffered physical harm: some obligations de sécurité could be held to be fault-based (obligations de moyens) and some strict (obligations de résultat). In this way, the courts acquired a major way of controlling the recently created strict liability for the ‘deeds of things’, for their imposition of an obligation de sécurité de moyens would forbid recourse to liability under article 1384 alinéa 1 because of the rule of non-cumul. So, for example, a surgeon could not be liable for the ‘deed’ of his scalpel where his contractual obligation to his patient was une obligation de moyens.⁸¹ The jurisprudence on the line between these two types of obligations de sécurité is very unsettled, the courts nuancing their decisions from case to case⁸² and resorting to Byzantine distinctions,⁸³ with the additional complication that sometimes they impose obligations somewhere between the two (notably, obligations de résultat atténuées) or contractual ‘liability for the deeds of things’.⁸⁴

Thirdly, French law has extended the idea of non-cumul beyond privity of contract.⁸⁵ For, it is thought, if the law recognizes the existence of a contractual right in one person against another, the special nature of this right (and, conversely, of the (p.29) other person’s liability) should not be usurped by the application of the general law of delict: to allow delict here would lead to the overturning of the ‘contractual equilibrium’ established by the parties.⁸⁶ Although this way of thinking suffered a major setback in 1991,⁸⁷ it still affects the law governing the contractual liability of manufacturers and others in the chain of distribution to purchasers of either movables or buildings, especially as regards qualitative defects,⁸⁸ where in principle a purchaser may sue those in the chain of distribution in contract, but only in contract.⁸⁹ Interestingly, though, implementation of the Product Liability Directive required French law to create an exception to non-cumul, for it requires a beneficiary of the rights which it creates to be enjoyed by those whom products injure, whether or not they possess a contractual claim against the producer or supplier.⁹⁰

A final twist in the relationship between contract and delict in French law may also be found in the context of liability for products. The traditional and ‘logical’ view of the courts was that non-performance of a contractual obligation which causes harm to a third party may or may not constitute a faute délictuelle so as to give rise to liability to that third party, depending on the nature of the fault apart from the contract: ‘as a third party cannot take advantage of the contract, any fault in a party to the contract should not be assessed by reference to the contractual standard’.⁹¹ However, from 1998 the Cour de cassation has sometimes held that non-performance of a contractual obligation (even an obligation de résultat) in itself constitutes delictual fault so as to attract liability to a person not party to or otherwise within the domain of protection of the contract,⁹² an approach which threatens to redraw the boundaries of contract and delict at the cost of ‘denaturing’ the concept of delictual fault. One of these cases concerned a claim for damages by the daughter of a person who contracted and died of AIDS having received blood contaminated by HIV from the national blood transfusion service. Here, the Cour de cassation clearly wished to extend the benefit of the very strict contractual liability which it had constructed for this purpose for the benefit of this victim par richochet in respect of facts long before French legislative implementation of the Product Liability Directive. This case forms, therefore, an example of the unsettling impact of the affaire du sang contaminé on fundamental principles of French law and to the extent to which it forms part of the French ‘judicial implementation’ of the 1985 Directive, it may not survive the combined effects of the loi of 1998 and the European Court’s decisions in 2002.⁹³ Certainly, this fundamental issue does not appear to have been settled as the Cour de cassation has also on occasion upheld the traditional demarcation between the two liabilities.⁹⁴