(B) Liability arising from administrative contracts

French law distinguishes between private law and administrative contracts both for jurisdictional and substantive legal purposes. The line between the two is complex, but in general the courts treat as administrative those contracts in which one of the parties is a public authority or person acting on behalf of a public authority and which closely concern the provision of a service public or those contracts whose contracts reserve to the administration special powers by terms known as clauses exorbitantes du droit commun.¹²⁶ Where a contract is held to be ‘administrative,’ any dispute arising from it is a matter for the administrative courts, but the law which those courts apply is based on the concepts of the Civil Code, modified so as to take into account the needs of the public interest.¹²⁷ In particular, the Conseil d’Etat recognizes ‘extraordinary powers’ in the administration (such as the power to vary the terms of its contracts reflecting the principle of the ‘mutability’ of the public service¹²⁸) but also subjects particular types of administrative contracts to special controls.

However, unlike its private law counterpart, the administrative law of contract has not been important in French law’s treatment of liability for products. As I shall later explain,¹²⁹ this results from the greater flexibility of administrative extra-contractual liability as compared with the private law of delict; from the Conseil d’Etat’s view of some relationships as essentially non-contractual;¹³⁰ and from the treatment by French law of some contractual liabilities of public bodies as belonging to private law and the jurisdiction of the ordinary courts.¹³¹ This illustrates the complexity of the division between private law and public law in France, for neither the nature of the body nor the nature of the function themselves determine the law applicable and it is for this reason that I shall treat the liability of those who supply products in the course of a public service (in a very general sense) as a matter both of private and administrative law.¹³²

3. ‘Solidary Liability’ in Private and Public Law

As I shall later explain, a very important issue in determining the patterns of liability for products is the way in which the law treats the question of the position of two or (p.34) more persons (the ‘co-authors’) liable for the same harm. The basic position in French private law here is a simple one, accepting a principle of ‘solidary’ liability, so that all co-authors are liable in full as against a person who has suffered the harm (the claimant who thereby possesses the droit de poursuite du créancier), but providing for recourse between them either by way of contribution or contractual indemnity.¹³³

By contrast, since 1937 the Conseil d’Etat’s position has differed here significantly, denying that the ‘co-authors of the same harm’ are necessarily liable in solidum towards the person suffering that harm.¹³⁴ So, it has generally refused to hold a public body liable in full to a person harmed by its fault, where this harm has also been caused by a person liable in private law, and instead grants to the public body a defence known as fait d’un tiers or fait d’une tierce personne, the effect of which is to reduce or even to exclude liability in the administration.¹³⁵ On the other hand, where the liability of the administration is imposed without fault or under the special rules applicable to ‘public works’ (whether or not liability is based on fault), the Conseil d’Etat accepts that the administration may be liable in full, even if another person is also liable for the same harm as a matter of private law.¹³⁶ This difference in treatment of the liability of co-authors has important consequences on the liability of the administration for products, particularly as regards the exercise of their powers of control and supervision of the safety of products.¹³⁷