Extra-Contractual Civil Liability

• The study notes provide an overview of extra-contractual civil liability, its history, foundations, and conditions for application

General Presentation

• The origins of extra-contractual civil liability are ancient, evolving through Greek and Roman law, the Middle Ages, and modern times
• A key principle is restoring the balance disrupted by damage, aiming to place the victim in the situation they would have been in had the damage not occurred
• The objective is to provide assistance, not to fully undo or perfectly repair the harm

History and Governing Principles

• Without extra-contractual liability, the law of the strongest, retaliation, and vengeance would prevail
• Societies have long sought to address harm to victims from unintentional acts
• The evolution of liability has occurred over three periods: ancient times, the Middle Ages, and the modern era

Ancient Law: Greek and Roman Law

• Before the 12 Tables, Greek law included the idea that someone responsible for harm to another is responsible to God
• Roman law, through the Law of the 12 Tables, distanced itself from the religious aspect, acknowledging responsibility toward the victim: speondo
• The Aquilian Law introduced the concept of damage caused without right, though it seemed limited to positive acts

Middle Ages and Current Periods

• The Digest further developed these concepts, stating that no one should harm another
• During the Enlightenment, philosophers and jurists focused on the rules of law and liability in society
• Article 4 of the Declaration of the Rights of Man and of the Citizen states that liberty consists of doing anything that does not harm others
• The Civil Code of 1804 translated these principles, establishing rules for civil liability determining specific cases of liability
• The foundations and functions of extra-contractual civil liability have proven useful, necessary, and generally effective over time

Various Foundations, Governing Principles, and Functions of Extra-Contractual Liability

• The concept of civil liability is old and has shown lasting relevance due to its solid foundations and functions that evolved with the society

Current Foundations of Civil Liability

• Fault is linked to the term's penal influence
• The concept of risk is inherent in human and/or economic activity that generates damages
• The society emphasis is on security for nearly all victims, ensuring compensation for physical or material harm
• Guarantee philosophy is based on providing protection to any victim

Fault Committed by the Author of the Damage

• The primary foundation is sanctioning the person who caused the damage
• Originally, emphasis was on sanctioning the wrongdoer over compensating the victim
• Fault served a prophylactic purpose, deterring others from similar actions

Responsibility Based on Risk

• Two jurists in the late 19th and early 20th centuries developed the idea that the industrial revolution caused new damages
• Activities encompass more risks than before
• SALEILLES and JOSSERAND showed that risks were more numerous and damages were more frequent and severe
• Magistrates deemed that activities create risk and those risks must be assumed by repairing caused damages

Solidarity, Guarantee Theory, and Precaution/Prevention

• Solidarity was established in 1945, originating in the 1898 law on workplace accident compensation insurance
• Boris STARCK developed the theory of guarantee, where the focus is on victims
• Guarantee theory is a corollary- risk produces activity, so victims are guaranteed safety in person or property
• Developed to require intervention to avoid damage, or at least minimize its potential
• This principle is enshrined in the law of February 2, 1995
• Objective is to reduce the impact of events that cannot be prevented through precautions and appropriate action
• Prevention focuses on damage occurrence in the future
• Precaution limits damage in the immediate present
• HANS JONAS emphasized the need to act with precaution or preventatively, as preventative measures are cost-effective than repairs
• Legal texts have been recently supplemented, with 9 actions for preventative measures in employment law under Article L4121-2 of the Labor Code

Diversity of Functions

• The traditional view is that extra-contractual liability was created to fulfill three functions, starting a debate about punitive actions:

Punitive Function

• Not a purpose of civil liability, but a purpose of penal right even if civil right attempted it before
• Compensation in damages, rarely in kind. French law deems such damages should only be restorative and not punitive
• Some countries, notably Common Law countries, admit them but for the State or association; not for victims

Repair Function

• In reality, fixing damage is often difficult, especially to physical damages, including psychologically
• Courts must restore the person so they would have been, had there been no damage

Preventative Function

• It judges reasoning based on actions performed by those who are and not authors of omissions
• The judge uses the "reasonable people" paradigm: how someone should have acted
• A person should act in a reflective, wise, thoughtful, calm, and normal behavior with a certain measures of precaution

Indemnification - Governing Principles

• Key principles for compensation matter for victims

Reparation in Full

• The person responsible for damages must repair is the official principle
• This suggests damages can be many types
• The court must discuss each claim

Bodily Injury

• Has been given more attention than damage to property
• Magistrates appear more attentive to physical and psychological harm to body - our society seems to favor this idea

Areas of Responsibility

• Law distinguishes between extra-contractual and contract damages responsibility cases

The Distinction

• No possible conflict given often a involuntary contract results an an unwillingness

Reason for Distinction

• For injured victim non to have other recourse - the option of receiving a tort is impossible
• An existing agreement or a contract is paramount or of supreme importance

Limits of that Distinction -

• The concept that all are the same at 10 years out may not hold
• the differences between "negligence or intent" becomes harder to distinguish - the lines become hard to see

Accountability

• This covers instances of someone being responsible and what to take from situations and also what's been done about similar instances from centuries ago