Extra-Contractual Liability and Damage Responsibility

• The object of extra-contractual liability is to answer for something outside of any contract.
• The obligation is the reparation of damage, defined as the consequences of harm to an interest.
• This involves two people: the Author of the Harmful Act and the Victim.
• Harm must not result from the victim but from someone else's act.
• This rapport with others causes the obligation to repair the harm caused, which assumes a link between the debtor and the creditor.
• The ruling of JP 08/08/2016 established that ecological damage is the consequences of harm caused to nature, independently of any impact on people or property.

Responsibility for Damage

• It falls on the person who caused the harm.
• It can fall on the person who controls the thing that caused the harm.
• The person qualified as responsible is not unrelated to the realization of the harm but is instead linked to the realization.

Authority and Liability

• This often stems from a relationship of authority, such as parental or hierarchical authority (employer's responsibility for their employee's actions).
• The authority exercised over a person prevents the qualification of foreigner, so the responsibility of parents or the principal can be implemented.
• The person qualified as a debtor of compensation guarantees compensation for the victim.

Doctrine Definition

• It is the obligation outside of any contract to repair the harm caused to others or to nature, weighing on the direct or indirect author or any person determined by law.
• It does not consider anyone unrelated to the realization of the harm.
• It is impossible to give a foundation as there are 2 groups.

Classic Theories

• There are 2 foundations, fault and subjective responsibility
• Article 1240 states any act of a man that causes damage to another obliges he by whose fault it arrived to repair it.

Fault and Responsibility

• Article 1241 states each is responsible for the damage that he caused not only by his act, but even by his negligence or by his imprudence.
• This institutes the responsibility for personal action.
• It was long thought that this article instituted a general principle of REC, which is a principle of responsibility for fault.

Fault

• It is a failure, error of conduct, and implies a judgment of value or moral on the conduct of the author.
• The fault foundation was insufficient to allow for the reparation of damages.
• It was necessary to demonstrate a fault of the person responsible in the context of extracontractual civil liability, which complicated cases like work accidents.
• It was sometimes impossible to link the harm to the existence of a fault.
• For reasons of justice, solidarity, and equality, another foundation of RCEC emerged, which is the theory of risk.
• Responsibility is based on the idea of risk as a counterpart to profit; the individual who engages in an activity and derives profits from it must bear the risks involved.

Risk Theory

• This theory expanded in REC as it held that an individual who creates a danger in society must bear the consequences, such as compensating the victim who suffers harm due to this risk.
• The ruling of June 16, 1986 on the reparation of work accidents stated the employer has true control of the machine so they are responsible for its use.
• The specific law from April 9, 1998 on the compensation of work accidents justified the specific regime applied to compensating victims of traffic accidents.
• It facilitates compensation for victims.

Theory of Risk

• The REC rests on a causal link between harm and activity.
• Responsibility is without fault or objective.
• There are more cases of responsibility based on risk than on fault.
• These include responsibility for the actions of things, actions of others, defective products and victims of traffic accidents.
• The responsibility rests on the two foundations of fault and risk.

Doctrinal Theory: Guarantee

• Henri Starck developed it and bases it on the victim's right to safety.
• The victim must be compensated as soon as harm is caused, without needing to prove a fault of the author of the damage.
• There is an articulation between two rights: It includes the right to act by the author of the damage.
• Some activities cause inevitable damage which will not be repaired if they are inherent to the activity exercised.
• Right to security of the victim prevails when the damage is not inherent to the activity exercised
• Repair must be automatic and effective, independently of any fault of the author.

Guarantees

• Some current rules (responsibility for the actions of things, accidents of traffic, ecological damage) are inspired by this approach by prioritizing the protection of the victim.
• The debates on the reform of civil liability could still restore interest in this theory, especially to strengthen the compensation of victims in terms of occupational and environmental risks.

Theory of Putting in Danger

• It involves exposing others to risks characterized because of a particularly dangerous activity.
• If a dangerous activity causes harm, the author of the activity must repair it, even without any fault on their part.
• This new case of responsibility without fault concerns the reparation of bodily harm. This theory has a link with the theory of risk but also with the theory of the guarantee.
• It's a very doctrinal theory that doesn't add a new foundation.
• The basis of responsibility is on the principle of precaution values.
• Constitutional values (Article 5 of the Environment Charter) dictate a principle of action that allows us to take precautions in cases where there are potential risks

Theory of Transformation and Anticipation

• The RC could have a role before the realization of harm, with the RC based on the precautionary principle obliging a person to take precautionary measures in their activity.
• It helps to avoid the realization of the potential risk = a person can be responsible because they didn't take this type of measure.
• There would be a transformed RCEC as it is turned towards the future = anticipatory responsibility.
• This theory would be of interest in a specific potential risk to be prevented.
• It would be to those encountered in public health and the environment, which are two domains of the principle of precaution which can cause serious and irreversible harm, that can lead to grave irreversible harm.
• Most in doctrine are unconvinced since this principle would lead to a real upheaval
• There is an articulation that has been made in some areas (neighborhood disturbance) = not successful.
• There is an institution of extracontractual civil responsibility based on fault and risk, which remain the foundations.
• This cohabitation gives rise to two categories of extracontractual civil responsibility, since we will have a responsibility for fault AND a responsibility without fault.
• This dichotomy is not isolated, it is found in administrative law too.
• These doctrinal theories are insufficient.

REC Functions

• The reparative function distinguishes criminal and civil responsibility.

Repressive Measures

• This is the sanction of behavior. In addition to damages and interests, a fine can be applied in case of fault committed to obtain a gain or saving, not taken into account in the reform proposal.
• It is done to avoid harm. Preventative function may be reinforced with the reform proposal.
• New function: Cessation of Illicit article 1268 of reform project that stems from BLOCH 2006 = stop an illegal behavior or end a situation prohibited by law.
• When a person or business ends an action that violates a rule.
• An administrative or civil function, it can avoid more serious sanctions.
• For example an enterprise uses a trademark without authorization.
• It ceases when the holder warns it.
• REC mechanisms and it's characterized by 3 conditions of implementation: a fact generating responsibility for fault or not, harm, and one of causality.
• This classification corresponds to the distinction of the source of the link between victim and responsible.

Distinctions

• RC = It concerns if an existence of a contract between responsible and victim and indicates source is a legal act
• REC = assumes absence of contract and indicates source is a legal fact
• A breach of a contractual obligation can be invoked, signifies a third party to the contract can invoke it.

Contract Law Vs Extracontractual Law

• There's a debate on is the mistake a violation, also there is one if the EC fault doesn't represent general duty.
• Fault is considered a constiution toward extra-contractual
• 6 october 2006, BOOTSHOP MYR HO: consacres the identity of the faults.
• EC means invoquing a violation.

Solutions

• Its solution for injuries
• facilite l'indemnisation
• l'opposabilite des contract
• A solution can be given if there is a "faute"
• Since reforms are coming, the textes reforms also help toward EC faults (art 1234)
• Since these laws come into affect reform will be easier The reform applies to "tiers" in the contract The limits help respond to the "faute"
• With this there is a "similitudes" between the two branches

Similar Responsibilities

• There is a certain sanction behavior
• The "prejudice", harm, follows the laws
• It is easier to regulate the rules within REC compared to the limited range of regulation, because REC is wide
• in EC theres a "incapacité d'incidence'' on contracts

Clauses

• They limit responsibility Matiere C les clauses valables
• Reform help with limits EC : matters which help prohibit laws
• The reforms and the extends of what had to be done C and RC laws also protect under principle
• REC : integration of contract and to protect

Responsibilities

• AJP also shows these 2 responsibilities(arrete 1896
• No competition

Civil code Article - Préjudices in law

• ART 1240 and 1244
• Definitons for it
• Differences and the seperation of each " préjudice''
• Damage is any kind of fault whether financial or other ( a theft)
• The préjudice follows caused any damage

Écologie

• Since 08/08/2016
• Harm
• ART 1247

Different classifications

• Préjudice of man
• All kind of damages
• Loss of money

Non Financal Harm

• Also "préjudice" moral , a result from all matters
• If a property results in troubles
• if it brings about anxiety
• If it touches the heart
• Does this bring a harm?
• Some authors say "commercialisation"" on the moral
• RIPERT says a criminal
• It can be patrimonial. It can give financial trouble
• List