Contractual liability

The contractual liability is, with the criminal Responsabilité, one of the two parts of the Civil responsibility. It is committed in the event of bad execution or of inexecution total or partial of the obligations born from a contract. This mode of responsibility is envisaged with the article of the Civil code which lays out that:

The debtor is condemned, if it is necessary, to the payment of damages either at a rate of the inexecution of the obligation, or at a rate of the delay in the execution, all the times that he does not justify that the inexecution comes from a foreign cause which cannot be to him charged, although it does not have there no bad faith of its share.

The detrimental fact

The contractual liability is committed when a detrimental fact is noted by the meeting of three cumulative conditions: a damage (except so of the damages fixed in advance stipulated in the contract in the event of failure of the debtor of the obligation; except exception, the judge cannot modify the amount of it), a makes generating responsibility (inexecution or bad contractual execution) and a Causal link.

Reparable damage

Inexecution or bad contractual execution

It is initially necessary to prove the existence of this inexecution or bad execution. For that, one refers so that the contract even or then with the Civil code stipulates, if not with jurisprudence.

In the second time, it should be proven that this inexecution or bad execution is faulty and generates the responsibility the faulty one, from where the creation of the distinction obligation of result/obligation of means:

the Obligation of result: the debtor is held, except case of Major force, to provide the result anticipated by the creditor (for example, the conveyer is held to lead the healthy passenger and except to destination and under the conditions stipulated by the contract). The creditor will be able to bring into play the responsibility for the debtor by the simple proof of the defect of attack of result. The debtor will have to thus prove that the inexecution is due to a case of major force or with a foreign Cause to exonerate its responsibility.
the Obligation of means: there the debtor promises to implement his prudence, his diligence and average the techniques and/or intellectuals necessary in order to obtain the result anticipated without being able for as much guaranteeing to arrive (for example, the doctor implements all, taking into account its qualification and of the current scientific knowledge). He will belong to the creditor of the obligation to show that the debtor did not put all the means necessary to the execution of his obligation.

The contract generally specifies in which type of obligation one is. If such is not the case, two criteria slice:

the existence of a risk in the execution of the obligation.
the active role or not of the creditor of the obligation in the execution of this one.

The causal link

The article of the Civil code specifies that the damage must be the “immediate and direct continuation of the inexecution of convention”.

Compensation for the damage

Sanctions in the event of inexecution of the various obligations: to make or not to make, give (within the meaning of transfer of property of a real estate value) or to deliver a thing; are envisaged by the articles with Civil code.

When the contractual obligation can still be carried out, the creditor can ask so that the debtor be forced with this execution: it is the distraint . He can also ask to the judge the execution by a third with the expenses of the debtor.

When the contractual obligation cannot be carried out any more, there is repair by equivalent in the form of damages, ordered by the judge. The amount of these damages will be appreciated by the court dealing with the substance of a case taking into consideration principle of integral repair, and will be evaluated at the day of the final judgment.

Clauses relating to the contractual liability

The parts of the contract can include clauses regulating their responsibility in the event of damage. If the principle of the sovereign will of the parts remains the rule, the debtor of the obligation should not however not introduce clauses tending to exonerate it his obligations; which “must be carried out in good faith” (article of the Civil code); very important jurisprudential interpretation for the defense of the consumers and users of various services:

for example, obligation of information of the banks or other financial people receiving benefits with regard to their customers.
it also weighs on the creditor of the obligation, e.g. as regards insurances, the customer cannot hide elements of risk, except losing whole or part of its right to compensation.

Clauses of nonresponsibility

The parts are appropriate that in the event of inexecution or bad execution of the obligation, the debtor will not be responsible. These clauses will not be able however to play when the inexecution must with the heavy Faute or fraudulent of the debtor (they then famous are not written). They cannot also be opposite when the damage consists of an attack with the physical integrity of others. A professional cannot impose them on a consumer.

Limiting clauses of responsibility

The parts are appropriate to limit the conditions of setting concerned of the responsibility, or the consequences of this responsibility. These clauses are considered abusive in the event of heavy or fraudulent fault on behalf of the debtor, or between professionals and consumers.

The penalty clauses

The parts right from the start fix the amount of the damages in the event of bad execution or of inexecution of the obligation. Consequently, this clause involves a substitution of the conventional evaluation to the legal evaluation. To bring into play these clauses, it is necessary that the inexecution is ascribable to the debtor. The creditor is not obliged to call upon this clause and can prefer a demand for distraint to him, even the resolution of the contract. The penalty clause is a fixed price which must be respected, however if its amount proves to be excessive or ridiculous taking into consideration damage, the judge will be able to moderate it with the rise as with the fall.

Random links: