I. Introduction
Recent proposals to redraft the obligations provisions of the French Civil Code (Rapport sur l'avant-projet de réforme du droit des obligations et du droit de la prescription)Footnote 1 have received limited attention outside France. This may appear surprising. As the most recent attempt to reformulate the core principles of a major legal system, which has been translated into a number of languages and made available electronically for ease of access, it provides a fascinating insight into the codification process. One reason for this lack of interest may be the current focus of private lawyers on proposals for European models of contract and tort law. As Van Dam commented recently, ‘[h]armonization and the search for a new ius commune are at the heart of the current European private law discourse.’Footnote 2 Nevertheless, this article will argue that a study of the Avant-projet is capable of providing a fresh insight not only into the nature of law reform, but also into the process of codification itself.
This article will concentrate on the proposals for reform of the law of tort/delict. The contractual provisions form the bulk of the Avant-projet Footnote 3 and have inevitably attracted most attention,Footnote 4 but it is in relation to tort law that one sees most clearly the inadequacies of the 1804 Code. Originally, a mere five provisions (Articles 1382–1386) set out the whole of fault-based and strict liability in very general terms. Whilst this might have been acceptable at the time, in view of the needs of the largely agrarian French economy, tort law in Europe was transformed in the course of the 19th and 20th century in response to the consequences of the industrial revolution, urbanization and the huge political and economic upheavals of this period. These are not reflected in the Code which, to date, contains only minor legislative changes.Footnote 5 This is thus an area where the case for reform would appear strongest, bringing much needed clarity and modernization to existing law.
This article will outline the key reforms to the delictual provisions of the Code, examining the methodology used and their impact in terms of policy and legal change. It will also assess the extent to which the Reform Commission has been able to formulate key principles of tort law in a form which is acceptable to the community and which reflects its values. The goals of the Commission are ambitious: to
maintain [the Civil Code] as the central tenet of private law … the natural recourse of a judge faced with silence in the specific statutes or contracts, the common basis of our legal reasoning … Our hope is that the Reform Proposals serve the purpose which will give France a civil law adapted to its time and a voice at the table of Europe.Footnote 6
In assessing the success of the Commission in achieving these objectives, the article will examine what lessons can be learnt more generally by those engaged in codification or restatement projects.
II. The Avant-projet Catala: Is There a Need for Reform?
The Avant-projet is the result of a process commenced in 2003, with the assistance of the Ministry of Justice, to reform the French Civil Code, over two centuries after its birth in 1804. The final document is over 200 pages long, covers the law of contract, tort, unjust enrichment and prescription and has been translated into English, German, Spanish and Italian. The Tort Section contains Articles 1340–1386 (an increase by over 400 per cent in size) and proposes significant changes to the current law. The motivation for such changes may be found by examining the development of French tort law since 1804 and questioning how principles of corrective and distributive justice may be fashioned from a mere 239 words. The evolution of French tort law to provide compensation for the accidents resulting from industrialization and increased urbanization, with only minor modifications of the tort (or delictual) provisions of the Code, is one of the most outstanding features of French civil law.Footnote 7 This section will outline how this remarkable development came about before considering why, given the apparent success of this methodology, reform was deemed necessary in 2003. In so doing, the aims and objectives of the reformers will be identified.
A. sThe Development of the Law of Delict from 1804
Despite the best efforts of the exegetical school to adhere to a strict interpretation of the Code,Footnote 8 by the mid to late 19th century it was recognized that the provisions stated in Articles 1382–1386 could not be considered comprehensive or self-explanatory. Article 1382 provides a good example of the challenges facing the courts. Liability is famously established on a unitary principle of fault: ‘Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.’Footnote 9 The style of this provision indicates a particular view of codification—that of declaring core statements of principle, comprehensible to the ordinary citizen.Footnote 10 In so doing, however, a degree of uncertainty is created at the very heart of the legal system. At a basic level, Article 1382 provides no assistance in determining the meaning of such fundamental concepts as ‘damage’, ‘fault’ and ‘cause’.Footnote 11 We are not informed whether any defences exist, or on what basis compensation should be assessed. Interpretion by the courts, as appreciated by Portalis (one of the four drafters of the Code), was, despite Article 5,Footnote 12 inevitable.Footnote 13 The provisions of the Code civil can only, in reality, be a starting point for lawyers seeking to interpret and apply the relevant law.
The French law of delict is therefore to be found as much in case law as in Articles 1382–1386 of the Code civil. A brief glance at the growth of the law of delict since 1804 reveals that the courts have made extraordinary changes to fault-based and strict liability without any real modification of the wording of these articles. Two leading examples may be given. The Jand'heur case of 1930Footnote 14 provides an excellent illustration of how far the courts are prepared to re-read codal provisions to achieve certain social goals. Article 1384(1) provides that ‘A person is liable not only for the damages he causes by his own act, but also for that which is caused by … things which are in his custody.’ Initially considered to be an introductory provision, the Cour de cassation was prepared to find that ‘liability for things in your custody’ could render a driver of a motor vehicle strictly liable to the victim of a road accident. It rejected previous authority that a car, driven by a conscient human being, could not be considered a defective ‘thing’ or ‘object’ causing injury to another. Liability arose from the fact of having custody of the object, not the act of the object itself,Footnote 15 and a driver would therefore be liable regardless of any fault unless he or she could establish an unforeseeable event which rendered the accident unavoidable and which was external to the defendant.Footnote 16
More recently, the Blieck case of 1991Footnote 17 demonstrated the ongoing willingness of the courts to extend strict liability by a very generous reading of Article 1384(1).Footnote 18 Here, strict liability was imposed on a day centre for mentally handicapped people when one of the adults under its care started a fire in a forest. This was regardless of specific provision for vicarious liability in Articles 1384(4), (5) and (6), which limit liability for the acts of others to specific categories of parents, employers and apprentice-masters. Such an extension arguably undermines these latter provisions, replacing them with a single rule of strict liability which contradicts the very structure of the code.
Both these cases are admittedly controversial. They represent the judicial resolution of an active debate as to the scope of delictual liability and the extent to which the legal system should compensate victims of accidents resulting from activities which involve the risk of injury to innocent third parties. Legal development is undertaken in collaboration with academic writersFootnote 19 and supplemented by legislation—the Jand'heur case itself now overtaken by the 1985 loi Badinter.Footnote 20 These cases illustrate the ability of the courts to interpret the limited provisions of the 1804 Code in a flexible way which responds to contemporary needs. That this is achieved by manipulation of the text which subverts not only the original intentions of the drafters, but sometimes the actual wording of the Code itself,Footnote 21 is the price which is to be paid.
B. A Need for Change?
It is in this light that the proposed reforms should be approached. The existing law has been able to develop and respond to contemporary challenges by means of judicial ingenuity, supplemented by legislation and assisted by doctrinal writers. In recommending reform, the Tort Working Group (headed by Professors Viney and Durry, with the assistance of six other academics) sought to re-assert the importance of the Civil Code as a source of law. It is no coincidence that the Avant-projet was commenced at the same time as preparations were being made for celebrating the bicentenary of the 1804 Civil Code, which encouraged a period of reflection on the impact of the Code over the previous 200 years in France and elsewhere.Footnote 22 The new Code would contain statements of principle and definitions which were currently only to be found in case law and, in so doing, would settle matters of doctrinal dispute. It is, therefore, unsurprising that the result is a vast extension of the delict section of the Code. The Preamble to the delictual reforms makes it very clear that the reformers have not confined themselves to a mere articulation or list of various amendments to the law since 1804 (although this is, in fact, achieved in several places). The opportunity is taken both to refine and develop the law. A reformed law of delict should not only state more clearly what is meant by case-based concepts such as ‘force majeure’Footnote 23 or ‘liability for the acts of things’,Footnote 24 and remove obsolete provisions, for example the liability of artisans for their apprentices,Footnote 25 it should present the law for the future, responding to contemporary social problems and thereby take the lead in the development of modern tortious principle. In the words of Professor Viney, it should seek to ‘adapt the positive law to the demands of modern life’.Footnote 26
The timing was also affected by the movement towards harmonization of European private law. The drafters were well aware that the Avant-projet might have a secondary role in reasserting French law as a modern legal system capable of engaging in the process of European private law reform.Footnote 27 In the words of the Working Group of the French Bar, ‘the French law of obligations must be again codified, in order to allow it, if not to serve as a model, at least to be more broadly taken into account in the current and future debates concerning the implementation of a European Code of Obligations.’Footnote 28
The next section will examine the most important structural reforms proposed in the Avant-projet. In so doing, it will analyse the degree to which they represent a change in the direction of French tort law. Three areas of law will be examined in detail: the formulation of fault-based liability, the relationship between fault-based and strict liability in modern tort law, and finally, the difficulty of integrating legislative reforms (national and European) into a general code of obligations. These raise issues fundamental to any modern formulation of the law of tort: how does codification assist our understanding of tort principle? To what extent can a restatement of principle help determine the direction and content of this area of law, now and in the future?
III. A 21st Century Law of Delict: Reformulating Core Principles of Tort Law
A. Defining ‘Fault’
In determining liability based on fault as the principal basis for tort liability in 1804, the question of what qualifies as ‘fault’ has inevitably been a matter of both litigation and academic analysis. The courts' approach has evolved over time to meet changing conceptions of the nature of fault-based liability. In moving from an initially moralistic view to objective standards of liability,Footnote 29 French law has sought to avoid hard-and-fast definitions in favour of flexibility, permitting the courts to adjust liability to respond to modern theories of tortious liability. Noticeably, although the meaning of the term is a question of law,Footnote 30 the Cour de cassation has not sought to impose a strict definition of ‘faute’, thereby permitting the lower courts the freedom to demand high levels of care with the aim of ensuring improved protection for victims and increased incentives for both accident prevention and insurance cover.Footnote 31
In the new Article 1352, the Working Group provides a revised general definition of fault: ‘A person must make reparation for the harm which he has caused through any type of fault. Fault consists of breach of a rule of conduct imposed by legislation or regulation or failure to conform to a general standard of care and diligence.’ No further guidance is given. Whilst the new Article 1352 is noticeably far more detailed than Article 1382,Footnote 32 setting out the standard of care needed with reference to external standards or a general objective standard of care, it is still, consistent with legal tradition, a general provision.Footnote 33 Whilst no doubt useful as a point of reference, it is legitimate to ask what this new provision seeks to achieve. Does it aim to provide a comprehensive definition of fault or merely to contribute to our understanding of the law?
It is helpful at this stage to refer to the recently drafted ‘Principles on Non-Contractual Liability Arising out of Damage Caused to Another’ stated by the Study Group on a European Civil Code (SGECC)Footnote 34 and the Principles of European Tort Law (PETL).Footnote 35 These are provisions drafted with pan-European consultation, benefiting from the input of leading scholars from all the European legal families. Whilst Article 3:102 SGECC bears a resemblance to the French provisions,Footnote 36 PETL provides a far more detailed and nuanced statement of liability, enumerating and describing the different factors taken into account. Article 4:102, PETL provides that:
The required standard of conduct is that of the reasonable person in the circumstances, and depends, in particular, on the nature and value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on, the foreseeability of the damage, the relationship of proximity or special reliance between those involved, as well as the availability and the costs of precautionary or alternative methods.Footnote 37
Both these statements are general in character. Article 4:102 of PETL, despite its greater detail, leaves open a number of questions, for example the weight to be given to the relevant factors and how to deal with their potential incompatibility. All three descriptions of ‘fault’ demonstrate the same strengths and weaknesses: they give a general overview of the relevant law, but the very structure of a code renders a more detailed exposition of the nature of fault problematic. Such provisions operate, therefore, with implicit recognition of the role of the courts in both applying and interpreting the provision in question. A further parallel may be drawn with section 1 of the Compensation Act 2006 in England. This provides that:
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might: (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.
The aim, we are told, is not to alter the standard of care, nor the circumstances in which a duty to take that care will be owed, but to reflect ‘the existing law and approach of the courts as expressed in recent judgments of the higher courts’.Footnote 38 As such, we may view it as a partial attempt to codify ‘breach of duty’ in negligence, seemingly to allay fears of the much-discussed ‘compensation culture’. Yet, again the same questions are raised as to interpretation as seen in relation to Article 1352. How will a court construe this provision? Can it simply be assumed that it will be interpreted consistently with existing case law, as stated in the Explanatory Notes to the 2006 Act, and not be reinterpreted?
A number of authors have questioned the utility of such reforms. Rebecca Herbert has commented that ‘[a] cynical observer might sum it up thus: s.1 provides nothing new, to address a problem that doesn't actually exist.’Footnote 39 Similar criticism has been directed at the new Article 1352. Jean-Sébastian Borghetti notes that ‘it is just repeating the definition most often put forward by doctrinal writers and supposed to reflect the state of case-law … it is permissible to wonder what then is its practical use.’Footnote 40 Perhaps the real issue is that one must be realistic about the role of any general definition of fault. In attempting to articulate in simple terms the process of balancing a number of varying factors, it is difficult to produce anything more than an overview of the current position. This will practically be of limited assistance to litigants and one might question what this adds to our current understanding of ‘fault’.
A further concern derives from the ambition of the reformers not merely to restate the law of delict in more detail, but to draw out key principles of liability applying to both contract and tort law. An introductory section therefore commences by formally recognizing core principles of liability common to both heads. Article 1340 thus states:
Any unlawful or abnormal action which has caused harm to another obliges the person to whom this is attributable to make reparation for it. [responsabilité extracontractuelle]
Similarly, any non-performance of a contractual obligation which has caused harm to its creditor obliges the debtor to answer for it. [responsabilité contractuelle]
This is described as ‘an announcement for later articles’,Footnote 41 but leaves an obvious conundrum: what is its relationship with the more specific definitions of delictual liability and, indeed of contractual liability,Footnote 42 set out in later articles? If one is liable for any unlawful or abnormal action which causes harm to another (Article 1340), does this include the fault described in Article 1352 or provide a competing definition? Does one start with Article 1340 or use it as a point of reference in case of uncertainty? If it is merely a general introductory provision, what does it add to our understanding of Article 1352? Bearing in mind the broad interpretation given to Article 1384(1), described above, itself originally viewed as an introductory provision to the more detailed legal rules stated in the remainder of the article, one must approach such ‘dispositions préliminaires’ with caution. It is unsurprising that the French Bar has already recommended its deletion to prevent the insertion of a ‘source d'insécurité juridique persistante’ at the heart of the Code.Footnote 43
On this basis, it would appear that the fault provisions add little to our existing understanding of the law and, far from decreasing uncertainty, create confusion by failing to delineate the relationship between Articles 1340 and 1352. These provisions also illustrate one of the limitations inherent in any codification project, namely the difficulties of providing a concrete definition of fault when, in reality, much will rest with its interpretation by the courts themselves.
B. Determining a Modern Role for Strict Liability
Whilst the delictual liability section starts with a statement of fault-based liability (Articles 1352 and 1353), the remaining provisions (Articles 1354–1362) impose strict liability. This contrasts immediately with the fault-based structure of the 1804 Code which centres around Articles 1382 and 1383. Yet, from the late 19th century, the courts have been particularly active in expanding the strict liability provisions of the Code, notably Article 1384, to meet increasing concern for victim protection. Strict liability has thus grown exponentially, notably with the growth of liability for the ‘acts of things’ (fait de choses)Footnote 44 and ‘acts of others’ (fait d'autrui)Footnote 45 intervening to protect victims of defective products, car accidents and those injured through the intentional or negligent misconduct of employees, children and other persons for whom an (insured) party can be deemed responsible.
The challenge facing the reformers was how to deal with this. The interpretation of Article 1384(1), discussed above, is rightly infamous. Professor Bell describes it as the best example of the court using its judicial function to make changes; here to force the hand of the legislator to implement legislation protecting the victims of motor and workplace accidents.Footnote 46 The decision of the Viney Commission not only to incorporate many of these developments, regardless of any legislative response, but also to expand the strict liability provisions of the Code, is controversial, and signifies a clear step towards a compensatory system based on ideas of social risk.
(i) Liability for the acts of ‘things’ (Articles 1354–1354-4)
In choosing to give formal recognition to this doctrine, as developed by case law, the Viney Commission appreciated that such a recommendation would be contentious, noting that it had no foreign counterpart and can work extremely harshly.Footnote 47 Whilst a significant means of protecting victims in the past—indeed the concept was developed to respond to the growth of accidents following industrialization for which the fault-based principles of Article 1382 appeared inadequate—it cannot be ignored that the classic cases dealing with industrial accidents and motor-vehicle accidents are today covered either by social security measures or specific legislative regimes. The absurd technicality of this head of liability must also be considered. A good example arises in the recent case of the second chamber of the Cour de cassation in 2003.Footnote 48 Here the court was asked to consider whether an alpine climber scaling a mountain with friends could be considered liable for the ‘act’ of the stone which he dislodged with his foot and which struck his friend below, causing him to fall and seriously injure himself. The Cour de cassation, after due consideration, came to the conclusion that a climber slipping and dislodging a rock did not have ‘management and control’ over the ‘thing’ and hence had not shown the use, control and direction required to impose a custodial duty. Such reasoning does little to promote the utility of this doctrine in modern times and unduly complicates the treatment of a simple climbing accident. The final resolution not only to retain existing law, but to expand it to include a special provision dealing with liability for dangerous activities (Article 1362) runs the risk of imposing an increasingly onerous burden on innocent defendants. It can only be explained by what Pauline Rémy-Corlay has called the ‘victimophile’ tradition of French law:Footnote 49 a willingness to expand private law principles to ensure compensation for victims placed at risk by the acts of others. This trend is particularly evident in the provisions examined below.
(ii) Liability for the acts of others (Articles 1355–1360)
It is in the field of liability for the acts of others that the reforming zeal of the Avant-projet comes to the fore. The scope of this form of liability has troubled most legal systems in recent years. In England, the House of Lords in Lister v Hesley Hall Ltd Footnote 50 came to the conclusion that a more generous approach was needed to vicarious liability than that previously advocated: an employer would be vicariously liable for misconduct by the employee, be it negligent or intentional, which was closely connected to the employment. While Canadian law also utilizes the ‘close connection’ test,Footnote 51 the High Court of Australia continues to struggle to find a single test to explain the scope of this principle.Footnote 52 In Articles 1355–1360,Footnote 53 an attempt is made to set out a broad test of liability which potentially imposes strict liability on parents, institutions for children and adults with special needs, prison authorities, employers, and even parent companies and franchisors for their subsidiaries or franchisees.Footnote 54 Collectively, liability is placed under two headings:
(i) those having organization, regulation or control over the way of life of minors or adults whose condition or situation requires some special supervision; and
(ii) those who organize and profit from the activity of other persons.
The opportunity is taken to concretize certain key definitions, for example that of ‘employer’ and ‘scope of employment’,Footnote 55 and to remove some of the excesses of the existing law, for example the provision that parents should be strictly liable for minors without proof of fault by the minor,Footnote 56 which is to be welcomed. Yet, whilst a structure is thereby provided which liability under Article 1384, thanks to ruthless case law expansion, did not possess, the reform not only consolidates the existing generous rules of strict liability, but extends them further.
The most noticeable extension may be found in Article 1360, which imposes liability on parties regulating or organizing the professional or business activities of others to their economic advantage, or which control the economic or financial activities of another business or professional person who is factually (if not legally) dependant on them.Footnote 57 Professor Viney, one of the key drafters, comments that ‘[t]his example of liability would be entirely new, but the members of the working group thought that it would be extremely useful to adjust the law of liability so as to reflect the radical changes which have occurred in the way in which economic relations are structured, as regards both production and distribution.’Footnote 58 The aim is thus to extend liability beyond the employer/employee context, recognizing that, in modern economic conditions, dependency exists not solely within a contract of employment, but within a far greater range of models.
This raises a number of concerns. Such liability, we are informed, is targeted at doctors (under the first head) and parent companies and franchisors (under the second), but due to the imprecise terminology used, clearly has the potential to go further.Footnote 59 Further, the reforms do not claim to be responding to any national outcry for liability or any consensus for change, but, as Professor Viney stated, signify an attempt to give greater protection to victims in the light of economic development. No reference is made in the accompanying note to insurance concerns, the impact on loss distribution and the economic rationale behind such models or whether there is a real social need for such an extension of liability. Neither is there an equivalent provision in PETLFootnote 60 or SGECC,Footnote 61 suggestive of a broader European consensus. Unsurprisingly this proposal has met a very cool reception from the business community,Footnote 62 and other interested parties who highlight potential difficulties in interpretation.Footnote 63 More fundamentally, it raises the question whether a codification or restatement of principle is the correct vehicle for such a significant development. The negative reception that Article 1360, in particular, has received suggests the importance, at the very least, of consultation with the relevant interested bodies before engaging in a major reform of the law of tort which will considerably increase the scope of tortious liability.
Such considerations apply to the next provision examined: the decision to add a new article imposing liability for harm resulting from an abnormally dangerous activity.
(iii) Strict liability for dangerous activities (Article 1362)
It is this provision which raises in sharp focus some of the issues highlighted in this article, namely the acceptability of using reform to innovate solutions without first achieving some form of consensus or even consultation, and internal inconsistencies between reform provisions.
The Article states the following:
Without prejudice to any special regulation governing particular situations, a person who undertakes an abnormally dangerous activity is bound to make reparation for the harm which results from this activity even if it is lawful. An activity which creates a risk of serious harm capable of affecting a large number of people simultaneously is deemed to be abnormally dangerous. A person who undertakes an abnormally dangerous activity cannot escape liability except by establishing a fault in the victim in the circumstances set out in articles 1349 to 1351-1.
This is described as ‘a regime of liability suitable notably to deal with large-scale industrial catastrophes’, such as the explosion at the AZF factory in Toulouse on 21 September 2001, in which 29 people died.Footnote 64 In effect, it imposes strict liability on any person engaged in an ‘abnormally dangerous activity’, defined as one creating a risk of serious harm to a large group of persons simultaneously, subject only to the defences of volenti or contributory negligence.
The new Article 1362 bears some resemblance to the provisions in the US Restatement on Torts (Second) which provide that ‘One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.’Footnote 65 Liability is, however, limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.Footnote 66 There is no such limit in the French provision. §520 additionally defines abnormally dangerous activities by reference to a number of factors: degree of risk; likelihood of harm; ability to eliminate risk by reasonable care; whether the activity is common or appropriate to the place where it is carried on; and value to the community.Footnote 67 The French proposal focuses solely on the risk created. As such it far exceeds its US counterpart.
It also presents a marked contrast to the English rule in Rylands v Fletcher,Footnote 68 which in fact inspired the United States provision. In 1947, the English House of Lords firmly rejected the prospect of Rylands v Fletcher acting as a strict liability rule for ultra-hazardous activities, confining the rule to one regulating the mutual obligations of neighbours.Footnote 69 Later case law has confirmed this stance. Liability thus requires an escape from land under the control of the defendant to the claimant's neighbouring land,Footnote 70 causing damage which is reasonably foreseeable.Footnote 71 Most recently, their Lordships in Transco plc v Stockport MBC,Footnote 72 albeit after some debate, decided to retain the rule in English law, but in the form of an exceptional head of liability arising in extraordinary circumstances which is part of the common law tort of private nuisance.Footnote 73 Their Lordships acknowledged that it will usually have no application to high risk activities, which will generally be dealt with by legislation.Footnote 74 The increase in statutory regulation led one judge to question whether such provisions create an exhaustive code of liability for a particular form of escape which excludes the rule in Rylands v Fletcher.Footnote 75
A number of comments may be made. First, the French provision, in following (loosely) the US Restatement, is creating new law.Footnote 76 Secondly, the US provisions cannot be said to be an overwhelming success. As Nolan has recently noted,Footnote 77 American law has found it difficult to determine which activities are in fact classified as ‘ultra-hazardous’ and, in reality, the doctrine plays only a subsidiary role in modern tort law, in which a huge number of dangerous activities have been found to be outside the doctrine.Footnote 78 Thirdly, the merits of the United Kingdom approach are worthy of consideration. As Article 1362 itself acknowledges, special regulations already govern many dangerous activities such as air, nuclear and industrial accidents. If the new codal provision is ‘without prejudice’ to such provisions which provide considered and specifically oriented responses to particular types of disaster, there is a problematic overlap, particularly if Article 1362 is interpreted in a manner generous to litigants. There is a clear risk of undermining such provisions. This leads us to the question raised in Transco: what high-risk activities are not regulated by the State or international bodies? Should one regard Article 1362 as a mere fall-back provision? The wording of the provision indicates that this is not the drafters' intention. More fundamentally, in 2008, should we be dealing with large-scale disasters whose ripple effect goes far beyond the immediate victims by means of private law measures at all? Such a reform in this light appears old-fashioned, rather than producing a codal provision for the 21st century. It emulates far too closely the existing liability for the ‘acts of things’, with which it overlaps and conflicts.Footnote 79 It is true that specific legislation runs the risk of gaps in the regulatory web, which a general tort provision may overcome, but in view of the disagreement amongst economic theorists as to the merits of strict liability in this context,Footnote 80 such a debate is surely better left in the hands of the legislator than individual courts.
C. Integration of Legislative Reforms at a National and European Level
This section considers a problem facing any new code, and one which stimulated the German codal reforms of 2002.Footnote 81 A modern private law code will coexist with a number of legislative provisions at a national and European level. An increasing number of directives, for example, must be integrated into national private law. A legal system has a number of choices. Whilst it might be easiest to leave any resulting legislation outside a code, this will diminish the impact of the code as a primary source of law for litigants. Should one therefore attempt, as in German law, to integrate some of these provisions into a revised code, or even create new codes which incorporate these changes?Footnote 82 Put simply, just how comprehensive can a modern code be?Footnote 83
The Avant-projet represents a curious compromise. Two legislative regimes are integrated in a section placed at the end of the Civil Liability Part entitled ‘The principal special regimes of liability or compensation’, namely the 1985 loi dealing with road-traffic accidentsFootnote 84 (expanded to cover all traffic accidents) and the existing provisions implementing the product liability directive of 1985.Footnote 85 No other legislative provisions are considered. These detailed provisions stand in their own right and there is no cross-reference or integration with earlier provisions. This result, reached in the face of disagreement amidst the Tort Working Group, is less than satisfactory.Footnote 86 Whilst positively it will increase awareness of the traffic provisions, and incidentally presents Professor Viney with the opportunity to amend the provisions she subjects to strong criticism in her textbook,Footnote 87 it is possible to argue that traffic accidents and defective consumer products are not the foremost legislative provisions in French law. Can one legitimately choose and prioritize provisions in this manner, without at least a clear debate? Structurally, one must also question where this leaves the Code. These provisions are not consistent with the style of earlier articles, but betray their legislative origin. Should they withstand the telelogical interpretation of the remaining provisions, or be taken more literally? Does the decision to place them within the Code alter their status in terms of interpretation? Fundamentally, one must question whether by adding such provisions one is actually changing the very nature of the code as a resource to litigants and society in general.
D. Other Provisions
Further reforms may also be briefly noted. Prefential treatment is given to personal injury victims, again consistent with the ‘victimophile’ intentions of the Working Group. Specific provisions render it easier to claim compensationFootnote 88 and provide notably a more structured legal framework for its assessment.Footnote 89 Nuisance, traditionally viewed as part of property law, is, in Article 1361, drawn back into the tort fold. A brave attempt is made to find common principles of contractual and delictual liability, thereby modifying the clear distinction in the 1804 Code between contract and tort. This latter step is controversial on a number of levels. First, it requires one to accept the commonality of the concept of ‘fait illicite’, or ‘unlawful act’,Footnote 90 in contract and tort, which unsurprisingly is a view not shared by all.Footnote 91 Secondly, it is difficult to reconcile with the decision to retain the principle of non-cumul (non-accumulation of actions) in Article 1341, save for personal injury claims, despite the fact that it is rejected by most European States. One may wonder whether what one gains in terms of simplicity—common points of reference, lack of repetition—one will lose in terms of difficulties in interpretation and changing existing perceptions of the roles of contract and tort.
In contrast, the Tort Working Group is on more solid ground in relation to the question of ‘harm’ and how it is assessed. Common lawyers familiar with the rules of quantum will feel comfortable with Chapter III, Section 2 (Rules Special to the Reparation of Certain Types of Harm).Footnote 92 In seeking to give much-needed clarity to the assessment of compensation, the Avant-projet sets out a number of rules applying to personal injury, property and debt claims. Here, the aim seems to be to restore certainty to existing law—at present largely left to the discretion of the lower courts and therefore without any clear exposition or provision of guidance.Footnote 93 The motivation here is different: clarification both of existing rules and future statements of law. Here, codification has a real purpose—acting as a point of reference for all involved in the legal process.
E. Conclusion to Part III
In sum, the Avant-projet de réforme proposes fundamental changes to the French law of delict, expanding strict liability, modifying existing codal and legislative provisions, altering the structure and style of the existing code and integrating some, but not all, case law solutions. It has, perhaps predictably in view of the comments above, met a mixed reception in France.Footnote 94 Whilst no one can doubt the scholarship, hard work and conviction of its drafters, it has perhaps fallen victim to its own ambition. There is no indication that it will be accepted in full by the Government.Footnote 95 In this light, the final section of the article will attempt to analyse what gains comparative and European private law may obtain from this exercise. What lessons may be drawn from this most recent example of codification of the law of tort?
IV. Codifying the Law of Tort
Analysis of the Avant-projet Catala reveals many of the challenges facing any codification or restatement exercise. In attempting to revise an existing code in the light of modern legal developments, both on a national and European scale, the reformers confronted a number of key questions, notably, that of ambition—does codification represent a chance to set out underlying principles of existing law or present the opportunity to develop new principles of law to take tort law into the future?Footnote 96—and legitimacy—on what basis can a non-legislative body undertake fundamental changes to national law? Without a clear understanding of its objectives and how to legitimize these to the legal community to which it is responding, the exercise is meaningless.
A number of important issues may therefore be raised. First, one obvious concern is the fact that the tort law provisions have been prepared by academics alone.Footnote 97 Whilst this has led to a theoretically and conceptually advanced model, one should not neglect the benefits undoubtedly to be gained from the input of practitioners, litigants, other interest groups and the public at large. In view of the extension of liability proposed in the Avant-projet, such consultation would appear of particular importance. This is now taking place and valuable feedback has been received from the French Bar, commercial organizations and the Cour de cassation (which has also consulted widely).Footnote 98 Yet, in view of the criticisms raised in these reports, it is submitted that input at an earlier stage would have avoided many of the negative comments which have cast doubt on the viability of the project. It is interesting to compare the work of the Commission with that of the English Law Commission, which has a stated commitment to consult prior to producing a final report.Footnote 99 Former Law Commissioner Hugh Beale has identified clear differences in style and methodology between the English and French approach, noting that in England, any such proposal for reform would involve consultation, a study of the practical impact of the reforms and, in principle, a Regulatory Impact Assessment at the legislative stage, examining the costs and benefits of the proposed reforms.Footnote 100 One must query whether ex post facto consultation can really achieve the consensus needed to produce a code representing the law of a nation.
Other concerns may be raised. For example, there is the question of timescale. The Avant-projet was started in 2003, and the document was completed in the summer of 2005. Famously the original Code civil was drafted in four months. The Dutch Civil Code was started in 1947 and is still incomplete, although the books dealing with the law of obligations were published in 1992.Footnote 101 It is unclear what an ‘optimum’ timescale would consist of, apart from the common-sense view that the more time that exists for reflection, the less likely it is that errors will persist. One problem with the current Avant-projet, which may be due to the short timescale, is the potential for a number of articles to conflict. Such inconsistency creates uncertainty in the application and interpretation of the Code.Footnote 102 Retaining both liability for the ‘acts of things’ and introducing specific liability for dangerous activities is one such instance and, in my view, such problems are too readily dismissed by the drafters. Whilst consultation will no doubt identify such inconsistencies, it is obviously desirable to avoid such potential problems whenever possible.
Further, how does one find a balance between generality and specificity in drafting codal provisions? Here, much seems to rest on the legal culture of the State. In retaining general provisions, but with added detail, the reformers maintain their adherence to the French delictual tradition and their ongoing faith in the interpretative role of the courts. With this in mind, Article 1352 raises a fundamental question as to the extent to which additional detail may in fact assist our understanding of legal principle. Assuming that the explanations of ‘faute’, or ‘breach of duty’ (in the English example), are there to provide legal certainty and a reference point for the judiciary and litigants alike, it is questionable whether these goals can be achieved in practice in systems where tort law is primarily a creature of the courts. One must wonder whether such statements provide merely window-dressing to satisfy broader political concerns of responding to perceived uncertainty in the law, when the law may, in reality, only be found in a study of case law and academic commentary.
The Avant-projet Catala thus demonstrates at first hand the difficulties and compromises necessary in achieving any form of codification which represents a statement of agreed principle. Despite their stated aim to merely ‘adjust’ the provisions of the Code civil, the Viney Commission recommendations, in extending liability for the acts of others and strict liability in general, firmly assert that victim compensation is the overwhelming objective of French tort law. The impact of this policy decision, notably in terms of the cost to defendants and insurance companies, would be significant and it is perhaps unsurprising that the delictual provisions of the Avant-projet have yet to be implemented. This is not to undermine what the Avant-projet does achieve, however. The reforms restate and clarify a number of case law developments, acknowledge legislative intervention (notably in the case of road accidents and defective products) and provide a number of helpful definitions. Their clarification of the principles underlying the assessment of damages, in particular the proposal that courts set out distinctly each head of loss, is to be welcomed. In so doing, it provides what the Cour de cassation Working Group has described as ‘the defence in Europe of the best of French law’.Footnote 103
Yet, for comparative lawyers, the Avant-projet is of particular importance in raising fundamental questions of how legal systems should respond to legal change using the medium of codification or restatement. Issues of scope, legitimacy, timing, structure and style are all shown to arise in the course of any such project. A study of the proposals is therefore capable of throwing fresh light on the ongoing debate as to the form and content of any codification process. There can be no doubt that those interested in tort reform and codification in general have much to gain from a study of this latest contribution to modern tort law.
