D. 1991, 449 JCP 1991.II.21763 Case Lothioir, Minit Foto v. Baucheron
14 May 1991
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Professor B. S. Markesinis

The Court:


Given that the judgment under attack held Minit France liable to M. Baucheron in the sum of 3,000 francs as damages for the loss of the eighteen slides which he had delivered on 4 February 1989 to Minit Foto, the Béthune branch of Minit France, so that they could be copied;

Given that Minit France asserts in its complaint that in simply stating without elaboration that Minit Foto was under an obligation de résultat whereas the depositee is under only an obligation de moyens as regards the safekeeping of the thing entrusted to him for work, the judgment below was without legal basis, as it was in holding without elaboration that the exemption clause contained in the receipt for the slides was abusive and could not be opposed to a customer in good faith, whereas clauses which restrict or limit the liability of a person taking on work are quite lawful (articles 1137, 1787 and 1927 Code civil);

But given, first, that under article 1789 Code civil a person taking on work for a fee is bound to return the thing received and cannot avoid liability for failure to do so unless he proves that he was not at fault, from which it follows that, ignoring the superfluous reason given by the court below relating to the obligation de moyens, the judgment below is legally justified, seeing that it is not known how the slides were lost; and given, secondly, that the judgment below, having found that the clause in the receipt, which completely exempted the laboratory from all liability for the loss of the slides, was unduly advantageous to Minit France which was in an economic position to impose it on its customers, was quite right to hold that the clause was abusive and should be struck out; that in consequence neither limb of the application for review can be upheld;

For these reasons DISMISSES the application for review.

This note on subsequent developments reflects the legal situation as of October 2004.

Civ, 14 May 1991 : This judgment affirms two solutions:

a) The abusive character of a clause which exempts a laboratory instructed to develop photographs entrusted to it from all liability in case of loss of these slides. This solution comes within a line of case law which has been progressively elaborated after the Law of the 10 January 1978: it then falls to the regulatory power to define the clauses considered as abusive. The legal writers and then the case law have expressed the hope that it would be recognised that the judges have power to deem a clause not to have been included, because of the economic power of one of the parties, and because it procures for that party an excessive advantage to the detriment of the other party. The present judgment firmly asserts this possibility and the solution which it lays down has often been repeated since (cf particularly Civ 1, 10 February 1998, Bull no 53 or, in a case similar to that in the judgment of the 14 May 1991, Civ 1, 19 June 2001, Bull no 181). The coming into force of a Law of the 1 February 1995, intended to make French law conform to a Community Directive of the 5 April 1993 does not seem to have fundamentally altered the case law of the Cour de cassation on this point.

b) When a contractor is obliged to restore objects which have been entrusted to him, only proof of absence of fault can exonerate him from his liability in case of loss or destruction of these objects. A judgment of the 9 February 1966 (Civ 1, Bull no 103) had already asserted this principle, making it clear that the contractor must prove that he has taken all the precautions necessary to avoid this loss. More recently, other judgments have repeated this solution (Civ 1, 20 December 1993, Bull no 376 and 11 December 2001, Bull no 312, Civ 3, 17 February 1999, Bull no 41).

Translation by Raymond Youngs

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