Cour de cassation

The Court:

In view of article 1382 Code civil:

Given that it emerges from the judgment under attack (Tribunal de commerce du Havre, 13 February 1912) that when Lanctuit and Delamare sued Bauzin & Co., maritime agents at Le Havre, for damages in respect of the loss through theft of three sacks of coffee which they had deposited with Bauzin & Co., the latter relied on a clause in the receipt exempting them from all liability for damage to items deposited with them, whether by fire, damp, loss, or any other accident, the goods being accepted for deposit only as a courtesy and with no obligation undertaken;

Given that if in principle such an exemption clause does not release the depositee from all liability for faults committed by himself or by his agents, it nevertheless has at least the effect of putting on the depositor the burden of proof, in derogation from the usual rule of law;

Given that the judgment below, while appreciating this, nevertheless granted the claim by Lanctuit and Delamare for the value of the sacks which disappeared, and declared that in the absence of proof of facts which showed that there was no negligence, the very theft of the goods must be taken to result from a lack of proper care in supervision;

But given that in inferring fault from the mere fact of loss, without adducing any particular fact indicating a fault chargeable to the depositee or his agents, the judgment lacks legal basis, and that the tribunal thus violated the legal provision cited above;

For these reasons QUASHES the decision below.

Subsequent Developments

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

Civ, 9 November 1915: the clause by which a depositary exonerates himself from all liability for accidents which befall goods deposited in his warehouses requires the depositor to prove fault committed by the depositary or by his agents. A judgment which is limited to demonstrating that such a fault is established from the very fact that the goods entrusted have been stolen does not describe this fault, which cannot be deduced from the event itself, but must be described by facts which are precise and constitutive of a fault which can be imputed to the depositary or to his agents. Case law abandoned.

Cass, civil chamber, commercial section, 15 June 1959 [Bull no 265, Dalloz 1960, p 97]: "Only dol and serious fault (faute lourde) by the party who, in order to escape his obligation, invokes a non-liability clause inserted in the contract and accepted by the other party, can defeat the application of the said clause". Case law maintained (but weakened).

Cf Juriclasseur Civil, Ph Delebecque, 1998, arts 1146 to 1155, instalment 21, "Conventions relative a la responsibilite" (Agreements in relation to liability): after having considered them as void, case law then acknowledged that such clauses had the sole effect of reversing the burden of proof. The judges, anxious to respect the principle of freedom of contract, thus adopted a compromise solution, making reference to the gravity of the fault committed by the debtor and proved against him, in order to explain that, in spite of the clause, the debtor is bound to make reparation for the harm (Cass req 15 May 1923, 24 October 1932, 31 May 1938). By their insistence on proof of a serious fault (faute lourde) or fault amounting to dol, these decisions leave the impression that in the absence of dol or serious fault, the clause would be admitted to produce an absolute effect, without proof of slight fault (faute legere) being able to defeat this. This solution was to be accepted a little later by the social chamber of the Cour de cassation which confirmed in a judgment of the 15 July 1949 that "in the presence of a non-liability clause, the judges of the lower courts are bound to investigate whether the fault found by them on the debtor's part is of such gravity that it cannot be covered by the parties' agreement". This new case law therefore no longer limits the effect of non-liability clauses to a reversal of the burden of proof, but makes them give rise to complete exoneration from liability, even if the victim proves the debtor's fault, on condition nevertheless that this fault is not sufficiently grave (grave), nor having the character of dol, nor even serious (lourd) (Com 6 July 1955, 15 June 1959, and 4 January 1979, Civ 2, 10 February 1966 and 12 October 1978, Civ 3, 22 April 1980, Civ 1, 12 December 1984 and 24 February 1993). Case law therefore now acknowledges that agreements of non-liability attain a compete degree of efficacy when the debtor can only be accused of slight fault.

For an analysis which is similar but more critical, see "Les grands arrets de la Jurisprudence" (Leading judgments in case law): for the authors, these two judgments (1915 and 1959) "illustrate the movement of progressive liberalisation from which clauses relating to liability have, at first, benefited in the course of this century", it being stated that "for the last approximately twenty years a tide of case law and legislation has been running in the opposite direction" ending in "progressive suppression of clauses relating to liability". The judgment of 1915 led principally to a change in the burden of proof. The Cour de cassation then reviewed its case law, in particular with a judgment of the 15 June 1959, making these clauses give rise to" a more complete exoneration from liability; only the proof of dol or serious fault (faute lourd) holds a non-liability clause in check. It is therefore effective in the face of slight faults". Nevertheless, without calling in question the principle laid down by the judgment of 1959, case law and legislation have endeavoured to limit its effects "by giving a continually larger significance to the concepts of dol and serious fault (faute lourd)" (Civ 1, 21 October 1975 for dol, Com 3 April 1990, 17 November 1992, 11 July 1995 as to serious fault: there is serious fault because there is a breach of an "essential" or "fundamental" obligation of the contract or a "substantial condition" of it: Civ 1, 2 December 1997) and "by a continually narrower definition of the area in which the traditional solution is permitted to succeed" (clauses restricting liability are more and more frequently deemed not included, particularly through the effect of the development of consumer law). Because of this, "the concept of serious fault can be accepted even though the debtor could only be accused of imprudence or benign negligence" (Civ 1, 22 November 1978), allowing the application of clauses of non-liability to be restrained without, however, calling in question their validity in principle.

Translation by Mr Raymond Youngs

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