Cour de cassation

The Court:

Given that there was a dispute between the brothers Bourdeaux and Pelletier regarding the construction of a sewer along the wall separating their properties in Le Creusot, that the judge at first instance appointed three experts to ascertain the facts, that the parties came to a compromise and had the experts draft a document to record it, that the Pelletier brothers approved and signed this document on being assured by the draftsmen that it involved them in no renunciation of any property right in the wall, that by decision of 19 December 1911 the Court of Appeal at Dijon decided otherwise since their rights were not expressly reserved, that the Pelletier brothers sued the experts for compensation for the harm they had suffered harm as a result of the faulty drafting of the document, and that their claim was dismissed;

Given that the appellants maintain that the defective drafting of the document constituted a fault (faute), that every fault obliges the person responsible to repair the harm it causes and that in this case the experts, being paid, were answerable not only for malice but for any fault;

But given that the rule that any fault at all generates an obligation to repair the damage resulting from one's act applies only in delict and quasi-delict; that articles 1382 ff. do not apply to fault committed in the performance of an obligation arising from contract, and that in such a case the principle is laid down by article 1137 Code civil which provides that the debtor is answerable only for such faults as would not be committed by a reasonable person (bon père de famille);

Given that the judgment under attack held that the error of the experts was excusable because, although they were chosen by the parties to draft their agreement, they were not lawyers, being respectively an engineer in the Ponts et Chaussées, an architect and a building contractor, and also that the Pelletier brothers should have refused to approve and sign the proposed draft if it did not contain all the reservations they desired, and that having done so they have no one to blame but themselves for the harm they allege it caused them; and that in consequence the draftsmen, whose good faith is not in doubt, are not liable;

Given that in so deciding the decision under attack has not violated any of the legal texts cited by the appellant;

For these reasons DISMISSES the application for review..

Subsequent Developments

Doctrine upheld. See also Civ.2, 6 October 1965, Bull no. 702: “Contractual and tortious liability are not cumulative.” More recent judgements: Civ.1, 19 March 1985 (Bull. no. 96), 5 June 1991 (Bull no. 165), Civ.2, 26 May 1992 (Bull no. 154). Civ.1, 27 January 1983 (Bull no. 42), or, finally, Civ.2, 9 June 1993 (Bull no. 204): “Article 1382 of the Civil Code does not lie in an action for damages resulting from the performance of a contractual obligation”.

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