Cour de cassation

The Court:

In view of article 1382 Code civil;

Given that a person whose fault, even if criminal, has caused damage is partially relieved of liability if he proves that fault on the part of the victim contributed to the harm, that this is so not only when it is the victim himself who is claiming damages but also when they are claimed by a third party who, suing on his own behalf, seeks reparation for the harm he has personally suffered as a result of the death or personal injuries of the victim, and that, although the third party's claim is distinguishable as regards its object from that of the primary victim, even if the third party is the victim’s heir, it nevertheless originates in the same set of facts;

Given that Maurice Foubert died as a result of a collision between the vehicle he was driving with his wife and daughter, Florence, as passengers, and a truck belonging to the Société des transports Rochais-Bonnet and driven by Luc Mandin, and that suit was brought by Mme Foubert, the widow, as partie civile, acting in her own name and also in the name of her minor daughter Florence, seeking damages for the harm resulting both from the injuries sustained by them in the accident and from the death of the husband and father, and also by Didier Foubert, the adult son of the victim, seeking damages for the moral harm he suffered owing to his father's death: Given that the judgment under attack (Orleans, 12 May 1978) decided that in the absence of any fault on the part of the claimants themselves their claim could not be reduced by reason of any fault committed by Maurice Foubert;

Given that, while the judgment is correct with regard to the personal injuries suffered by Mme Foubert and Florence Foubert, that being harm for which they could claim a complete indemnity from anyone liable, this is not true of the damage flowing from the death of Maurice Foubert, whether to them or to Didier Foubert, and that in ignoring any fault committed by the decedent when compensation was sought for the harm resulting from his death the Court of Appeal violated the text cited above; For these reasons, but only in so far as it held that fault on the part of Maurice Foubert could not be opposed to the claimants seeking damages for the harm suffered by them owing to his death,

QUASHES the decision of the Court of Appeal of Orleans.

Doctrine upheld: See “civil” Jurisclasseur: According to art. 1382 of the Civil Code, the judge is free to hold the existence of a wrong even in the absence of any provisions of law; art. 1383 of that same Code even seems to refer to abstention by declaring that negligence causing harm necessarily entails reparation. So it is clear that, in certain cases, abstention can be a wrong. The wrong of abstention follows the general rules defining a wrong; it is enough to see that the person in question has failed to do what any reasonable person in his place would have done. A large number of cases have found the existence of an “obligation to act” as against the perpetrator of a wrongful abstention. However, it is necessary to specify the possible sources of this obligation to act. Whereas the cases originally restricted these sources to formal ones (a legal or regulatory obligation and a contractual obligation to act), it has now extended them to professional standards (Civ, 27 Feb. 1951), thus implicitly recognising that the judge has the discretionary power to find a wrongful abstention. Furthermore, it now seems that an abstention can be wrongful in the absence of any positive standard prescribing an obligation to act. It is true that most of the cases in which a wrong is recognised correspond to cases of omission linked to a particular activity. This has led authors to recognise, but only with great caution and much hesitation, that abstention by itself may give rise to liability, without there being any question of the breach of an obligation to act or the existence of an intention to cause harm. There is no doubt that an area of uncertainty remains as regards recognising wrongful abstention. This uncertainty reflects the leniency of courts in cases when they seek to preserve the individual’s right to remain passive in certain circumstances. However, it must not be deduced from this that, in the absence of any positive obligation to act, non-malicious abstention standing by itself can never be wrongful. Even if the cases are less frequent, there are a few judgements in which a wrong has been found.

A judgement by the Court of Cassation of 24 Dec. 1924 held as a principle that “each person is liable for his negligence, but failure to act only entails liability insofar as the person to whom it is imputed was under the obligation to carry out the omitted act”. Other judgements explicitly restrict the sources of that obligation to law and contract (Civ. 28 Jan. 1930). According to that line of cases, it was necessary to break a formal obligation to act in order for the wrong of abstention to be found to exist (Civ., 28 Oct. 1935 and 24 Mar. 1936). But in the famous Branly judgement of 27 Feb. 1951, the Court of Cassation substantially broadened the obligation to act by adding professional obligation to it, the Civil Chamber stating that, as a principle, abstention makes the perpetrator liable “when the omitted act should have been carried out, either on the strength of a legal, regulatory or contractual obligation, or [also] in the practice of a profession”. Through this judgement, the supreme court considerably broadened the scope of the wrong of abstention. The obligation to act, the breach of which amounts to the wrongful failure to act, is no longer necessarily a formal, legal or statutory obligation; it can be an obligation based on professional custom which the judge is bound to recognise, institutionalise and sanction.

One of the most common ways in which professional obligations demand a positive action is precisely illustrated by Branly’s judgement. It regards the failure to quote a person by the author of an article or a book. As was stated by the Court of Cassation, there is in such circumstances a necessary limit to freedom of expression, namely the duty to provide the public with objective information. The judgement under attack, which had not found any wrong, was quashed, because the Court of Appeal should had investigated whether the author had acted as a cautious historian, well-advised and conscious of his duty to be objective. The following have also been found to be wrongful: the failure by a novelist to quote the works and name of an archaeologist whose findings were used to describe the life of one of his characters (CA Aix-en-Provence, 13 Jan. 1958), or the failure to indicate in a learned paper that the presentation made at a congress and to which reference is made is the result of a competitor’s work (Com., 25 May 1982: Bull. IV, no. 198). An Employers’ Federation which publishes the names and addresses of specialised industries, emphasising that they are reliable manufacturers, without including the name of a non-member, commits an act of disparagement by omission, tantamount to unfair competition (Com., 6 Mar. 1978: Bull. IV, no. 80). However, the obligation to cite is not as vital for all authors of works or articles, because they are not all duty bound to the extent that historians are to provide the public with objective information. Thus it was held that a journalist committed no wrong in omitting from a legal column the name of the advocate who had pleaded in Court (Civ.2, 17 Jul. 1953). Similarly, a surgeon who fails to mention the work of an expert in a paper given at a congress is not at fault (Civ.2, 31 Jan. 1964). Even for historians, an omission is not always wrongful (Civ.1, 15 Jun. 1994, Bull I, no. 218: a historian setting out, in a sequence of others, the opinions of a person without presenting her as a spy in the service of a foreign power).

Even outside the cases where there exists an obligation to act it is usually accepted that malicious abstention with an intention to harm another always constitutes a wrong. Case law has had the opportunity to apply the doctrine of intentional abstention as regards a the refusal by a husband of Jewish faith to provide his spouse with the “gueth”, a letter of repudiation making a religious re-marriage possible (Civ.2, 5 June 1985, 15 June 1988, 12 December 1994). These judgements, often based on the doctrine of abuse of law, do not always require the intention to harm, as, while intentional abstention is wrongful, the intention to harm is by no means the only criteria for the wrong of omission in the absence of an obligation to act. In the Branly judgement, the Court of Cassation clearly indicated this, emphasising that “abstention, even if it is not dictated by the intention to harm, renders its author liable…”. This result is inevitable, because the fault of abstention, while it can be intentional, can [also] be a mere act of negligence in the meaning of art. 1383 of the Civil Code.

Note: it thus seems that the basis of the principle set by the judgement of 27 Feb. 1951 has not been called into question by the case law of the Court of Cassation, nor has the broadening of the scope of the wrong to encompass professional customs (the publication, with full knowledge of the facts, of incorrect information on the work of an architect is tantamount to a wrong, in the meaning of art. 1382 of the Civil Code: Civ.2, 13 May 1998, Bull. 11, no. 151). However, this wrongful abstention in professional matters should be judged according to the circumstances (nature of the omission, of the profession…), as is shown by the judgement of 17 Jul. 1953.

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