Cour de cassation:

Given that according to the findings below Mme Petitdidier had to abandon the cure at Barbotan-les-Thermes the day after she had embarked on it when a fire broke out in which the baths were destroyed and several persons taking the cure died; that Mme Petitdidier and her husband sued the Chaîne thermal du soleil which operated the spa for their moving costs and lodging expenses; and that the judgment under attack (tribunal d’instance Condom, 24 November 1992) dismissed the claim of her husband and awarded Mme Petitdidier damages of 2,165 francs;

Given that the Chaîne thermale du soleil criticises the judgment for refusing to stay the action until the criminal prosecution had taken place whereas, according to the application, whenever the disposition of the criminal case could affect the outcome of the civil suit, the latter must be stayed until final judgment in the former, and here, since the prosecution was apt to discover the causes of the fire and who was responsible for it, it could have an effect on the possible defence of force majeure which the Chaîne thermale du soleil could raise, so that the tribunal’s refusal to stay the lawsuit was in violation of article 1148 Code civil and article 4(2) of the Code of Criminal Procedure, and furthermore, in simply stating that the harm suffered by Mme Petitdidier amounted to 2,165 francs without replying to the contention of the defendant that it was of their own volition that the Petitdidiers remained in the area and without examining the inclusion in the Petitdidiers’ claim of the husband’s lodging expenses which they said were not compensable, the tribunal violated article 455 of the New Code of Civil Procedure;

But given, first, that the tribunal was right to hold that since the company running the spa was under a strict obligation as regards the premises, apparatus and personnel it put at the disposal of its clients it could escape liability to Mme Petitdider only by proving its allegation that, so far as it was concerned, the fire was an instance of force majeure, and given that any findings the criminal court might make about force majeure did not bind the civil courts, the tribunal was legally justified in refusing to stay the claim;

And given, furthermore, that the tribunal was not bound to reply to mere arguments and was simply using its sovereign power in evaluating the harm suffered by Mme Didier as a result of the breach of contract;

From which it follows that neither branch of the application for review can be accepted;

For these reasons;

DISMISSES the application.

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

Civ 1, 28 February 1995 : Where clinics are involved, the obligation to have staff available who are qualified and sufficient in numbers is, according to Sylvie Welsch ("Responsibilite du medecin" (Liability of the Doctor), Litec, 2003, no 329) a strict duty (obligation de resultat) (cf Civ 1, 15 December 1999 and CA Amiens, 15 October 2002, quoted in the note under Civ 1, 14 October 1997). As far as the contract of hospitality and accommodation is concerned, it is on the other hand (op cit no 326) "the rules of the droit commun for contracts of hospitality which will apply, everything concerning the safety of patients being included in this" (cf CA Paris, 5 March 1999), while so far as the contract of care is concerned "the case law has imposed on the clinic an obligation determined by result to provide, for carrying out the care, equipment in good condition and products without defects" (op cit no 328 - cf Civ 1, 7 November 2000, which talks about the strict duty of safety (obligation de securite de resultat) concerning products supplied, such as medicines). On any hypothesis, whether the duty is one of care (obligation de moyens) or a strict duty - the distinction being sometimes a tenuous one - the person owing the contractual obligation is freed from it if he brings proof that the non-performance of the contract is not attributable to him, but that it is due to a case of force majeure (an event which is irresistible, unforeseeable and external to the person owing the obligation). However, if he is bound by a strict duty, by definition, he will have to bear the burden of proof, and prove force majeure (cf Civ 1, 3 July 2002, Bull no 183: "The carrier of passengers by rail, bound by a strict duty of safety in their favour, can only release himself from his liability by proving an event which amounts to force majeure"). As to the assertion that the civil judge is not bound by the findings of the criminal judge as regards force majeure, no decision has been made since by the Cour de cassation to confirm or contradict this solution which has often been criticised by legal writers, on account in particular of its generality.

Translation by Raymond Youngs

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