Case:
Bull n° 14 Case X. v. Parisot Subsequent Developments
Date:
20 January 2000
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Cour de cassation

The Court:

Given that according to the judgment under attack (Besançon, 11 February 1998) three minor children, Ludovic and Hervé Y. and Emmanuelle. Z., set fire to a farm building belonging to the Parisots, and that the Parisots, along with their insurer, UAP, which was partially subrogated to their rights, claimed damages as compensation for their harm from Mme X., mother of Ludovic and Hervé Y, and Mme Z, the mother of Emmanuelle Z., as well as the insurer of them both, Azur assurances;

Given that the defendants criticize the judgment below (1) for granting the claim whereas, according to them, the father and mother who are exercising control (garde) of a minor child living with them are jointly liable under article 1384 (4) and (7) for the damage done by him only if they cannot prove that they could not have prevented the act which gave rise to the liability, and so they should be relieved of liability if, having entrusted the care of the child to a third party, they no longer had the direct and actual control of the child at the time of the damage; and (2) for holding Mme X., separated from Y., and Mme Z. liable for the act of their minor children and holding, in violation of article 1384 (4) and (7) Code civil, that the fact that the children were far away from the home of their parents Y. or Z. did not terminate the cohabitation of the children with their parents, whereas it emerged from its own findings that at the moment the damage took place the parents had transferred control of their children to a third party;

But given that the cohabitation envisaged by article 1384 (4) Code civil refers to the normal residence of the child in the home of its parents or one of them;

And given that the divorced parents of Ludovic and Hervé Y.… had joint parental authority over them, that it was at the request of their father in the exercise of his rights of contact and lodging that at the time of the events they were staying for ten days with their paternal grandmother, Mme Andrée. Y, who was also looking after Emmanuelle Z;

That in view of these findings and conclusions, the Court of Appeal was perfectly entitled to find that the cohabitation of the children with their mothers was not ended by their staying elsewhere for a few days nor by the distance between the home of Mme Andrée Y. and those of Mme X. and Mme Z.;

For these reasons DISMISSES the application for review.

Civ. 2, 20 January, 2000, Bull. no. 14: “Cohabitation of an infant with his father and mother pursuant to Article 1384, para. 4 of the Civil Code results from the child’s residing habitually in the home of the parents or of one of them” and Civ. 2, 09.03.2000, Bull. no. 44: “There is a breach of Article 1384, paras. 4 and 7 if a Court of Appeal holds that, their son having been left with a child-care centre with medical facilities at the time of an accident, the parents could not prevent the acts which caused loss, since only proof of a case of force majeure or a fault by the victim could relive the father and mother of their strict liability arising out of damage caused by their infant child living with them, and the fact that they had temporarily left the child with that centre did not cause the cessation of the cohabitation of the child with his parents”.

Doctrine maintained: see in particular Civ. 2, 29 March 2001, Bull. no. 69: “Only force majeure or the fault of the victim can relieve a father and mother of strict liability arising from damage caused by their infant child who lives with them. The presence of a student in a school, even if he is a boarder, does not end the cohabitation of the child with his parents”. It should, however, be noted that the position is slightly different if the infant has been placed by a children’s court in a centre responsible for organising his life (Civ.2, 6 June 2002, three decisions published: “Pursuant to Article 1384, para.1 of the Civil Code, an association, ordered by the decision of a children’s court to organise and control the life-style of an infant on a permanent basis, remains strictly liable for damage caused by that infant, even if he lives with his parents, if no judicial decision has suspended or interrupted this mission to educate”).

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