Preface
Contents
List of Contributors
List of Abbreviations
1. Introduction
I. The Existing Pattern of French Civil Liability Law
II. The Reform of French Civil Law
III. The Main Features of the Projet de Réforme
PART I: ‘CIVIL LIABILITY’, CONTRACTUAL AND EXTRA-CONTRACTUAL
2. A Common Framework for Civil Liability?
I. Duality, Unity and Compromise in the Framing of French Civil Liability
II. The Distinction between Contract and Tort in English Law
III. Conclusion
3. The Relationship between Contractual and Extra-Contractual
Liability as between Parties to a Contract
I. The Duality of the Two Categories of Civil Liability: A Recurring Controversy
II. The Primacy of Contractual Rules
4. Liability of Contracting Parties Towards Third Parties
I. The Conditions of Admissibility of an Action by Third Parties
II. The Substantive Requirements for an Action by a Third Party
PART II: ‘FAULT’
5. The Definition of Civil Fault
I. Does the Text of the Draft Provision Already Say Too Much?
II. Should the Legislative Definition have Said More?
6. Crime, Breach of Legislative Duties and Fault
I. Introduction
II. Interfaces Between Tort and Crime
III. The Work that Legislative Duty and Fault Do Within the Legal System
IV. The Unity of Fault
V. Integrating Duties Across Tort and Crime
VI. How Unity and Disunity Develop
VII. Distinctive Characteristics of French Tort Law and What we Learn from them
PART III: LIABILITY WITHOUT FAULT
7. The Role of Liability without Fault
I. Mechanisation and Liability without Fault: The Deconstruction of a Myth
II. The Degree of Integration of Liabilities without Fault Within the System of Liability
8. Fait d’autrui in Comparative Perspective
I. Introduction
II. Setting the Scene
III. The French Regime
IV. The English Regime
V. The German Regime
VI. The Insurance Environment
PART IV: ‘HARM’
9. Loss and its Compensation in the Proposed New French Regime of Extra-contractual Liability
I. The Distinction between Dommage and Préjudice
II. The Necessary Characteristics of a Recoverable Préjudice
III. Préjudices Patrimoniaux and Préjudices Extrapatrimoniaux
IV. The Principle of Réparation Intégrale and the Calculation of Damages
V. Conclusion
10. The Concepts of ‘Harm’ in the French and Italian Laws
of Civil Liability
I. The French Distinction between Dommage and Préjudice
II. The Italian Distinction between Danno-evento and Danno-conseguenza
III. The Italian Doctrines of Danno Biologico and of Danno Esistenziale
IV. The Concept of 'Harm' in the French and Italian Laws of Civil Liability
V. The Doubtful Compensation of 'Pure Economic Losses' and of 'Pure Non-economic Losses'
VI. The Compensation of 'Harms' in the Absence of Consequential 'Loss'
VII. Conclusion
11. Nuisance and Coming to the Nuisance: The Porous Boundary
between Torts and Servitudes in England and France
I. The Tort of Nuisance and Troubles de Voisinage: Similarities and Differences
II. Coming to the Nuisance: The Significanceof the Defendant’s Prior Use of Land
III. Coming to the Nuisance as a Servitude
IV. Conclusions
PART V: CAUSATION
12. Liability for Alternative Causation and for the Loss
of a Chance
I. Introduction: Liability for Uncertain, (Merely) Partial Causation under French, Austrian and German Law
II. Concurrence between Two Events which would Trigger Liability
III. Comparative Remarks on Article 1240 of the Projet de réforme
IV. Concurrence between an Event which would Trigger Liability and an Event which would not
V. Comparative Remarks on Article 1238 of the Projet de réforme
VI. Conclusion - An Interaction of Common Factors?
13. ‘Solidary’ Liability and the Channelling of Liability
I. From Obligatio in Solidum to Joint and Several Liability
II. A Common Trend in Comparative Civil Law
III. Conditions and Effects of the Proposed Solidarity Rule
IV. The Questionable Distinction between the Harm Caused by an Undetermined Member of a Group, and the Joint and Several Liability Case
V. The Drawbacks of a General Solidarity Rule in the Law of Torts
PART VI: DEFENCES
14. Defences to Tortious and Contractual Liability in French Law
I. General Issues Surrounding Defences
II. Specific Defences
III. Conclusion
15. Contracts Concerning Civil Liability
I. Introduction
II. The Lawfulness of Contracts Concerning Liability
III. The Rules on Contracts Modifying Civil Liability
PART VII: LIABILITY BEYOND DAMAGES
16. Comparative Reflections on Punishment in Tort Law
I. Introduction
II. Punitive Damages in the United States: Instrumentalism and Interpersonal Justice as Conflicting Approaches to Punishment and Tort Law
III. Exemplary Damages in English Tort Law … Or when Instrumentalism Clashes with Interpersonal Justice
IV. Punishment in French Tort Law: Is Instrumentalism the Whole Story?
V. Conclusions
17. Unjustified Enrichment and Civil Liability
I. The Main Characteristics of Unjustified Enrichment in French Law
II. The Distinction between Civil Liability and Unjustified Enrichment: Is Unjustified Enrichment an Independent Category?
III. The Boundaries between Civil Liability and Unjustified Enrichment: Which Should be the Basis of Recovery of Unlawful Benefits?
IV. Conclusion
18. Injunctions Requiring the Cessation of Unlawful Action
I. Introduction
II. Background
III. Injunctive Relief against Troubles Illicites in the Projet de Réforme
IV. Injunctive Relief in the English Law of Torts
V. Comparing English Law and Article 1266 of the Projet de Réforme
VI. Conclusion
PART VIII: BROAD THEMES
19. The Projet de Réforme du Code Civil Belge and the Reform
of the French Civil Code: A Comparison of Selected Topics
I. Introduction
II. The Structure of the Avant-projet de Réforme
III. The Relationship between Contractual and Extra-contractual Liability
IV. Extra-contractual Fault
V. Harm
VI. Reparation of Harm
20. The Reform of Delict in the Civil Code and Liability
in Administrative Law
I. Foundations
II. Fault Liability
III. Liability for Others
IV. No-Fault Liability
V. Conclusion
21. The Importance of Terminology in the Law of Civil Liability
I. The Importance of Terminology in the Law
II. The Importance of Terminology in the Law of Civil Liability
III. The Importance of Terminology in the French Law of Civil Liability
IV. Conclusion
22. Principles of Liability or a Law of Torts?
I. A Taste for General Rules
II. Diversity Beneath the Generality
III. The Increased Importance of the 'Special Regimes' of Liability and Compensation
IV. Concluding Observations
Appendix
Index