QUESTIONS

TRACING THE BORDERLINES

A. DISTINCTION BETWEEN TORT AND CONTRACT

Contract (contrat) and tort (responsabilité délictuelle) are primarily regarded as two different sources of obligations, following the traditional presentation of the jus commune, which was carried over into the Civil Code. Within the third book of the original Code, which was actually somewhat of a melting pot, the third part dealt with ‘contracts and contractual obligations in general’ (‘Des contrats et des obligations conventionnelles en général’), whereas the fourth one dealt with ‘undertakings formed without a convention’ (‘Des engagements qui se forment sans convention’). Tort belonged to the latter, along with ‘quasi contracts’ (‘quasi-contrats’), which are basically unjust enrichment and negotiorum gestio .

The recent reform of the French law of obligations, which, however, does not cover civil liability, has clarified the presentation of the various sources of obligations, without putting into question the distinction between tort and contract. The first part of the third book of the Civil Code is now explicitly devoted to the ‘sources of obligations’ and deals successively with contract, with ‘extra-contractual liability’, ie liability in tort, and with ‘other sources of obligations’ (unjust enrichment, ‘payment not owed’, and negotiorum gestio).

The French Government is now preparing the reform of civil liability law. A consultation was organised in 2016 on the basis of draft project published in April 2016, and a revised draft reform bill on civil liability, le projet réforme du droit de la responsabilité civile (Projet), was published in March 2017. Since then, nothing much has happened, but there is still hope that Parliament will discuss this project at the end of 2019 or at the beginning of 2020. The draft published in 2017 nevertheless deserves to be mentioned, because it runs counter to traditional solutions of French liability law on a few points. One of them is that the draft deals with liability in tort (responsabilité délictuelle ou extracontractuelle) and liability in contract (responsabilité contractuelle) as a whole.