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Chambre mixte, 22nd April 2005, pourvoi no 02-18.326 (fault and clause restricting liability) and no 03-14.112
22 April 2005
Note and subsequent developments by Fr¿¿d¿¿ric Goldberg (translation by Raymond Youngs)
Translated by:
Tony Weir
Professor B.S. Markesinis

While Decree no. 99-269 of 6 April 1999  permits the carrier of packages by road to limit his liability unless he is guilty of serious fault, the mere fact that the carrier cannot give reasons for the delay in delivery does not amount to such serious fault.

Given that on Friday 22 May 1999  the KA firm entrusted Chronopost with a package containing its tender for a position offered by the city of Calais, for which tenders had to be received by 5.30 p.m. on Monday 25 May 1999, that the package was not delivered until 26 May and  that when the consignor sued Chronopost for damages,  the defendant invoked the limitation of liability clause contained in contracts of the type in question (messageries);

In view of article 1150 Code civil, article 8 para. II of the Law no. 82-1153 of 30 December 1982 and articles 1, 22-2 and 22-3 of the Decree no. 99-269 of 6 April 1999, applicable in the case;

Given that in holding Chronopost liable in the sum of FF 100,000 despite the limit of liability applicable to contracts for the carriage of packages by road, the court below stated that the four days delay, which Chronopost itself described as “an exceptional mistake” and for which it offered no explanation, constituted negligence of an extremely serious nature and therefore gross negligence which showed that the carrier in control of the affair was incapable of carrying out the task it had contracted to perform;

Given that in so deciding, when the mere fact that the carrier cannot elucidate the cause of the delay in delivery does not constitute a serious fault such as alone can displace the limitation of liability contained in the terms of contracts of this type, the court below violated the texts mentioned above;

Subsequent Developments

This note on subsequent developments reflects the legal situation as of August 2007.

The judgments of the Chambre mixte of the 22nd April 2005 initiate a movement towards elucidation of the cases where clauses restricting reparation can be annulled.

When a clause which restricts reparation is provided for in a contract of the transportation type, established by decree, the clause is effective against the sender, except when he brings proof of a serious fault attributable to the carrier (cf. Ch com, 9/07/2002). The judgment of the Chambre mixte of the 22nd April 2005 (no 02-18.326) then defines what is to be understood by ¿¿¿serious fault¿¿¿. It ¿¿¿could not result from the mere breach of a contractual obligation, even if it was an essential one¿¿¿. This strand of case law has been taken up by the commercial chamber in its judgments of the 21st February (Ch com 21/02/2006, no 04-20.139): ¿¿¿only a serious fault constituted by negligence of extreme gravity, bordering on dol, and indicating the debtor was incapable of carrying out the obligation to fulfil his contractual commission, can displace the limitation of indemnification¿¿¿. The subjective idea of the Cour de cassation in defining the concept of serious fault is equally confirmed by the judgment of the 13th June 2006 of the commercial chamber (no 05-12.619) which takes the same ground as the Chambre mixte of the 22nd April 2005.

When the clause does not originate from a contract type, the concept of serious fault is set aside. It is necessary to have recourse to the concept of cause. In its judgment of the 30th May 2006, the commercial chamber confirms the starting point given by the judgment of the Chambre mixte no 4 (pourvoi no 03-14.112): a contentious clause of this kind, which would jeopardise the internal coherence of the contract, can be deemed not to have been included in the case of breach of an essential obligation. The original draft of the reform of the law of obligations and the law of prescription, in its article 1125, para 2, seems moreover to endorse the doctrine of the Cour de cassation.