Case:
D. 1982, 449 JCP 1982 II 19861 Case Desmares v. Charles Subsequent developments
Date:
21 July 1982
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 only an event which constitutes force majeure can exonerate the gardien of a thing which causes damage from the liability imposed on him by article 1384 (1) Code civil, and that the conduct of the victim cannot exonerate the gardien, even in part, unless such conduct was unforeseeable and irresistible by him; given that the court below found that the accident took place during the rush hour on or near a pedestrian crossing on a four-lane highway, two lanes in each direction, illuminated by public lighting which was working properly; seeing that Desmares’s vehicle was in the left-hand lane and struck Mr. and Mrs. Charles who were crossing the street from his right to his left, that it follows that if the victims were at fault at all, their conduct was not an event such that Desmares could neither foresee nor avoid it, so that the Court of Appeal was not bound to enquire into the matter with a view to the partial exoneration of the gardien, and has given good legal reasons for its decision,

For these reasons DISMISSES the application for review.

Civ.2, 21 July 1982 (known as the “Desmares case”)

Doctrine abandoned. See Jurisclasseur “Responsabilité Civile” (Fasc. 101, Gilles Endréo, Eric Maillaud, 1993): “By this decision the Court of Cassation effected a spectacular change by refusing to allow the person in full possession of an inanimate thing, liable on the basis of Article 1384, para. 1, partially to escape liability by proving a fault by the victim. The Desmares case was violently criticised as and was resisted by many lower courts. This criticism and the calls for legislative reform by academic writers were listened to in part. The Law of 5 July 1985 on traffic accidents has certainly brought some answers to one of the most urgent problems. It will be noted, moreover, that the legislator has intervened in an area in which the Desmares case was the least questionable, because of the existence of compulsory insurance. This is no doubt why the Court of Cassation felt obliged to bring an end to the inconsistencies of the Desmares case outside this area where the persons liable are not always insured. Strict liability shared with no-one else seemed intolerable in such a case and writers did not fail to point out that the all-or-nothing system of Desmares produced the unjust and shocking consequence that a person found liable who had committed a fault was treated better than one found liable who had committed none. In these circumstances, considering that the call for reform represented by the Desmares case had produced its effects, the Second Civil Chamber proceeded to a change of doctrine by returning to the principle under which “the person in full possession (“gardien”) of a thing which is the instrument of damage is partially relieved of liability if he proves that the fault of the victim contributed to the damage” (Civ.2, 6 April 1987). Again, see Jurisclasseur “Responsabilité Civile et Assurances” (Fasc. 450-3, Paulette Veaux-Fournerie and Daliel Veaux, 1994): “Since the abandonment of the Desmares doctrine, the fault of the victim has returned to the place it held traditionally in the law of liability for things: it is treated like force majeure and, if it is unforeseeable and irresistible, brings about relief for the person in full possession (“gardien”). If not, it reduces the damages due to the victim”. Messrs. Roland, Starck and Boyer (op. cit., no. 1156 et seq.) analyse the abandonment of this doctrine in a similar way. For them, “the Desmares doctrine, handed down in relation to a traffic accident, and later extended to the person in full possession (“gardien”) of any thing whatsoever, is abandoned 5 years later by the Second Civil Chamber in four decisions of 6 April 1987. For the authors, this “spectacular change” means that, henceforth, “fault by the victim always brings about the sharing of liability, it being of little importance whether the plaintiff’s suit is based on Article 1382 or 1384 of the Civil Code” (outside the case of personal injury in traffic accidents). For M. Jourdain and Mme. Viney (op. cit., no.428), henceforth, “the Desmares case is a parenthesis in the evolution of our law of civil liability.”

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