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D. 1982, 25 Mandin v. Foubert Subsequent developments
19 June 1981
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Professor B. S. Markesinis

Cour de cassation

The Court:

In view of article 1382 Code civil;

Given that a person whose fault, even if criminal, has caused damage is partially relieved of liability if he proves that fault on the part of the victim contributed to the harm, that this is so not only when it is the victim himself who is claiming damages but also when they are claimed by a third party who, suing on his own behalf, seeks reparation for the harm he has personally suffered as a result of the death or personal injuries of the victim, and that, although the third party's claim is distinguishable as regards its object from that of the primary victim, even if the third party is the victim’s heir, it nevertheless originates in the same set of facts;

Given that Maurice Foubert died as a result of a collision between the vehicle he was driving with his wife and daughter, Florence, as passengers, and a truck belonging to the Société des transports Rochais-Bonnet and driven by Luc Mandin, and that suit was brought by Mme Foubert, the widow, as partie civile, acting in her own name and also in the name of her minor daughter Florence, seeking damages for the harm resulting both from the injuries sustained by them in the accident and from the death of the husband and father, and also by Didier Foubert, the adult son of the victim, seeking damages for the moral harm he suffered owing to his father’s death: Given that the judgment under attack (Orleans, 12 May 1978) decided that in the absence of any fault on the part of the claimants themselves their claim could not be reduced by reason of any fault committed by Maurice Foubert;

Given that, while the judgment is correct with regard to the personal injuries suffered by Mme Foubert and Florence Foubert, that being harm for which they could claim a complete indemnity from anyone liable, this is not true of the damage flowing from the death of Maurice Foubert, whether to them or to Didier Foubert, and that in ignoring any fault committed by the decedent when compensation was sought for the harm resulting from his death the Court of Appeal violated the text cited above; For these reasons, but only in so far as it held that fault on the part of Maurice Foubert could not be opposed to the claimants seeking damages for the harm suffered by them owing to his death,

QUASHES the decision of the Court of Appeal of Orleans.

Subsequent Developments

Doctrine upheld: See Jurisclasseur “Civil Liability and Insurance” Fasc. 162 and 123: If a person suffers indirect harm originating in the harm directly suffered by the principal injured party, the question arises whether a fault of the latter which contributed to the accident will provoke a reduction of the damages due to the secondary injured party. In other words, can the defendant take advantage of the fault of the principal injured party to obtain partial relief by pleading such fault as against parties suffering harm only indirectly? Case law has, on this question, evolved with difficulty. After a long period during which fault by the principal injured party was held not to be capable of being pleaded as against secondary injured parties, the Court of Cassation had decided in favour of such fault being capable of being so pleaded (since Crim, 28 July 1933). It later changed its doctrine to holding the contrary (Crim, 31 March 1960, Civ.2 30 Nov. 1963). The resistance of the lower courts to this doctrine provoked a decision of All the Chambers of the Court of Cassation which, on 25 November 1964, effected a new change of doctrine by allowing the fault of the principle injured party so to be pleaded. In 1978, however, the Second Chamber reacted with hostility against this doctrine, by finding for the entire liability of the defendant, after having held that that the fault of the latter can not be pleaded as against the secondary injured parties (Civ.2, 7 Jan. and 25 Oct. 1978). But several lower courts continued, after these decisions, to limit damages for indirect loss, and followed faithfully the principle that such fault cannot be pleaded. Finally, by two decisions of 19 June 1981, the Full Court of the Court of Cassation confirmed the decision of All the Chambers of 1964, but with different reasoning from that set out later by the Court of Cassation. The principle laid down in 1964 by all the Chambers is therefore maintained: a fault committed by the principle injured party can be pleaded as against the secondary injured parties. But the justification for this principle is no longer the absence of liability of the principle injured party and the lack of a remedy for the defendant. The reason why the fault can be pleaded is no longer to be found in the area of cause and effect, but rather in that of the loss. The doctrine can be explained by the special nature of indirect loss which the Court of Cassation wishes to put on all fours with loss caused directly. The decisions of the Full Court have been later confirmed by different Chambers of the Court of Cassation, including the Second Civil Chamber. Even if the ground covered by this doctrine was for a time limited by the Desmares line of cases, which refused any sharing of liability with the principal injured party if the defendant was held liable pursuant to art. 1384, para. 1, and 1385 of the Civil Code, there is no limitation today, since this line of cases was abandoned in 1987. Any fault by the principal injured party impinges upon the right to damages of those claiming under him.