Cour de cassation

The Court:

In view of articles 1386 and 1384(1) Code civil;

Given that the first of these texts does not prevent the application of the second against a non-owner who is in control of the thing;

Given that, according to the decision under attack, the roof of a barn which Auzelle. was entitled to use collapsed and damaged the neighbouring house of Mme Pierrefitte, who sued him for damages;

Given that the judgment dismissed the claim founded on article 1384(1) Code civil on the basis that the rules of article 1386 Code civil were specific and thus excluded the possibility that Mme Pierrefitte could base a subsidiary claim on the general provision of article 1384(1) as regards liability for the act of the immoveable property which Auzelle. had under his control (garde);

Given that in so holding when Auzelle was not the owner of the building, the Court of Appeal violated the text first cited by applying it erroneously;

For these reasons QUASHES the decision handed down on 4 September 1997 by the Court of Appeal at Limoges and remits the matter to the Court of Appeal at Poitiers for proper resolution.

Doctrine confirmed. See Jurisclasseur “civil”: Article 1386 designates formally the person liable; but the victim must prove lack of repair or the existence of a defect in the structure. The difficulty flowing from this for the victim is considerable, since it falls to him to show that that is in fact the cause of the ruin; he has the benefit of no presumption. This situation seems all the more stringent since the Court of Cassation will not allow the victim to rely on the provisions of Article 1384, para.1, once the event causing loss falls into the scope of Article 1386. The position used to be even worse, since its case law also rejected an action brought against the person apparently in full possession (“gardien éventuel”) of the building (other than the owner), at least when it was shown that the collapse was due to a defect in the construction of the building (Civ.2, 30 November 1988, Bull.no 239). This reasoning has been overtaken by a decision of the Second Civil Chamber of the Court of Cassation dated 23 March 2000, which holds that Article 1386 of the Civil Code does not prevent recourse to the provisions of Article 1384, para. 1, of that Code as against a person in full possession (“gardien”), not being the owner. In that case, a Court of Appeal is sanctioned for having refused a claim for reparation based on Article 1384, para.1, brought against the holder of a right of use over a barn by the owner of a building damaged by the collapse of the roof of the barn (Civ.2, 23 March 2000; Bull. no 293).

Note: No later decision of the Court of Cassation has confirmed or contradicted this change. Nevertheless, mention should be made of a decision – not published – (Civ.2, 1 March 2001, Application for Review no. 9917869). In that case, the Applicant for Review (the occupant of the building) criticised the judgement under attack for breach of Articles 1386, and, by misapplication, 1384, para. 1, the Court of Appeal having refused to find that liability fell on the owner, the only liability which could apply to this case, according to her. The Court (of Cassation) replies that “ having held that Mme. H….. occupied the building of which M. D…. was the owner, and that she alone had full possession (“garde”) of the building, the Court of Appeal was right to hold her liable for damage arising from the accident, on the basis of Article 1384, para.1, of the Civil Code”.

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