A neighbor floods your apartment through negligence. A cyclist knocks down a pedestrian distracted by their phone. In these situations, a simple legal rule comes into play: the one who causes damage must repair it. This principle is summarized in a sentence in the Civil Code, but its implications affect the daily life of every litigant.
Article 1382, now Article 1240 after the reform of the law of obligations that came into effect on October 1, 2016, remains the foundation of tort liability in French law.
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Principle of non-cumul: the boundary between tort and contractual liability
Before detailing how Article 1240 works, it is essential to understand a limit that case law firmly establishes. Tort liability cannot be invoked to bypass a contract. This principle has a name: the non-cumul of contractual and tort liability.
In practical terms, if you have signed a contract with a service provider and they perform it poorly, your recourse is through the rules of the contract, not through Article 1240. You cannot choose the tort route simply because it seems more advantageous.
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Why does this rule matter so much? Because a contract often includes clauses that limit liability, specific prescription periods, or compensation caps. Allowing one party to shift to tort liability would empty these clauses of their substance. Recent doctrine and case law increasingly emphasize this boundary, as shown in any explanation of Article 1382 of the Civil Code that addresses its practical limits.
On the other hand, a third party to the contract (someone who has not signed anything) can act based on Article 1240 if they suffer damage related to another’s contractual non-performance. The distinction thus rests on the quality of the person acting, not on the nature of the damage.
Fault, damage, and causal link: the three conditions of Article 1240
Article 1240 of the Civil Code states a mechanism that appears clear: “Any act of man that causes damage to another obliges the one at fault to repair it.” Three elements must be simultaneously present for liability to be engaged.
Fault: no need for intent to harm
Fault can be intentional (an assault) or simply result from negligence or recklessness. A driver who runs a red light commits a fault, even if they had no intention of harming anyone. Any fault, even slight, is sufficient to engage the liability of its author.
An often-overlooked aspect in common guides concerns intentional fault. It does not change the substantive condition (it is still necessary to prove fault, damage, and causal link), but it has practical consequences for insurance. Most liability insurance contracts exclude coverage for damages caused intentionally.
The damage suffered by the victim
The harm must be real, direct, and personal. It can take three forms:
- Material damage: destruction of property, financial loss, expenses incurred to repair a damaged item.
- Bodily harm: physical injuries, temporary or permanent incapacity, suffering endured.
- Moral damage: harm to reputation, pain related to the loss of a loved one, disruption in living conditions.
A hypothetical or future damage is not sufficient to support an action. The victim must demonstrate that they have suffered a certain harm at the time they take legal action.
The causal link
This is often the most delicate point to establish before the judge. The victim must prove that it is indeed the fault of the author that caused their damage. If another event (a force majeure, the act of a third party, or the victim’s own fault) has broken this causal chain, the author’s liability may be reduced or excluded.
Exemption causes: when the author of the damage escapes compensation
The law does not automatically condemn the one being accused. Several mechanisms allow for total or partial exemption.
Force majeure remains the classic case. An unpredictable, irresistible, and external event (such as a natural disaster) can break the causal link. The act of a third party works similarly: if the damage results from the action of another person, the initial author may see their liability diminished.
The victim’s fault is the most frequently invoked means of exemption. A pedestrian who crosses outside the crosswalk and gets hit will see their compensation reduced in proportion to their own recklessness. The judge then proceeds to a sharing of responsibility.
Tort liability and modern risk socialization mechanisms
Article 1240 is based on an individual logic: one person commits a fault, another suffers damage, the first compensates the second. This scheme has gradually been framed by collective mechanisms that limit its practical scope.
Special compensation regimes illustrate this movement. For traffic accidents, medical accidents, or natural disasters, guarantee funds or specific procedures take over. The victim no longer needs to prove individual fault to be compensated.
- Liability insurance transfers the financial burden of repair to an insurer, mutualizing the risk among all insured parties.
- Compensation funds (like ONIAM for medical accidents) allow for compensation even in the absence of identifiable fault.
- No-fault liability regimes, based on other articles of the Civil Code, relieve the victim of the burden of proving wrongful behavior.
These mechanisms have not replaced Article 1240. They coexist with it. The common law of liability for fault remains the default recourse when no special regime applies. A neighbor who damages your fence, a tradesperson who breaks your furniture during work: these situations still fall under the triptych of fault, damage, causal link.
The text of the former Article 1382 has not changed a word in becoming Article 1240. Its wording, drafted in 1804, continues to structure how the judge assesses civil liability. What has evolved is the legal environment around it: more special regimes, an increasing socialization of risk, and a better-guarded boundary with the contractual domain.