Abstract EN:

The civil liability in tort traditionally requires a generating fact, a loss and a causation link between both. In some cases, called “liability for normal fact” or “causation liability”, the generating fact does not involve, from a technical point of view, any abnormal condition. For instance, the vicarious parental liability for their children’s acts is involved for a non culpable act of the minor. The liability concerning privacy arises from the mere invasion, the liability for nuisance only requires the abnormality of the loss sustained by the victim whereas the generating fact can be normal. However, we show that, from a theoretical point of view, in any hypothesis of liability, the unlawfulness of the damaging situation results from both the cause (the generating fact) and the loss. It is “le délit” ou “le quasi-délit” (approximately translated by tort or unintentional tort), that is to say the fact in a legal sense that causes liability. It results from a judge ruling showing a preference for the victim, following a confrontation of two opposite interests. The licit interest, assimilated to civil liberty, represents a subjective right in the broad sense of the term. Conversely, subjective right in the strict sense of the term represents possession, that is to say a legal object legally linked to the person by a kind of ownership. The liability cannot then be derived from neither an infringement to a subjective right, in both senses of the term, nor from the causation of a loss. For the defendant, “le délit” ou “le quasi-délit” reveals the transgression of civility norm, assessed a posteriori by the ruling.