Changing Tides: the Introduction of Punitive Damages Into the French Legal System

• Citation: Vol. 41 No. 2
• Publication year: 2013
• topic: Civil Procedure

CHANGING TIDES: THE INTRODUCTION OF PUNITIVE DAMAGES INTO THE FRENCH LEGAL SYSTEM

Matthew Parker^*

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TABLE OF CONTENTS

I. INTRODUCTION: THE CAUTIOUS EMBRACE OF PUNITIVE DAMAGES IN FRENCH TORT LAW?.................................................390

II. FRENCH TORT LAW AND PUNITIVE DAMAGES: AN HISTORICAL AND THEORETICAL OVERVIEW..................................394

III. A COMPARATIVE PERSPECTIVE: THE JUSTIFICATIONS AND CRITIQUES.......................................................................................402

A. Background: Understanding the Rationales for Punitive Damages and Juxtaposing the French and American Experiences..............................................................................402
B. Social Redress: Vindication of Victims' Rights........................405
C. Social Redress: Vindication of Society's Rights.......................411
D. Retribution................................................................................416
E. Deterrence................................................................................418
F. Understanding the Rationales and Moving Forward...............423

IV. UNDERSTANDING ARTICLE 1371: APPLICATION AND REFINEMENT...................................................................................424

A. The Tortfeasor and Fault.........................................................424
B. Damages...................................................................................426
C. Summary of Article 1371 and Suggestions for Improvement.............................................................................430

V. CONCLUSIONS: CAN THE FRENCH LEGAL SYSTEM GET "ON BOARD" WITH PUNITIVE DAMAGES?......................................431

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I. INTRODUCTION: THE CAUTIOUS EMBRACE OF PUNITIVE DAMAGES IN FRENCH TORT LAW?

When Americans Peter Schlenzka and Julie Langhorne purchased a French Fountaine Pajot catamaran in 1999, they probably did not expect that their purchase would lead to a groundbreaking decision from the French Court of Cassation, the highest court in France.¹ At the time of the sale, Schlenzka and Langhorne were unaware that their new family boat had suffered serious structural damage during a storm only a few weeks earlier while still in France. Shortly after delivery, however, they discovered the defect and demanded a refund from the catamaran's French manufacturer. When settlement negotiations broke down, they brought suit against Fountaine Pajot in California. In February 2003, the Superior Court of California ordered Fountaine Pajot pay Schlenzka and Langhorne more than $3 million, including nearly $1.5 million in punitive damages.² After a long battle to try and enforce the judgment in France, the Court of Cassation handed down its final decision in late 2010.³ Although the Court refused to enforce the California court's judgment, the decision was nonetheless remarkable in its recognition of the potential legality of punitive damage awards.⁴ Holding that "an award of punitive damages is not per se contrary to public policy," the Court added that such principle did not apply in the Fountaine Pajot case "when the amount awarded is disproportionate with regard to the damage sustained . . . ."⁵ Though the decision signaled the death knell for Schlenzka and Langhorne's claim, it has since sparked renewed debate about the proper role of punitive damages in the French tort system where courts have consistently held—at least until the Fountaine

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Pajot case—that punitive damage awards were inconsistent with the principles underlying French tort law.⁶

While punitive damages are an integral part of the common law legal systems of countries such as the United States,⁷ most civil law countries such as France usually disapprove of their award.⁸ Understood most generally, punitive damages are damages awarded in excess of the harm the plaintiff suffered in order to punish a tortfeasor and deter him or her and others from pursuing similar conduct.⁹ Guided by the principle of réparation intégrale (full reparation),¹⁰ the Court of Cassation has consistently held that tort victims should be compensated for the harm they suffer, but nothing more.¹¹ Punitive damages have thus largely been absent—at least formally—from French law.

When asked in 2004 whether French law permitted punitive damages, Professor Georges Durry, a prominent French academic gave a simple response: "No, three times, no."¹² The next year, however, Durry was part of

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a team of legal academics and practitioners that authored the Avant-Projet de réforme du droit des obligations et du droit de la prescription (Proposals for Reform of the Law of Obligations and the Law of Prescriptions).¹³ More commonly known as the Avant-Projet Catala (Avant-Projet), the project proposes the most extensive reform of the French Code civil (Civil Code) since it was written in 1804. Notably, the Avant-Projet explicitly recognizes for the first time the award of punitive damages for the commission of certain torts under French law.¹⁴ While many French scholars and politicians have been quick to dismiss the proposal as contrary to existing French law¹⁵ —inapposite with explicit principles of corrective justice and victim reparation that lay at the foundation of French tort law¹⁶ —there has been a lack of critical engagement with the idea of awarding punitive damages in French tort cases. This has caused some to question what led the authors to include the proposal in the Avant-Projet.¹⁷ In comparison with other parts of

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the Avant-Projet, however, the proposal to award punitive damages has received surprisingly limited attention from academics, especially outside France.¹⁸ This Article begins to fill the gap in the existing debate, placing the Avant-Projet and more specifically the practice of awarding punitive damages in their historical and comparative context.

In this Article, I argue that punitive damages are not fundamentally at odds with the principles underlying French tort law and that they may in fact support and further its policies. Punitive damages provide a form of social redress, vindicating victim's rights and publicly affirming society's respect for the existence of these rights and its interest in ensuring its laws are respected.¹⁹ Punitive damages have the potential to restore the moral balance and provide compensation for the victim,²⁰ consistent with French principles of corrective justice and victim reparation.²¹

At the same time, however, punitive damages can also serve retributive and deterrent functions.²² This has led many scholars to sharply criticize their proposed introduction, arguing that these functions threaten to undermine the existing principles of French tort law.²³ Nevertheless, this critique fails to recognize the implicit function retribution and deterrence already play in French tort law, and how a more explicit recognition of this function will strengthen the French tort system and better support its goals of victim reparation and restorative justice.²⁴

Situating my analysis and assessment in a comparative perspective, I begin in Part II of this Article by tracing the history of French tort law and its treatment of punitive damages. In Part III, I contrast the French experience with that of other countries, especially the United States, looking at the rationales underlying punitive damages and their critiques. Drawing on this analysis, in Part IV, I explore the Avant-Projet's current draft proposal and make recommendations for how it can better respond to critics' claims that it fails to reflect the policies guiding French tort law. Against the backdrop of

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French legal history and the comparative experiences of other countries, I ultimately contend that punitive damages have the potential to become a useful tool in French tort law.

II. FRENCH TORT LAW AND PUNITIVE DAMAGES: AN HISTORICAL AND THEORETICAL OVERVIEW

To understand the recent push to reform the French tort system, knowledge of current French tort law and its development is essential. Before the French Revolution in 1789, there was no single, official French legal system.²⁵ Rather, French law was a mixture of Roman law, canon law, and local laws, commonly referred to by legal historians as l'ancien droit (the old law).²⁶ Shortly after coming to power in the aftermath of the French Revolution, Napoleon Bonaparte set out to create a new legal order in France.²⁷ The Civil Code was adopted in 1804, and is still regarded as "the cement of [French] society."²⁸ The cornerstone of the French legal system, the Code incorporates many of the main ideas of the Revolution as well as several aspects of l'ancien droit.²⁹ As a testament to its strength and continuity, the Code has been modified little in the more than two hundred years since its adoption, with most changes coming in the form of additions rather than amendments.³⁰ Tort law provides a striking illustration of this durability, with four of the five articles currently governing torts having been included in the original Code.³¹

The primary reason for such continuity is the simplicity and breadth of tort law under the Code.³² The general nature of the formulas employed in the Code has marked the French legal system and allowed judges to imbue them with meaning.³³ At the most general level, the principle of fault most directly influences the French tort system.³⁴ According to the Code, any person whose faulty conduct causes harm to another person has a duty to repair the damages he or she has caused.³⁵ Guided by the "natural objective"

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of fully compensating victims for the harms they suffer, the French tort system is notable for its broad orientation towards liability.³⁶ This is reflected, for example, in the way courts have increasingly softened the definition of fault over time and introduced presumptions of strict liability in certain cases.³⁷ French courts have thus taken significant...