Action in tort due to breach of contract: clarification of the nature of the harm that a third party to the contract can claim

In its " Boot'Shop " judgment of the plenary assembly of October 6, 2006 (no. 05-13.255) , the Court of Cassation established the principle that a third party to a contract can claim compensation for the harm suffered as a result of the fault committed by one of the contracting parties, without it being required to demonstrate the existence of a separate extra-contractual fault.

Legal scholars have analyzed this decision as an assimilation of contractual breach and tortious fault, emphasizing that such a solution would allow third parties to obtain, through damages, the equivalent performance of contracts to which they are completely unrelated, in total contravention of the principle of privity of contract provided for in Article 1199 of the Civil Code , according to which

third parties cannot demand the performance of the contract

A certain resistance appears to have subsequently emerged within the Court of Cassation itself, through decisions requiring proof of a tortious act ( 3rd ^Civil Chamber, October 22, 2008, No. 07-15.692 ) or simply refusing to classify a breach of a contractual obligation (for example, the obligation to deliver a conforming and defect-free product: 3rd Civil Chamber, May 18, 2017, No. 16-11.203 ^as . These rulings have thus been interpreted as blocking the "Boot'Shop case law."

In a plenary session ruling of January 13, 2020 , the Court of Cassation firmly reiterated the principle that a third party to a contract may claim compensation for damages caused by a contractual fault, without any condition other than demonstrating a causal link between this fault and this damage:

A breach by a contracting party of a contractual obligation may constitute an unlawful act with respect to a third party to the contract when it causes them harm.

It is important not to hinder compensation for this damage.

Therefore, a third party to the contract who establishes a causal link between a contractual breach and the damage he suffers is not required to demonstrate a tortious or quasi-tortious fault distinct from that breach.

In a context which seems to be that of a return to the "Boot'Shop" solution, the judgment of the Commercial Chamber of June 15, 2022, commented on here, provides an interesting perspective on the nature of the damage that may be compensated.

In the case before the Court of Cassation, heirs brought a tort claim against a bank and an insurer, alleging that their negligence during the redemption of a life insurance policy had forced their deceased client to borrow money to repay a bullet . As a consequence of this negligence, the heirs sought damages equal to the outstanding balance of the bullet not covered by the disputed redemption, plus interest accrued on both the bullet loan and any other loans taken out by the deceased to meet their repayment obligations.

Unsurprisingly, the appeal decision that dismissed the heirs' claim was upheld by the Commercial Chamber, which noted that by claiming sums owed by the borrower himself, it was not a question of personal injury.

The case might have taken a different turn if the plaintiffs had argued that by taking on debt to repay the loan , the deceased had ultimately diminished the estate's assets, thus causing them a kind of lost income. The question of the personal nature of their loss would then likely have been avoided. However, the issue of the direct causal link between this loss and the fault committed by the bank and the insurer would have arisen, since the two were in fact linked by something entirely external to both parties: the death of the deceased . Indeed, without the death of their relative, the lost income resulting from the depreciation of the estate's assets would probably not have constituted compensable damages. Therefore, one might wonder whether, for the heirs, a tort claim is only possible in the context of an original breach of contract.