1. Terminology and concept
Custodian’s liability is a principle that has its origins in French law: responsabilité du fait des choses. It has shaped all jurisdictions influenced by the French Code civil, ie the law of Luxembourg, Belgian, Italian and Portuguese, but also Dutch law. Custodian’s liability means that a person is answerable in damages regardless of fault for loss caused by an object under that person’s control.
2. French law
French-style custodian’s liability is codified in Art 1384(1) Code civil, which provides that ‘on est responsable … du dommage… causé par le fait des choses que l’on a sous sa garde’ (a person is responsible for the damage caused by things in his custody). The drafters of the Code civil intended this phrase not as a separate cause of action but merely as a reference to the following provisions (Arts 1385 and 1386), which hold keepers of animals and owners of buildings liable for damage caused by animals or defective buildings. It was not until some spectacular judgments by the Cour de Cassation that this declaratory statement was incrementally transformed into the legal basis for making custodians liable for damages caused by objects of any kind.
The first step in this direction was the arrêt du remorquer of 1896 (Cour de Cassation, Cass. civ. 16 June 1896, DP 1897 I, 433). The boiler of a towboat had exploded and fatally injured one of the employees working there; however, no fault of the employer could be shown. In order to make the employer liable nonetheless, the Cour de Cassation interpreted Art 1384(1) Code civil as an independent cause of action for liability on the basis of presumed fault. The second step towards objective liability, as currently practised, was taken by the Court in 1930, in the arrêt Jand’heur. The facts of this cased involved a traffic accident in which a pedestrian had been seriously injured in a collision with a truck (Cour de Cassation, Cass. ch. réunies 13 February 1930, D 1930 I, 57). The Court re-interpreted Art 1384(1) Code civil and dispensed with the presumption of fault that was until then rebuttable by the defendant in order to escape liability. Present legal doctrine considers Art 1384(1) Code civil as a cause of action in its own right where the responsibility of the defendant is contingent on the mere possession of the object that caused the loss in question.
Custodian’s liability applies to things of any kind, whether movable or immovable, alive or inanimate. In contrast to strict liability in the technical sense of no-fault liability for sources of abnormal danger, custodian’s liability does not require the object to be dangerous, defective, or otherwise to pose an increased threat of harm. The person liable is the keeper of the object (gardien), ie the person that has ‘usage, direction et contrôle’. Minors and even infants may well qualify as gardiens. The custodian cannot exculpate himself by demonstrating that he complied with the applicable standard of due care. However, force majeure can be invoked as a defence, which requires the harm to have been caused by an external event that was both unforeseeable and unavoidable (une cause étrangère imprévisible et irrésistible). Contributory negligence on the part of the victim (faute de la victime) will generally only lead to a reduction of the claim for damages but not to its complete rejection. Where the loss was also caused by another, this third party is jointly liable towards the victim alongside the gardien de chose. The allocation of the costs of compensation is a matter of equitable adjustment between the two tortfeasors.
The repeated re-interpretation of Art 1384(1) Code civil by the Cour de Cassation dramatically expanded the scope of no-fault liability in French law. However, this did not suffice to prevent the lawmakers from entering the arena. Today, the law of no-fault liability is as fragmented in France as it is in any other European jurisdiction. A range of statutes regulate liability for damage caused by certain categories of ‘things’ (choses) and thus create special cases of custodian’s liability even though the same statutes would be classified under the heading of strict liability for sources of abnormal danger in other legal systems. Among these statutes, the loi Badinter of 1985 is clearly the most important. It introduced a sweepingly general system of liability for traffic accidents that was designed to improve the position of non-motorized victims against keepers of motor cars. This system goes well beyond the victim-friendly jurisprudence developed under Art 1384(1) Code civil. Set against this background, Art 1384(1) Code civil does not really qualify as a general clause of strict liability, even if account is taken of the fact that it does not require that the thing be particularly dangerous. The main point is that the custodian’s liability under the Code only applies in the absence of a special statutory provision. Therefore, Art 1384 (1) Code civil is more of a fall-back provision than a general clause.
Custodian’s liability is one of the topics covered by the current Draft Act on the Reform of the Law of Obligations (Avant-projet de réforme du droit des obligations). The study group that prepared the draft had envisaged abandoning the concept of custodian’s liability in favour of strict liability in the technical sense, ie no-fault liability for abnormally dangerous activities. However, this suggestion, which had been submitted time and again in French legal discourse, was once more rejected. As a result, the draft retains the custodian’s liability and even proposes a more extensive regulation by incorporating some of the case law developed by the Cour de Cassation over the years. Article 1354 Avant-projet provides that ‘On est responsable de plein droit des dommages causés par le fait des choses que l’on a sous sa garde’, followed by a definition of the terms fait de la chose and gardien, and the clarifications that neither the lack of a defect in the thing in question nor a physical handicap on the part of the custodian can be invoked as a defence. Interestingly, the Avant-projet does not confine itself to custodian’s liability in the sense described above, but adds a general clause of strict liability for abnormally dangerous activities (activités abnormalement dangereuses, Art 1362 Avant projet). If this proposal were to become law, French law would operate with both categories, custodian’s liability for things and strict liability for abnormally dangerous activities. This dual approach already reflects the state of the law in Italy and Portugal (see 3. below).
3. Other European legal systems
Custodian’s liability is unknown in German law (where it would be called Sachhalterhaftung—not to be confused with the category of liability which is the subject of § 311(3) Bürgerliches Gesetzbuch (BGB), known as Sachwalterhaftung). The German law of non-contractual liability operates on a two-track system of fault-based liability (Verschuldenshaftung) and strict liability in the technical sense of no-fault responsibility for abnormally dangerous activities (Gefährdungshaftung). The same approach is followed by the English common law as well as the remaining European legal systems outside the gravitational force of the French Code civil.
The French model of custodian’s liability has exercised considerable influence on legal systems that have adopted or integrated the Code Napoléon into their own codifications, eg Luxembourg, Belgium, Italy, Portugal and the Netherlands. Spanish law is the only jurisdiction originally related to the Code Napoléon that has not included the concept of custodian’s liability.
Article 1384(1) Code civil is copied verbatim in the law of Luxembourg and Belgium. Following the French case law (see 2. above), Art 1384 is considered an independent cause of action providing for no-fault liability. While the courts in Luxembourg have very closely followed the French decisions, the Belgian Cour de Cassation has taken an independent path and limited custodian’s liability to cases where the object suffers from a defect. This step moves custodian’s liability closer to strict liability for abnormally dangerous activities.
While in Luxembourg and Belgium the respective Cours de Cassation developed the custodian’s liability, it became the domain of the legislatures in Italy, Portugal and the Netherlands. The Italian Codice civile of 1942 represents the first European codification that established the custodian’s liability as a stand-alone cause of action (Art 2051 Codice civile). The responsibility of the keeper was based on a ‘non-rebuttable presumption of fault’, with the only defence available to the defendant being the proof that the harm was caused by coincidence. Where several tortfeasors are involved, the equitable adjustment between them still follows the fault principle. A further variation was developed in Portuguese law, by its classification of custodian’s liability as responsibility based on a rebuttable presumption of fault (Art 493(1) Código civil). Both in Portuguese and Italian law, the custodian’s liability is supplemented by a general clause of semi-strict liability for abnormally dangerous activities (Art 2050 Codice civile; Art 493 Código civil). This liability is only semi-strict because it rests on a rebuttable presumption of fault: the defendant may exonerate himself by showing that he has observed due care.
Dutch law also embraces the custodian’s liability in Art 6:173(1) Burgerlijk Wetboek (BW). In contrast to its French sister, the Dutch conception is limited in two respects. First, it applies only to movable objects, so that real estate and buildings are excluded. Secondly, it is a requirement that the thing in question represents a source of abnormal danger to its surroundings. The law goes on to define abnormal danger as the lack of safety features that a person is entitled to expect, a definition which corresponds to the standard of Art 6(1) Product Liability Directive (Dir 85/473).
The draft of a reform act of the law of damages in Austria (Entwurf zur Reform des Schadensersatzrechts), published in 2005 and then critically discussed and re-drafted in 2007, does not supply a rule of custodian’s liability. Rather, strict liability is imposed on operators of sources of abnormally high danger. The rationale of this solution is that the mere possession of an object is no reason to abandon fault-based liability, but that the operation of a source of abnormal danger is. Where the danger is not ‘abnormal’, but still above the ordinary level, the operator is subject to liability for presumed fault.
4. Perspectives for harmonization
The two major projects concerned with harmonizing the European law of tort or delict, the Principles of European Tort Law (PETL) and the Draft Common Frame of Reference (DCFR), refrain from incorporating custodian’s liability. Both sets of principles opt instead for a dual system of fault-based liability and strict liability for abnormally dangerous activities. Article 5:101 PETL provides that ‘a person who carries on an abnormally dangerous activity is strictly liable for damage characteristic to the risk presented by the activity and resulting from it’. Even though the term ‘activity’ is not to be reduced to human behaviour, but is meant to include the possession of dangerous objects too, the normative basis of liability remains the creation of an abnormal danger rather than the possession of an object. As a result, Art 5:101 PETL must be classified as a general rule of strict liability in the technical sense and not one of custodian’s liability.
The Draft Common Frame of Reference also does not embrace custodian’s liability. Book VI, Chapter 2 of the DCFR, entitled ‘Accountability without negligence or fault’, subjects a number of activities to strict liability, namely the keeping of animals or defective buildings, the operation of motor vehicles, the keeping of dangerous substances, and the operation of dangerous installations. Among these, there is no case where liability would be based on the mere possession of an object, irrespective of the danger inherent in such an object. All in all, therefore, the concept of custodian’s liability has failed to establish itself at the European level; it will remain an idiosyncrasy of French law.
Louis Josserand, De la responsabilité du fait des choses inanimées (1897); Emile Bonnet, De la responsabilité du fait des choses (théorie générale) (1908); Ulrich M Hübner, Die Haftung des Gardien im französischen Zivilrecht (1972); Bernhard A Koch, Die Sachhaftung (1992); Fabrice Leduc, Jean-Pierre Bourgois and Patrice Jourdain, La responsabilité du fait des choses (1997); Christian von Bar, The Common European Law of Torts, vol 1 (1998) 127 ff; Geneviève Schamps, La mise en danger: Un concept fondateur d’un principe général de responsabilité (1998); Bernhard A Koch and Helmut Koziol (eds), Unification of Tort Law: Strict Liability (2002); Cees van Dam, European Tort Law (2006); Jean-Sébastien Borghetti, ‘La responsabilité du fait des choses’ (2010) Revue trimestrielle de droit civil 1.