ORIGIN AND APPLICATION OF ART. 1384 CODE CIVIL

What a more generalized approach can look like, may be gleaned, inter alia,^[6016] from the development of French jurisprudence in the course of the last century. A fairly insignificant-looking clause in art.

1384 code civil ("One is responsible not only for the injury which one causes by one's own action, but also for that which is caused by the action of persons for whom one is responsible, or of things which one has under one's guard") has been used by courts and legal writers to build a second track of delictual liability alongside the famous general clause of art. 1382 code civil.^[6017] A landmark within this development was the arret Jand'heur, a decision handed down by the Cour de cassation in plenary session.^[6018] ^{^[6019] Here it was held that the custodian of a thing is liable, irrespective of fault, provided, however, the damage did not arise from an external and irresistible event, that is, vis maior. Whether or not the thing in question is intrinsically dangerous or not, is irrelevant. Razor-blades, hatpins, toy balloons and tennis balls have been held to constitute things in terms of art. 1384 code civil, as have all kinds of machinery, motorcars, trains, ships, bicycles and elevators, gas, electricity, water, chemicals and X-rays.³⁵⁰ As a result of the remarkably extensive interpretation given to this provision of the code, it has largely been unnecessary for the legislator to intervene and introduce strict liability by way of special statutes.^[6020] The modern French doctrine on liability for things under one's guard has been compared to a skyscraper constructed on the head of a pin.^[6021] Yet, in reality, this pinhead was perhaps not quite as insignificant as it used to appear—and still appears—to many;^[6022] for the custodian's liability, as it found its way into art. 1384 code civil, probably descends from a passage in Domat's Loix Civiles,^[6023] which was designed to link, and at the same to generalize, the principles underlying the contemporary French version of the pauperian remedy, on the one hand, and the actiones de effusis vel deiectis and de posito vel suspense on the}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

ORIGIN AND APPLICATION OF ART. 1384 CODE CIVIL

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