Article 1382 of the civil code, now Article 1240 since the reform of the law of obligations that came into force on October 1, 2016, retains the same wording as in 1804: “Any act of man that causes damage to another obliges the one by whose fault it occurred to repair it.” The simplicity of this formula masks a jurisprudential mechanism that continues to branch out, particularly in areas not addressed by general articles.
Opposability of the contract to third parties: a recent lock on tort action
The commercial chamber of the Court of Cassation established, by a ruling on July 3, 2024 (n° 21-14.947), and then confirmed on December 17, 2025 (n° 24-20.154), a principle that redefines the relationship between contractual and tort liability. A third party to a contract can now be opposed certain limits of contractual liability when acting on the basis of Article 1240.
In practical terms, a subcontractor or a business partner who suffers damage related to the non-performance of a contract to which they are not a party can no longer systematically bypass the limiting liability clauses by invoking tort law. We observe here a strict framing of the competence option, which requires practitioners to analyze the contractual chain beforehand before choosing the basis of their action.
To delve deeper into the regime of Article 1382 of the civil code in its current applications, this jurisprudential evolution constitutes a turning point: the tortious ground is no longer an unlimited safety net.
Victim’s fault and aggravation of damage: what changes with the ruling of June 5, 2025
The third civil chamber, in a ruling on June 5, 2025 (n° 23-23.775), clarified that the fault of the victim that aggravates their own damage reduces their compensation. The principle is not new, but its concrete application is evolving.
In matters of abnormal neighborhood disturbances, for example, an owner who delays implementing protective measures or who modifies their property in a way that aggravates the consequences of the disturbance will see their right to compensation diminished. The role of the judge is refined: it is no longer just about noting a sharing of responsibility, but about precisely quantifying the part attributable to the victim’s behavior in the aggravation of the damage.
We recommend that practitioners systematically document the efforts made by the victim between the occurrence of the harmful event and the summons. A file lacking in this regard offers an opportunity for the opponent to argue for a reduction in compensation.
Economic parasitism and Article 1240: a confirmed autonomous fault
Economic parasitism remains an active litigation area before the commercial chamber. Recent case law confirms that it constitutes an autonomous fault based on Article 1240, distinct from counterfeiting. It is not necessary to have an intellectual property right to take action.
A ruling on March 18, 2026, strengthened the procedural relationship between counterfeiting and unfair competition when both actions are based on the same facts. This clarification has direct practical consequences:
- The claimant can combine the grounds in the same instance, provided they demonstrate a distinct damage for each claim
- The absence of exclusive rights (patent, trademark, design) does not close the door to an action for parasitism, as long as the captured economic value is identifiable
- Online disparagement, classified as unfair competition, falls under the same regime and is subject to increasing litigation before commercial courts
For businesses, the litigation strategy is built in two stages: first, to characterize the parasitic fault (captured investments, diverted notoriety), and then to quantify the economic damage independently of any infringement of an intellectual property right.
Divorce and Article 1240: distinguishing indemnity grounds
The first civil chamber, in a ruling on March 25, 2026 (n° 24-10.557), draws a clear line between two grounds. Article 266 of the civil code compensates for the damage arising from the dissolution of marriage, while Article 1240 covers damages caused by wrongful acts committed during the common life, independent of the divorce itself.
This distinction has concrete effects on the admissibility of claims:
- Damages based on Article 266 require that the divorce be pronounced for the exclusive fault of the spouse, or that the claimant suffers particularly severe consequences
- Those based on Article 1240 can target violence, fraudulent maneuvers regarding the common property, or violations of privacy, without a direct link to the reasons for the divorce
- The combination of both grounds is possible, but each head of damage must be distinct and proven separately
In practice, we find that many conclusions still confuse the two regimes, leading to partial rejections. The drafting of indemnity requests requires a rigorous compartmentalization of the alleged facts and the damages invoked under each ground.
Liability of judicial representatives: personal fault and limits of mission
The commercial chamber also clarified the conditions under which an administrator or a judicial representative incurs personal liability based on Article 1240. Only a fault detached from the legal mission gives rise to compensation for the benefit of creditors.
This requirement protects the representative against opportunistic actions from creditors disappointed by the outcome of a collective procedure. The alleged breach must exceed the normal scope of the exercise of the mission: characterized negligence in verifying claims, concealed conflict of interest, or prolonged inaction despite documented alerts.
The litigation remains technically demanding. The burden of proof for personal fault lies with the claimant, and the courts strictly assess the causal link between this fault and the individual damage of the creditor, distinct from the collective damage addressed in the context of the procedure.
Article 1240 of the civil code now functions as a variable geometry tool: its applications extend from commercial litigation to family law, with increasingly refined evidentiary requirements. Recent jurisprudential trends tighten the conditions for accessing tort law while confirming its subsidiary role in situations not covered by special law.
