Marie Dugué, L’intérêt protégé en droit de la responsabilité civile (LGDJ, Paris 2019, Bibliothèque de droit privé, vol 588). XV + 482 pp. ISBN 978-2-275-06043-9. € 58 (paperback)

Prof Marie Dugué’s monograph on ‘Protected Interests in French Civil Liability’ is one of the few doctoral theses that was selected by the French legal publishing house LGDJ in 2019 to feature in their illustrious private law collection. To French tort lawyers, Dugué’s work will appear undeniably ambitious, almost certainly controversial, and at the very least thought provoking. To non-French tort lawyers, Dugué’s work may be surprising but will be of great interest. In a nutshell, the monograph is sure to leave no reader indifferent.

The generosity of the French system of civil liability towards claimants is well known and has long been chronicled in the legal literature.^[1] In the last thirty years however, an increasing number of French scholars have voiced concern over the excesses produced by the current pro-victim trend:^[2] the solutions developed by judges are criticised for being too casuistic and often unpredictable, leading to inconsistent results with little or no discernible rationality. Instead of restoring coherence and order to this area of law, the intervention of the legislature has resulted in the creation of a plethora of specific liability regimes with their own rules, thereby contributing to the further fragmentation of civil liability. Accordingly, the victim-centred approach favoured by the French system appears to have led to the constant – and disorderly – expansion of civil liability. Against this background, Marie Dugué’s monograph seeks to explore whether the concept of ‘protected interests’ (ie interests that a legal system deems worthy of protection) could be used to help prevent the continuous expansion of French civil liability and reinstate coherence within this branch of law (at 15).

The topic of Dugué’s analysis is, in and of itself, sure to raise a few eyebrows. As French law enthusiasts may know, the French legal system – in contrast to the German or the English legal system – does not normally restrict the number or the nature of the interests that it protects. The general provision of art 1240 of the Civil Code ensures that no types of harm and no types of behaviour are a priori beyond the reach of civil liability. The author’s proposal to introduce the concept of ‘protected interests’ in French civil liability law is therefore rather intriguing. Yet, according to Dugué, this concept may be used in two different ways to bring back coherence into the law of civil liability. Firstly, the author argues that the concept of ‘protected interests’ could a minima be used to redefine the three traditional requirements of civil liability, namely the event giving rise to damage (fait géné­rateur), the damage (dommage) and causation (lien de causalité). Secondly, the author considers that the concept could a maxima be used as an instrument that could entirely restructure the French law of civil liability (contractual and extra-contractual liability). The monograph is helpfully divided in two parts with each part being dedicated to one of these two core arguments.

In the first part of the book, containing four chapters in total, the author asserts that the concept of ‘protected interests’ could be the instrument needed to ensure that the three traditional conditions of civil liability become actual control mechanisms capable of keeping the floodgates closed.

The two opening chapters draw a rather unflattering picture of the French law of civil liability, as the author seeks to outline the difficulties currently plaguing this area of law. In particular, the lack of a precise legal definition of concepts such as damage, causation or fault is identified as the key issue and the main reason for the gradual extension of civil liability law. For instance, the concept of ‘damage’ is unclear to the extent that French scholars strongly disagree as to whether there is a need to distinguish between the harm suffered by claimants (dommage) and the resulting loss (préjudice) (22 ff). Notwithstanding these debates, the gradual shift in focus from harm to loss in the evaluation of damages produced the regrettable consequence of inflating the number of recoverable heads of damage – especially non-pecuniary losses which are too numerous now to be exhaustively listed (70 ff). In addition, the author clearly shows that the requirements that must normally be met for damage to be actionable are slowly receding and thence fail to contain the flood of claims (24 ff). The definition of ‘causation’ is similarly the topic of endless debates but none of the explanations or theories provided thus far can entirely account for the flexible way that judges often approach the causal enquiry (28 ff). Finally, the concept of ‘fault’ is afflicted with the same weaknesses. Through a meticulous scrutiny of case law and the French scholarly debates, the author convincingly shows how the uncertainty surrounding the concept contributes to blurring the distinction between disciplinary misconducts (faute disci­plinaire) and fault (faute délictuelle), as well as between fault and breach of contract (faute con­tractuelle), thus further extending the reach of extra-contractual liability.

In the two following chapters, the author exposes how the concept of ‘protected interests’ could alleviate the difficulties previously identified. With regard to the condition of damage, the author contends that defining ‘loss’ (and not harm) as ‘the violation of a legally protected interest’ (125) would send a strong signal that not all interests are worthy of protection in the first place. And since not all interests are deserving of protection, the development of control mechanisms to determine which loss is recoverable is not only justified but can also be reinforced. As a result, the proposed definition of loss justifies the current control mechanisms, according to which, a loss must be personal, direct, certain, and legitimate to be recoverable (126 ff), and could be used to develop new control mechanisms (141 ff). The author also proposes that the concept of ‘protected interests’ be applied to the conditions of fault and causation through the adoption, to some extent, of the theory of Aquilian relativity (relativité aquilienne). According to this theory, claimants could only prove that fault was committed if the violation of a legal rule was specifically designed to protect their interest. The proposal is certainly controversial since French scholars have generally been reluctant – if not staunchly opposed – to the importation of this theory into French law. Nevertheless, the author builds a strong case to support her view: through using comparative law and a thorough analysis of French doctrine and case law, Dugué not only addresses the main concerns of French lawyers, but also presents the immense advantages that this theory could yield for French civil liability law.^[3]

In the second part of the book, also comprised of four chapters, the author argues that the concept of ‘protected interests’ could also be used to entirely reorganise French civil liability law. To French tort lawyers, this will probably be the most controversial part of the monograph since what the author proposes could well lead to a complete overhaul of the current liability system.

In the first two chapters, the author advocates for a new model of civil liability based on a prioritisation (hiérarchisation) of protected interests, ie where the nature and the importance of the protected interests determine the applicable rules. While such prioritisation may appear at odds with the fundamental principles guiding French civil liability, the author skilfully demonstrates that not all is as it seems in French law and that a prioritisation of interests is already, albeit covertly, at work in this legal system (218 ff). The author’s detailed examination of current trends leaves no doubt as to which interest is presently regarded as the most important: the protection of bodily integrity (257 ff). Nevertheless, since French law does not openly acknowledge the existence of such prioritisation, the results are generally less than satisfactory because other interests – such as purely economic or moral interests, for example – also continue to benefit from an extensive protection. Accordingly, the prioritisation surreptitiously applied in French law contributes to expand civil liability rather than contain it. For this reason, the author then proceeds to offer an alternative prioritisation of protected interests that could redefine the boundaries of civil liability. Drawing from the experience of other European legal systems, proposals of tort law reforms from various French and European research groups, as well as informal proposals from individual French scholars,^[4] the author explores the different options that could be selected (271 ff) before offering her own views and proposal (302 ff). Without revealing too much about the author’s choice in this review, I will only say that the prioritisation proposed would certainly ‘shake things up’ but could work in French law.

The adoption of this new model may be tempting but leaves one potential (major) issue unresolved: what would become of the current model of civil liability, organised around the key division between contractual and extra-contractual liability? This question drives the monograph’s two closing chapters. For the author, not only are the two models of civil liability in clear competition, but the traditional ‘contractual/extra-contractual liability’ divide has also started to lose ground (343 ff). The various examples provided in the book confirm that the (once numerous) differences separating contractual and extra-contractual liability are progressively dwindling, and yield to the importance given to the protection of bodily integrity. And yet, despite the current decline of the traditional model, the author deems it highly unlikely that a new model based on the prioritisation of protected interests could ever completely replace it because of the important structural reforms that would be needed (387 ff). The author is, however, more hopeful that, in the long term, the distinction between contractual and extracontractual liability may lose its relevance in regard to the protection of one specific interest, ie the protection of bodily integrity (378 ff).

Summarising Dugué’s ground-breaking work in just a few words is no easy task. In as little as 416 pages, the author manages to successfully challenge and deconstruct any preconceptions that French and non-French tort lawyers may have about French civil liability. More than that, the author offers new solutions to old (and more recent) problems. And whilst the solutions explored may be known to other legal systems, French scholars have often deemed them incompatible with French law before dismissing them altogether. Dugué challenges these assumptions and demonstrates that it is possible to use these solutions ‘à la French’. The author’s vision as to what French civil liability could look like, if we only dared implement it, is (very) convincing and, in my view, tempting. Undoubtedly, many issues that presently beset the law of civil liability would be solved. But would these solutions create new problems? Perhaps a closer look at other European legal systems may be able to shed some light on this. Given that this question goes beyond the scope of her work, we are unfortunately – but understandably – left to wonder.