Jean-Sébastien Borghetti

Bio

Professor Dr. Jean-Sébastien Borghetti graduated in management (HEC Paris) and in law (Université Paris I). He wrote his PhD on product liability in a comparative perspective (La responsabilité du fait des produits. Étude de droit comparé, L.G.D.J., Paris, 2004). He became first a professor in Nantes (2005-2009) and is now professor of private law at Université Panthéon-Assas (Paris II). His main fields of research are tort and contract law. He is currently working especially on the relationship between those two sources of obligations.

Abstract

It is quite often that someone relies on the assumption that a contract to which he is not a party has been or will be correctly executed. He may therefore suffer harm if this is not the case. Even though such a third party normally has no right to enforce the contract, he might want to claim damages against the contracting party in breach. Deciding how those claims should be handled is by no means easy from a conceptual point of view. French authors have long been tackling this question but debate has heated up recently, following the adoption by the Cour de cassation, France’s highest civil court, of a most surprising solution. The court held that any breach of contract may serve as the basis of a claim in tort by a third party against the contracting party in breach. That a rule so flagrantly contrary to legal common sense should have been adopted by France’s highest judges is a matter of wonder. It is only the latest chapter of a long story, though, and explanations for it can be suggested which point to some distinctive trends in French legal thinking. Now, however, the question is: how will French law get out of this quagmire?