UPHF Lawyers' Day

Liability, because it is a mechanism for ensuring compliance with the law, through the sanction it inflicts or the compensation it imposes, is thus a contentious issue found in most branches of law. The relatively common functions it performs make it a sufficiently cross-cutting subject for us to be able to work on and discuss it. But since the idea is not to erase our specializations, but rather to highlight them, there's nothing better than to evoke the current issues facing the various liability laws. From then on, several approaches to the subject are conceivable.

The first approach may involve the study of recent emblematic cases that have highlighted the law of liability in which they take place. Liability is characterized by its ability to adapt to social progress and to the apprehension of emerging phenomena. Environmental, health, political and other scandals lend themselves to the study of the evolution of liability law, with each time a constant tension between the need to take sufficient account of the victim without making unreasonable demands on the responsible party. Adaptation, but also sometimes maladjustment. Do the general conditions of liability need to be modified for it to fulfill its function, or are they sufficiently flexible to satisfy its mission? The multiplication of legislative liability regimes and compensation funds are probably just one element in this vast equation in which the judge acts as a relay and catalyst for certain expectations of the social body.

The second approach can be comparative through the highlighting of fundamental and persistent differences between liability regimes. In private law, the victim may invoke the fault of one of the parties to the contract, even though he or she is a third party to it. However, the principle of the relative effect of contracts retains a remarkable vigor in administrative law. Why should the victim be treated differently depending on whether he or she is simply brought before a judicial or administrative judge? Conversely, private law is characterized by a relative uniqueness of the fault condition, while public law still sometimes requires gross fault. How can we explain the fact that inexcusable fault on the part of the employer and gross negligence on the part of the public judicial service have not given rise to a more general gradation of fault in civil law? Why does the obligation in solidum remain an exception in public law, but constitute one of the main cardinals of civil liability? There is probably room for harmonization, or for integrating rules present in other branches. Or not