D.+TALLON,+Pourquoi+parler+de+faute+contractuelle

The main point of this article is that fault has no place in contract law. We shouldn’t talk about contractual fault, except in certain really specific cases.

He begins by asking the question: if contractual fault is really inexecution of the K, then why not just talk about “inexecution” rather than fault?

Tallon presents seven reasons for doing away with K-al fault:

1. Tradition does not demand that we keep it around. Domat mentions inexecution as a kind of fault, but never really develops the idea of contractual fault per se. He “abandons the question” in his work and never mentions it again. Pothier does not have a theory of contractual fault either. Thus, Tallon concludes that tradition does not demand that we keep the notion of contractual fault in French law.

2. In modern doctrine, only Planiol and his intellectual “descendants” have posited a unified theory of delict and K liability, where both are based on fault. __P argues that this__ __makes sense because the foundation for liability is a failure to do what you were__ __supposed to, in either case__. __But Tallon makes the point that the two kinds of obligation__ __are different. One is a general obligation imposed by social life. Another is a__ __predetermined, specific, self-imposed obligation. Thinking in terms of “fault” obscures__ __this distinction.__

3. Contractual fault makes jurisprudence confusing. In one judgment from the Court of cassation, the panel says the DF was exonerated because he did not commit a fault, but later they go on to say that he was exonerated because he did not fail to perform his obligation. Which is the proper standard? I could fail to perform but not commit a fault in doing so…

4. The two kinds of fault are differently appreciated. Delictual fault is about the “bon pere de famille.” The standard for K-al fault, if there is such a thing, necessarily changes given the terms of the K – I can contract to act like a jerk, or like an excellent “pere de famille” and that’s okay.

5. Talking about fault in K law obscures K remedies. Fault is always remedied with damages. But inexecution of K can be resolved by performance, resiliation, etc. Talking about fault makes us lose sight of those other remedies.

6. Delictual fault is a muddy idea. Should it be appreciated objectively, morally, or as a function of conduct? We still haven’t settled the question. So why use fault as the basis for K law? It makes no sense to introduce that uncertainty into the law of K. Similarly, fault leads to debates about whether it should be presumed or proven. Why bring those tough debates into K law, when we can just say that execution is all that matters?

7. Comparatively, common law systems and the Vienna Convention support Tallon. The CML doesn’t look at fault at all – breach is all that matters. At the end of the article, he says that in situations where gross fault aggravates the consequences of inexecution, we should just talk about intentional or inexcusable inexecutions. But he admits it’s useless to try to change well-established legal jargon, so he says we can talk about fault where it is qualified (i.e., as gross or intentional).

At the end of the article, he says that in situations where gross fault aggravates the consequences of inexecution, we should just talk about intentional or inexcusable inexecutions. But he admits it’s useless to try to change well-established legal jargon, so he says we can talk about fault where it is qualified (i.e., as gross or intentional).