P.+RÉMY,+La+responsabilité+contractuelle

__**"La responsabilité contractuelle: histoire d'un faux concept" par Philippe Rémy (de FRANCE)**__

**Apology:** This is the hardest article I have ever attempted to read. It is summarized by Pineau and so I will not finish the detailed summary, but will leave it at the brief summary below.

The invention of "contractual responsibility" is new. Normally, the Code (the CCF) views compensation from inexecution of a K as a mode of execution of the K (by forced payment) and not as reparation of injury caused (which is how ECO compensation is viewed). The consequences: (1) ideas from ECO responsibility are swarming the K'al sphere (2) using K'al responsibility to fix ECO injuries (ie: physical injury to a co-contractant) complicates our civil responsibility system One important doctrine proposes a united civil responsibility - eliminating the difference between K'al and ECO responsibility, or having many 'legal responsibilities' which transcend ECO and K. Rémy finds this idea contestable (and a false concept) and suggests, rather, a return to K'al responsibility which is merely a mode of execution of the K (by forced payment).
 * Brief summary:**

[1] The last century brought the idea that K'al responsibility plays the role of //reparing for damages unjusty caused// instead of the classic codal idea that its role is //execution of the K by equivalent (money)//. We should return to this classic idea. ECO responsibility should have //exclusive// competence to repair for injury. Disadvantages of new K'al responsibility: it is hard to show the creditor the possible remedies for inexecution of the K

__**Part I: The coming into being of K'al responsibility**__ [2] Rémy discusses the placement of the articles on K'al responsbility in the CCF. The right of the creditor to damages for inexecution of the contract is //an effect of the obligation contracted for//. It is even the form that the obligation takes when specific performance is not available to the creditor. The debtor must pay damages __because of the inexecution__, and NOT because of the damage caused to the creditor. The debtor must pay, not enough money to put the creditor back where he was before, but damages __equivalent to the gain that would've been achieved with the contract.__ Everything goes against the notion of a K'al responsibility.

[3] ECO responsibility is quite different from this: it is "a commitment without a regulated convention". It is placed very far from the K'al section of the code. The sources of the K'al and ECO obligations are very different: one is from a contract, one is from any situation BUT a contract. That's why K is so different from ECO: in one, there is a pre-existing obligation between the parties before the injury occurs. The new doctrine presents the inexecution of the K as "un fait générateur", replacing the contract as source of the obligation to pay damages. This supposes inexecution produces two effects: (a) to cancel out the debt created by the contract and (b) to create a new debt of damages. In the classic codal system: inexecution does not end the contractual obligation - instead it is continued when the creditor asks for payment by equivalent. A debtor must prove 'force majeure' to have his original obligation quashed. Inexecution of a K is NOT a tort; and reparation for inexecution is not repair for injury. Payment of damages for inexecution is a remedy, and is one of many remedies (specific performance, resolution of the K) which are in no way equivalent to compensation for damages.
 * Classic thesis: inexecution of a contract is not the source of a new obligation, it is the contract itself that is the source of damages in case of inexecution.**

[4] For Ks that deal with the transfer of a right (ex: lease) or the furnishing of an object (ex: renting an object), the actions open to the creditor are actions in warranty, which bear no resemblance to ECO responsibility. The modern doctrine tries to explain a claim in warranty in terms of responsibility: "the obligation to indemnify another for a damage which was accidental" and calls it a "une dérogation au droit commun" (ie: an exception to common law). But normally damages are a sanction for the fault of the debtor. Things like an owner of a building having to provide a house in a liveable condition are the __normal__ effects of a lease, and are not "exceptional to common law". Actions in warranty generally don't lead to damages, but rather to restitutions or quanti minoris (which don't resemble civil responsibility). The actions for damages for these specialized contracts obey a "principe de typicité" which contrasts with the "atypical" action of ECO. There are nominal (named) contractual actions in the code, because there are named contracts. These named actions are attached to the contract itself. The damages owed by a debtor are laid out for particular contracts: how to pay them, how much to pay, when they are forgiven, etc. It was misleading for the CCF to say a contractant is "responsible" for the damages - that word could well have been "charged". The code determines, not the responsibility of the contractant, but the //extent of his contracted obligation//. This variety of contract-specific claims are there to match the specificity of the contract. They cannot be brought under one umbrella of K'al responsibility.

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__**Part II: The consequences of K'al responsibility**__

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__**Part III: The future of K'al responsibility**__

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