Le concours des responsabilités contractuelle et délictuelle. Réflexions comparatistes à l'occasion du projet de réforme du droit français de la responsabilité civil.

Abstract

The French government has proposed to reform the remaining body of liability law. It has

suggested to codify and modify the well-known principle of non-cumul des responsabilités contractuelle

et délictuelle, that has originally been developed by the Cour de cassation. This contribution examines the government’s proposal from a comparative perspective. This perspective reveals, first of all, that the decision to allow a concurrent claim in delict or not is not only influenced by the theoretical arguments that feature prominently in legal literature, but also by the scope and structure of the laws of contract and delict. Secondly, the contribution argues that the question of concurrence cannot be settled satisfactorily as long as important differences between the laws of contract and delict continue to exist. The conclusion must be that the laws of contract and delict should be reunified as much as possible. Inspiration for such an approach can be drawn from Dutch private law.