Estimated reading time (in minutes)

The facts of the case which gave rise to the commented judgment illustrate the well-established case law of the Court of Cassation on the question of the distinction between a contract of enterprise and a contract of sale and on that of intentional fault in the meaning of Article L. 113-1 of the Insurance Code . To qualify the contract of sale or the contract of enterprise, the case law refers to the criterion of specificity. Is a work rental contract, the contract which relates not to things determined in advance but to specific work intended to meet the particular needs expressed by the principal. In this case, the owner of a piece of land had built a detached house there.

Generalized cracks having appeared, he had chosen to proceed with its demolition and then its reconstruction. Significant cracks having again been observed, he had assigned the contractor and his insurer for ten-year liability. The contractor had called the supplier and the manufacturer of the reinforcement kit as a guarantee. His action was dismissed on the grounds that the contract concluded with the supplier was a sales contract. Taking up the jurisprudential criteria, the contractor noted that calculations had been necessary to produce the kit with plan, which indicated, according to him, that the characteristics of the product had been determined in advance for the needs of the contracting authority. .

For the Court of Appeal, however, the fact that the reinforcement kit was accompanied by a plan was not a sufficient element to qualify. There could be no specific work since the supplier had not subcontracted its service to the kit manufacturer. The Court of Cassation approves this reasoning. The supplier having bought himself, and not had the material specially manufactured, he had only resold this product to the contractor.

Article 113-1 of the insurance code provides that the insurer is not liable for losses and damages resulting from an intentional or fraudulent fault on the part of the insured. As soon as the occurrence of the damage is certain, this fault has the effect of removing the random nature of the contract. It was debated whether it was enough that the insured deliberately committed the fault or whether it was also necessary that he wanted the damage. The Court of Cassation considers that within the meaning of this text, the intentional fault which excludes the guarantee of the insurer is that which supposes the will to cause the damage and not only to create the risk.

Thus, as developed in the appeal of the commented judgment, the mere awareness on the part of the insured that his voluntary action or omission will have the effect of creating the damage is not sufficient to establish that the insured had the will to cause the damage as it occurred. The facts of this case show that the Court of Cassation intends to maintain this strict definition of intentional fault. The contractor who had built the foundations had assisted the project owners during the appraisal operations for the first disaster. He was therefore aware of the nature of the ground and the need to build specific foundations. The Court of Appeal, to deny the guarantee of the insurance company, argued that he was therefore necessarily aware, by carrying out the construction without carrying out the appropriate foundations, that the disorders could only recur. It was future and certain harm.

It is censured by the Court of Cassation on the grounds that this motivation does not characterize the will of the contractor to create the damage as it occurred.