Operating Defective Automobiles: The French Code and Its North American Cousins

Abstract

Experience has shown that certain provisions of the Napoleonic Code, like some French wines, do not fare well in Atlantic crossings. Notorious is art. 1384 whose first paragraph purports to impose responsibility for damage caused not only by one's own conduct (fait) but also that of persons for whom one is answerable or of things in one's care.' Following a list of the former group (parents, artisans, masters and employers) comes an allowing parents and artisans to escape on proof that they could not have avoided the accident. This exculpatory clause was to become the fulcrum of the whole article's destiny.2 Since it only applied in terms to parents and artisans, what was to be the basis of liability in the other instances covered by art. 1384? As is well known, during most of the Code's first century of exegesis, the view prevailed that the first paragraph was merely an elaboration of the fault principle enunciated in arts. 13823, and it was not until, under the pressure of changing social and economic conditions associated with industrialization and urbanization,3 that the courts eventually breathed life into the provision4 by constru-