FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
9.2 Rules Regarding Damages The main rule for damages is full compensation, meaning that the claimant may only receive the exact compensation for the damage suffered, without any kind of personal gain. This princi- ple applies to contract law, with only damage that could have been foreseen at the time of the contract’s conclusion being compensated. Therefore, punitive damages, mostly accepted in common law, do not exist in French civil law. However, the parties to a contract may decide to insert a penalty clause ( clause pénale ), appli- cable in case of breach of contract and upon formal notice by the other party. Only the judge can either moderate or increase such a clause if its amount is manifestly excessive or too low compared to the suffered damage. In certain instances, such clause may be considered abu- sive (such as in residential lease agreements or consumer disputes). In principle, evidence of direct, personal and cer- tain damage must be provided in order for an injury to be recoverable. Therefore, prospective damages (which could never materialise) are not compensated. However, the boundary between certain and uncertain is not always easy to draw. Damages resulting from a loss of opportunity, defined as the loss of a “favourable event”, are now deemed to be compensable, although they are only entitled to partial compensation (ie, the estimated value of the probability of that positive event happening). In terms of classification, French civil law com- monly distinguishes between pecuniary damage (loss of margin, loss of expected profit, etc) and non-pecuniary (or moral) damage (harm caused to honour, reputation, emotional damage, etc).
In the case of personal injury damage, when the physical integrity of an individual is at stake, a reference table called the Dintilhac nomenclature is useful to identify the many different types of damage that can be repaired. Damages can be evaluated by judicial experts. 9.3 Pre-judgment and Post-judgment Interest Legal interest may be added to the damages. It incurs from the date of delivery of the court deci- sion (or of the formal notice), and is calculated according to either legal or contractual rates. 9.4 Enforcement Mechanisms of a Domestic Judgment Since 2020, all court decisions are automati- cally enforceable immediately (ie, provisionally), notwithstanding an appeal against the decision. However, the court may decide to dismiss pro- visional enforceability, in whole or in part, if it is deemed incompatible with the nature of the case or if it entails excessive consequences. Similarly, in the case of appeal or opposition, the first president of the court may be asked to dismiss provisional enforcement if there is a serious plea for annulment or if it entails mani- festly excessive consequences. The judge may also order the debtor to pay penalty payments in case of failure to pay (a penalty for each day of delay). If the debtor does not spontaneously adhere to the judgment, the creditor shall serve the deci- sion by bailiff. The bailiff may then proceed to the following attachments provided for by the French Code of Civil Enforcement Procedures:
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