Contractual Relationship and Civil Liability: When the Contract Does Not Exclude Fault

Imagine: you own a flat in Salon-de-Provence, and you sign a lease with a tenant. Everything seems clear. But one day, this tenant causes a water leak in the neighbour's flat downstairs because he neglected to turn off a tap before leaving for the weekend. The angry neighbour demands damages from you. But here's the thing: the lease binds you to the tenant, and you wonder whether this contract protects you or, on the contrary, prevents you from suing your tenant in court. This is precisely the type of question the Court of Cassation decided in a ruling of 21 November 2018 (No. 17-81.096).

The question is simple: can the mere fact of having a contract with the person causing you damage prevent you from bringing civil proceedings in a criminal court (i.e., claiming compensation before a criminal court)? The answer, which many ignore, is no. The Court of Cassation states clearly: “The existence of a contractual relationship between the perpetrator of the facts and the civil party is not in itself capable of excluding the admissibility of the latter's civil action.” In other words, even if you have signed a contract, you can still sue the other party for fault, if that fault has caused you harm.

But what exactly does this change for you, as a landlord, tenant or real estate professional? In this article, I will dissect this decision, explain its reasoning, and above all give you practical advice to avoid disputes or know how to react if you face a similar situation. And as always, I will use concrete examples from our region, whether in Martigues or Salon-de-Provence.

The Facts: A Story That Happens Every Day

To understand properly, we need to go back to the context of the case. Mr. Y, a resident of the region, was used to betting on football matches. But one day, he placed much larger bets than usual, and he lost. Except that he placed these bets with a bookmaker with whom he had a contract. This bookmaker, a sports betting company, had opened an account for him. Mr. Y lost money, and he considered that the bookmaker had committed a fault by accepting such high bets without warning him of the risk. He therefore filed a complaint and brought a civil action in criminal proceedings (i.e., he claimed compensation for his loss before the criminal court).

The bookmaker then argued that, since a contract existed between him and Mr. Y, the criminal route was closed. According to him, contractual disputes must be settled before civil courts, not criminal courts. This is a classic argument: it is called the principle of non-cumulation of contractual and tortious liability (Article 1240 of the Civil Code, which requires reparation for damage caused by fault). But the Court of Cassation rejected this argument. It held that the contract did not prevent Mr. Y from bringing a civil action in criminal proceedings, because the bookmaker's fault (having accepted excessive bets) was a tortious fault (a fault independent of the contract, causing damage to another).

What is interesting is that the decision does not concern the merits (whether the bookmaker actually committed a fault), but the admissibility of the civil action in criminal proceedings. The Court simply says: “The fact that there is a contract does not prohibit you from going before the criminal judge to claim compensation.” This is a confirmation of earlier case law, but with very concrete implications in real estate.

The Reasoning of the Court — Explained

The Court of Cassation relies on Article 2 of the Code of Criminal Procedure, which provides that “the civil action for compensation for damage caused by a crime, a délit, or a contravention belongs to all those who have personally suffered damage directly caused by the offence.” And it adds that the existence of a contract does not eliminate this right, provided that the damage results from a fault that constitutes a criminal offence.

In other words, to bring a civil action in criminal proceedings, three conditions are required: a harm (damage), a fault (which may be a criminal offence), and a causal link between the two. The contract is not an obstacle. The Court even specifies that the civil action is admissible “provided that the claimant relies on a personal and direct harm, resulting from a violation of criminal law.”

What few people know is that this decision is actually a confirmation of settled case law. Already in 2006, the Court of Cassation held in a judgment “B. v. Company X” that the victim of fraud could bring a civil action in criminal proceedings even if he had signed a contract with the perpetrator. The originality of the 2018 decision is that it concerns a gaming contract (sports betting), but the principle is transposable to all contracts, including residential leases, sales contracts, or construction contracts.

However, note: this does not mean that any breach of contract is a criminal offence. The fault must be serious enough to constitute an offence (fraud, breach of trust, deception, etc.). But if that is the case, the victim can choose the criminal route, which is often faster and more deterrent.

What This Changes for You — Practically

For a landlord in Martigues, this decision is an additional weapon. Imagine your tenant sublets your flat without your permission, which is a breach of the lease and may constitute an offence of “unlawful subletting.” If the subtenant causes damage, you can not only take civil action (to terminate the lease) but also bring a civil action in criminal proceedings if the tenant has committed a criminal fault (for example, fraud by hiding the subletting).

For a buyer, it is the same. If you buy a property and the seller hides a hidden defect (for example, a structural crack), you can sue him criminally for deception, even if you have signed a sales contract. The decision allows you to bring a civil action in criminal proceedings to obtain damages, in addition to the action for latent defects.

For a co-owner, if the managing agent commits a serious fault (for example, embezzling funds), the management contract does not prevent him from being criminally prosecuted. undefined, I have come across cases where the managing agent invoiced for fictitious works: the co-owners were able to bring a civil action in criminal proceedings and obtain compensation.

Practically, if you are in this situation, you must first gather evidence of the fault (contract, written exchanges, photos, witness statements). Then, file a criminal complaint with the Public Prosecutor or directly with the criminal court. You can also consult a lawyer to assess the admissibility of your civil action in criminal proceedings. Time limits vary: the limitation period for public prosecution is generally 6 years for délits, but you must act quickly.

Four Tips to Avoid This Type of Dispute

• Draft a clear and precise contract: whether it is a lease, a preliminary sale agreement or a management contract, have it reviewed by a professional. Mention the obligations of each party and the consequences in case of breach. A well-written contract reduces the risk of disputes.
• Document everything in writing: keep all exchanges (emails, recorded delivery letters, text messages). In case of a problem, this evidence will be essential to demonstrate the fault of the other party.
• Carry out prior checks: before signing a lease, check the tenant's identity, income, and history. Before buying, have a technical survey (asbestos, lead, termites) carried out by an independent professional.
• Act without delay in case of dispute: if you notice a fault, send a formal notice (recorded delivery letter with acknowledgement of receipt) demanding compensation. If the fault persists, consult a lawyer to take legal action. Do not wait for the situation to worsen.

Further Insight: Related Case Law and Developments

This decision is part of an already well-established line of case law. For example, in a judgment of 12 December 2000 (No. 99-85.634), the Court of Cassation had already held that the victim of a breach of trust could bring a civil action in criminal proceedings even if he had entrusted funds under a contract. Similarly, in a judgment of 8 February 2011 (No. 10-81.585), it admitted the admissibility of a civil action in criminal proceedings by an investor who was a victim of fraud, despite the existence of a loan agreement.

However, there is a limit: if the harm is purely contractual (for example, a delay in delivery without criminal fault), the civil route remains the only possible one. The trend of the courts is therefore to distinguish between simple contractual non-performance and criminal fault. For the future, we can expect this case law to be confirmed, or even extended to other areas such as construction (construction defects) or insurance (abusive refusal to indemnify).

Frequently Asked Questions

Can I sue my tenant criminally for unpaid rent? No, unpaid rent is a civil contractual dispute. But if the tenant has deliberately damaged the property or committed fraud (by providing false documents), you can bring a civil action in criminal proceedings.

What should I do if my neighbour causes a water leak? If the neighbour is a tenant, you can take action against him (and against his insurer) on the basis of tortious liability (Article 1240 of the Civil Code). The lease between the landlord and the tenant does not prevent you from suing the tenant.

What are the time limits for bringing a civil action in criminal proceedings? The limitation period for public prosecution is 6 years for délits (such as fraud), and 3 years for contraventions. But it is advisable to act as soon as you become aware of the damage.

How much does it cost to bring a civil action in criminal proceedings? Legal fees vary (count between €1,000 and €3,000 for a first instance), but if you win, the court may order the perpetrator to reimburse part of these costs. You can also obtain damages.

Do I have to go through a lawyer? No, you can bring a civil action in criminal proceedings alone, but the assistance of a lawyer is strongly recommended to build a solid file and follow procedures.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →