Salaried Bailee: A Single Fault Suffices to Incur Liability in Case of Theft

Imagine: you entrust your vehicle to a garage in Bruz for a service, and upon your return, the car has disappeared. The garage owner tells you: "It's not my fault, the thief forced the door." But had he taken all necessary precautions? That is precisely the question the Court of Cassation decided in 1989, in a ruling that still holds authority today. For professionals who receive goods on deposit (garage owners, parking attendants, antique dealers…), this decision sets a simple rule: in the event of theft or loss, it is up to you to prove that you committed no fault. Not the other way around.

This decision, rendered by the First Civil Chamber of the Court of Cassation on 4 October 1989 (appeal no. 87-18.171), concerns a salaried bailee – here, an employee of a consignment shop in Pacé. But its consequences extend to all deposit contracts, whether gratuitous or for reward. Whether you are the owner of a bailed property, a tenant of a storage box, or a real estate professional managing goods, what the judges say concerns you.

So, concretely, what should you remember? And above all, how to avoid finding yourself in a situation where you must prove your innocence?

The Facts: A Story like Those That Happen Every Day

Mrs. Anglaise was an employee of a consignment shop located in Pacé, near Rennes. Her employer entrusted her with the custody of objects deposited by customers – furniture, trinkets, valuable clothing. One evening, criminals broke into the shop and stole several items. The owner of the stolen goods turned against the consignment shop, which in turn tried to shift the blame onto its employee, Mrs. Anglaise.

The case came before the Tribunal d'Instance of Rennes, then before the Court of Appeal of Rennes. The lower courts found that Mrs. Anglaise had committed no fault: she had locked the door, and the absence of an alarm was not attributable to her, as that choice lay with her employer. The owner of the goods was therefore dismissed.

But the Court of Cassation did not see it that way. It quashed the appeal judgment on the ground that, to be exonerated, Mrs. Anglaise had to prove that the theft was not due to her fault. However, she had failed to equip the shop with an audible alarm – a negligence that the lower courts should have examined. The case was referred to another court of appeal, in Angers.

This decision illustrates a fundamental principle of deposit law: the bailee (the one who receives the thing) is presumed responsible for its loss. It is for him to demonstrate that he acted as a "good father of the family" (i.e., with all reasonable diligence). Here, the absence of an alarm was considered a potentially faulty omission.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 1927 of the Civil Code, which provides that the bailee must take the same care of the deposited thing as he takes of his own property. But that is not all: Article 1240 of the Civil Code (formerly 1382) specifies that any act of man which causes damage obliges the person by whose fault it occurred to repair it. In deposit matters, liability is presumed: the bailee must prove his absence of fault, not the other way around.

In this case, the Court of Cassation criticised the appeal judges for discharging Mrs. Anglaise without verifying whether she had taken all necessary precautions. "Whereas to exonerate Mrs. Anglaise from the consequences of the loss of the received thing, the judgment finds that she had closed the shop door; whereas in so deciding, without investigating whether she had taken sufficient precautions, by failing to equip her shop with an audible alarm, the court of appeal did not give a legal basis to its decision," writes the Court.

This solution is consistent in case law: the salaried bailee, even if not the owner of the business, remains bound by a reinforced duty of care. It is not enough for him to invoke theft by a third party; he must demonstrate that he implemented all reasonable means to prevent it. In plain English (for once, let us use the expression): it is not because you locked the door that you are beyond reproach. If an alarm would have deterred the burglars, its absence may constitute a fault.

Note that the decision does not definitively condemn Mrs. Anglaise: it refers the case back so that the lower courts can examine whether the absence of an alarm is indeed faulty. But the message is clear: the burden of proof weighs heavily on the bailee.

What This Changes for You — Concretely

For owners who entrust property (car to a garage, furniture to a storage company, valuable item to an auctioneer), this decision is a protection: if the property disappears, you do not have to prove the professional's fault. It is up to him to prove that he did not fail. In practice, this means you can obtain compensation without having to demonstrate a specific negligence – the mere fact that the property was stolen or lost suffices to engage his liability, unless he proves force majeure (natural disaster, act of terrorism…) or his absence of fault.

For professionals (garage owners, antique dealers, parking managers…), the ruling is a warning. You must secure your premises: alarm, CCTV, safe, double locking… If you do not, you risk being held liable for a theft, even if you are not the owner of the premises. Concrete example: a customer entrusts a classic car valued at €80,000 to a garage in Pacé. The garage is burgled and the car is stolen. The owner claims €80,000. If the garage does not prove that it had an alarm system and appropriate surveillance, it will have to pay. For employees like Mrs. Anglaise, liability may also be incurred personally if they have committed gross negligence (e.g., leaving the door open).

For tenants of a storage box or parking space, the situation is similar: if the property entrusted to the custodian disappears, it is up to the custodian to prove his absence of fault. But beware: if you simply rent a space without a custodial service (self-service parking), the contract is not a deposit but a lease, and the lessor's liability is less heavy.

Four Tips to Avoid This Type of Dispute

• For professionals: install security devices adapted to the value of the goods. An audible alarm, as mentioned in the ruling, is a minimum. For high-value goods, add CCTV, a safe or security guards. Keep installation invoices and maintenance contracts to prove your diligence.
• For individuals: before entrusting property, check the security conditions. Ask the professional what measures are in place. If you entrust a valuable item, require a written clause specifying the guarantees. Photograph the item before leaving it.
• For both parties: formalise the deposit contract in writing. A receipt or deposit note describing the object, its value and the conditions of custody is essential. In case of dispute, it will serve as evidence. Specify whether the deposit is gratuitous or for reward – liability is heavier in case of remuneration.
• In case of theft: act quickly. File a complaint with the police or gendarmerie within 24 to 48 hours. Notify the bailee by registered letter with acknowledgement of receipt. Keep all supporting documents (purchase invoice, photos, expert report). If the professional refuses to compensate, bring the matter before the Tribunal Judiciaire (up to €10,000, it is the Tribunal de Proximité).

Further Reading: Related Case Law and Developments

This 1989 decision is part of a consistent line of the Court of Cassation. Already in a ruling of 18 February 1971 (no. 69-13.024), the Court had held that the bailee must prove his absence of fault in case of theft. More recently, in a ruling of 12 February 2020 (no. 18-26.434), the Commercial Chamber recalled that the custodian of goods (a carrier) cannot exonerate himself by invoking theft if security measures were insufficient. The trend is therefore towards strengthening the liability of the professional bailee.

Since the 1989 ruling, the law has evolved: Law no. 2018-287 of 20 April 2018 strengthened the obligations of storage professionals (storage companies) by imposing compulsory insurance. But the principle of the burden of proof remains unchanged. Note however: for gratuitous deposits between individuals (lending your cellar to a friend), liability is less severe: the bailee is only bound by a simple duty of care.

If you are faced with a dispute, know that judges assess on a case-by-case basis. A faulty alarm, a badly closed door, a lack of surveillance… anything can be considered a fault. The 1989 ruling remains a reference for lawyers and judges: it establishes the principle that the bailee must "take sufficient precautions," without the list being exhaustive.

Frequently Asked Questions

1. What should I do if I entrust property to a professional and it is stolen?
File a complaint immediately, then send a written claim to the professional (registered letter with AR). If he refuses to compensate, you can bring the matter before the Tribunal Judiciaire. You do not have to prove his fault: it is up to him to prove that he took all necessary precautions.

2. Can I be held liable as an employee if I keep property for my employer?
Yes, if you commit a personal fault (negligence, failure to lock, absence of alarm that you were supposed to activate). The Anglaise ruling confirms this: the salaried bailee must prove his absence of fault. But if the fault stems from a lack of equipment attributable to the employer, the employer is liable.

3. What are the time limits for taking legal action after a theft?
The limitation period is 5 years from the theft (Article 2224 of the Civil Code). But for deposit contracts, the period runs from the date the bailee refused to return the property. Do not delay: gather evidence and consult a lawyer quickly.

4. Must a deposit contract be in writing to be valid?
No, a deposit contract can be verbal (Article 1919 of the Civil Code). But without writing, it will be difficult to prove the existence of the deposit, the nature of the property and its value. It is better to have a written document, even a simple one (a handwritten receipt).

5. What should I do if the professional invokes force majeure to refuse compensation?
Force majeure (natural disaster, war, etc.) is very rarely accepted in the context of theft. The mere fact that a third party committed the theft is not a case of force majeure, as it was foreseeable and avoidable through security measures. If the professional invokes it, ask him to prove that the theft was unforeseeable and irresistible (e.g., an armed robbery with violence).

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