Personal liability of an employee: even on orders, your fault can affect your assets

Imagine: you own a warehouse in Fontaine, leased to a construction company. One day, without warning, an employee of that company forces the door of your warehouse and takes back stored materials, claiming his boss ordered him to do so. The tenant files a complaint: the materials were delivered under a contract, and the repossession was carried out without his presence and without judicial authorisation. You wonder: can this employee be held personally liable, or must his employer bear everything?

The Court of Cassation answered this question in a judgment of 22 November 1978 (No. 77-12.571), which remains a leading authority in civil liability law. In summary, the High Court ruled that an agent (employee) incurs personal liability if he commits a fault, even if he claims to have acted on the orders of his employer and on his behalf. The alleged order must be produced, and the employee is not required to obey blindly: a grossly unlawful order cannot be an excuse.

In other words, you cannot hide behind your boss's instructions to justify an act you knew or should have known to be unlawful. This decision protects third parties (such as owners, tenants, creditors) by allowing them to directly sue the person who caused the damage, without being blocked by the corporate veil. But what does this actually change for you, a resident of Vienne or Grenoble? Let's dive into the facts and reasoning.

The facts: a story like many everyday ones

The case pits the cooperative society La Maison pour Tous (a construction company) against one of its former employees, Mr X. The company had instructed a bailiff to draw up a report concerning materials delivered to a client. The employee, on the orders of his employer, repossessed these materials by forcing the lock of the warehouse where they were stored, without the client being present. The client then sued the company and the employee for liability.

Before the Court of Appeal, the employee argued that he had merely followed his employer's instructions and that his personal liability could not be engaged. The company, for its part, tried to exonerate itself by blaming the fault on its agent. However, the trial judges found the employee personally at fault, holding that the order was not produced, that the employee was not required to be passively and blindly obedient, and that he could not consider it lawful to repossess delivered goods without judicial authorisation and without the recipient being present, especially since it required breaking in.

The Court of Cassation upheld this analysis: the employee committed a personal fault, distinct from that of his employer, and must therefore compensate the loss. What few people know is that this decision predates the famous Costedoat case law (2000) on the immunity of agents, but it remains relevant for cases of intentional fault or manifestly unlawful orders. In short, even if you are a mere executor, you must refuse to obey an order that is clearly contrary to the law.

The court's reasoning — deconstructed

The legal basis of the decision is Article 1382 of the Civil Code (now Article 1240 since the 2016 reform), which provides: 'Any act of man which causes damage to another obliges the person by whose fault it occurred to repair it.' In simple terms, if you cause damage through your fault, you must compensate the victim.

The Court of Cassation reiterates that the liability of an agent can be established even if he acts on the orders of his employer, provided he has committed a personal fault. To characterise this fault, the judges note several elements: the alleged order was not produced (therefore unproven), the employee was not in a situation of passive obedience (he had discretion and had to exercise his judgment), and the act itself was manifestly unlawful (repossession without right, with breaking and entering).

However, the decision does not undermine the principle that the employer is liable for the faults of his agents (employer's liability). But it opens a parallel avenue against the direct perpetrator of the fault. undefined, I have encountered cases where employees, through misplaced zeal, caused significant damage to third parties, and victims chose to sue both the company and the employee to maximise their chances of obtaining redress. In this case, the Court held that the employee could not ignore the unlawful nature of his act: repossessing goods delivered under a contract, without a court decision and by forcing a door, is an inexcusable fault.

This solution is in line with case law that refuses to grant agents absolute immunity. If the employee commits an intentional fault or gross negligence, he incurs personal liability. Here, the fault is described as 'knowingly being an accomplice to a fault of his employer', reinforcing the idea of awareness of unlawfulness.

What this changes for you — concretely

For a landlord owner in Vienne: if an employee of your tenant damages your premises while carrying out an illegal order (for example, forcing a door to recover materials), you can directly sue that employee for compensation, without waiting for his employer to be solvent. Suppose repairs cost €5,000. If the employer is in liquidation, you can turn to the employee over his personal assets.

For a tenant in Fontaine: if an employee of your supplier repossesses goods you have already paid for without authorisation, you can claim damages from both the company and the at-fault employee. In practice, this doubles your chances of success.

For a co-owner: if the building caretaker, on the orders of the management company, removes property belonging to a resident without right (for example, by breaking a padlock), that caretaker may be held personally liable. The manager himself could also be sued for giving an illegal order.

What you need to remember: the personal liability of an agent is not a rare exception. It can be invoked whenever the order is 'grossly unlawful' — a term that judges interpret broadly. If you are a victim of such an act, do not hesitate to name the employee in your claim.

Four tips to avoid this type of dispute

• Never obey a manifestly unlawful order. If your superior asks you to break into premises, destroy property, or perform an act without right, refuse and request written instructions. Under pressure, document your refusal.
• Demand a written order for any sensitive action. A verbal order is difficult to prove. If you must act on behalf of your employer in unusual circumstances (repossession of goods, eviction), ask for an email or memorandum.
• Take out professional liability insurance. Even if your employer has insurance, your own can cover damage you cause personally. Check exclusions for intentional fault.
• Consult a lawyer before acting. If you are unsure about the legality of an order, seek advice. A 30-minute consultation can save you years of litigation.

Further reading: related case law and developments

This decision is part of a jurisprudential trend later clarified by the Costedoat judgment (Full Court, 25 February 2000), which established the principle of immunity for agents except in cases of personal fault separable from their functions. Personal fault is characterised by an act committed outside the scope of employment, or by intentional or inexcusable fault.

Before 1978, the Court of Cassation had already held that an agent could be liable if he had committed gross negligence (Civ. 2e, 8 March 1966). The 1978 decision confirms this trend by emphasising the absence of blind obedience. More recently, the Court of Cassation held an employee personally liable for knowingly violating a building prohibition (Civ. 3e, 4 June 2013, No. 12-17.895).

The trend is therefore towards protecting third parties against employee abuse of power while preserving the employer's liability. In practice, courts examine on a case-by-case basis the degree of awareness of unlawfulness by the employee.

In practice: what to do

FAQ: questions you may have

1. Can I personally sue an employee who damaged my property on the orders of his boss?
Yes, if the order was grossly unlawful and the employee should have known it. You must prove his personal fault (e.g., breaking and entering, violence, theft).

2. What if the employer is insolvent?
You can turn to the at-fault employee. In the 1978 case, the victim sued both. It is advisable to bring both in the same proceedings.

3. What are the time limits for action?
For civil liability, the limitation period is 5 years from the manifestation of the damage (Article 2224 of the Civil Code). For property damage, note the 10-year period for latent defects.

4. Can the employee be covered by his employer's insurance?
Yes, if the act is committed within the scope of employment, the employer's liability insurance may cover the employee. However, in case of intentional fault, the insurer may refuse cover.

5. Does a written order protect the employee?
No, not if the order is unlawful. The written order may prove that you acted on orders, but it does not exonerate your personal fault if the order was manifestly unlawful.

Concrete situations

Landlord owner in Vienne: Your tenant, a construction company, repossesses materials through an employee who forces the warehouse door. You suffer damage of €3,000 (lock, damaged door). You can sue the company and the employee. In practice, first claim against the company, but if it is insolvent, pursue the employee based on this decision.

Tenant in Fontaine: A delivery person, on his employer's orders, repossesses furniture you have bought and paid for, entering your home without authorisation. You lose €2,000 worth of goods. The delivery person incurs personal liability because he committed a fault by violating your home.

Co-owner in Grenoble: The caretaker, on the orders of the management company, removes your roller shutters without a court decision, damaging them. You can sue the caretaker for personal fault (breaking and entering, abuse) and the management company for lack of authority.

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