Construction Law – Some welcome clarifications on the assessment of loss of enjoyment
Nathalie Dupuy-Loup
In a decision dated of 7 November 2024 (Civ.3ème, 7 November 2024, no. 22-14.088), the Court of Cassation recently set a limit, in matters of loss of enjoyment, to the principle prevailing in French law according to which the victim is not required to limit his or her loss in the interest of the person responsible. In this case, the victims of construction defects who had been compensated for the amount of the repair works by the insurer of the company responsible, had not undertaken the works necessary to remove the damage, which had therefore persisted. On the base of the principle of the right to full compensation for the damage as well as the principle according to which the victim is not required to limit his or her loss in the interest of the person responsible, the victims were claiming compensation for their loss of enjoyment of their property after receiving the compensation corresponding to the amount of the repair works for the damage.
After noting that the compensation received allowed them to carry out the works, the Court dismissed their claim, considering that the loss of enjoyment resulting from the failure to carry out the repair works, after receiving the compensation, has no causal link with the builder’s failings.
When the existence of loss of enjoyment is established in its principle by the victim, as well as its causal link with the fault committed, it is up however to the judge to set the amount of
compensation to be paid to the victim, without being able to allege that the claim was not made explicit in its amount. The judge cannot therefore refuse to compensate for loss, certain in its principle, based on the insufficiency of the evidence provided by the parties, unless he is guilty of a denial of justice. This is the principle recalled by the commercial chamber of the Court of Cassation in a decision dated of December 11, 2024 (Com., December 11, 2024, no. 23-10.028).
If the victim cannot rely on his or her own turpitude, the person responsible cannot reciprocally hide behind the evidentiary difficulties attached to the quantum of the loss of enjoyment, to claim to escape his liability.