DIGITAL SYNAPSE EXCHANGE · LAW & ECONOMICS

Quérable, portable, mandatable — anatomy of a profitable fault

French law as a case study

ABSTRACT

French law proclaims that whoever causes damage must repair it. It also organises the conditions under which that debt is never paid. A manufacturer who discovers a defect after sale must inform; he is not bound to seek out and indemnify. A State condemned for detaining people without judicial review reforms for the future, and its own constitutional court seals the past. In both cases the wrongdoer holds the list of his creditors and is under no duty to unroll it. I call this the quérabilité of initiative, and I show that it is what makes a fault profitable — that the reform of 2016, which made money debts portable, changed the geography of payment and nothing else, and that the remedy already exists in French law, reserved for other people.

Exergue — Three Verbs

Three Latin verbs govern the payment of a debt, and each of them says who must move. Quaerere — to seek: the creditor’s body moves, and goes to the debtor’s door. Portare — to carry: the debtor’s body moves, and brings the payment. Mandare — literally manus dare, to give the hand, to entrust: here nothing bodily moves; what moves is the word — the order, the summons, the interpellation.

Our procedural vocabulary has quietly encoded the asymmetry. The victim who goes to court is called le demandeur — from de-mandare: the one who must demand. The wrongdoer is le défendeur — the one who waits. Meanwhile, the only debt that French public law pays spontaneously, by order, without anyone coming to fetch it, is the public expenditure, paid by mandatement — and a prefect may even order it d’office against a defaulting public body. The word for automatic payment exists. It is simply reserved.

I. The Proclamation

No one disputes the principle. Whoever, by his fault, causes damage to another is bound to repair it (art. 1240 of the Civil Code); contracts must be negotiated, formed and performed in good faith (art. 1104); the professional seller is presumed — irrebuttably — to know the defects of the thing he sells (art. 1645); a party enriched at another’s expense without cause must indemnify him (art. 1303); no one may profit from his own fraud; and reparation must be integral, neither more nor less than the damage.1 Above them all stands Article 16 of the Declaration of 1789, which does not speak of proclaiming rights but of guaranteeing them: "any society in which the guarantee of rights is not secured has no Constitution."2

Now take two cases — one private, one public — and ask what the wrongdoer owes once he knows.