On January 1, 2025, a major shift occurred with the entry into force of the new Book 6 of the Civil Code concerning non-contractual liability. This reform, largely inspired by existing case law, introduces significant changes that may directly impact business activities, contracts, and partnerships.
Much has been written on the subject, but legal concepts are not always easy to translate into practical advice.
What should you anticipate? What adjustments are necessary to protect your business?
Here are the key developments to be aware of and the actions to take now.
1.a. A New Freedom of Action Between Contractual and Non-Contractual Liability (Article 6.3): Adjust Your Contractual Clauses
Until now, non-contractual liability was largely excluded when parties were bound by a contract (commonly referred to as the « prohibition of concurrent liability »). This is no longer systematically the case. From now on, a creditor may choose to take action based on either contractual or non-contractual liability against their contracting party.
🎯 What this means for you:
- Greater risk of business liability since it can now arise both from a contractual breach and from a failure to comply with general prudence or duty of care.
- Limitation of liability clauses may be bypassed if they are not adapted to this new legal basis, making some contracts vulnerable.
✅ Actions to take:
✔️ Update your contracts to include clauses specifying the permitted remedies – for example, by waiving Article 6.3 of the Civil Code.
✔️ Strengthen your liability exemption clauses by explicitly stating their applicability to both contractual and non-contractual matters—while keeping in mind that fraud and intentional misconduct cannot be waived.
✔️ Adjust your company’s insurance coverage to account for new possibilities of non-contractual liability.
1.b. End of Quasi-Immunity for the Executing Agent (Article 6.3): Redefine Your Recourse Strategies
From January 1, 2025, any auxiliary (formerly referred to as an « executing agent »), effectively carrying out the contract—such as a subcontractor, company director, or even an employee—can be personally held liable based on non-contractual liability for any damage caused to a third party in connection with the execution of the contract.
🎯 Implications for your business:
- Third parties can directly hold directors, subcontractors, and employees personally liable, independently of the company’s liability.
✅ Actions to take:
✔️ Update auxiliary contracts with the company to clarify liability limits and include appropriate guarantees.
✔️ Review contracts between the company and third parties to prevent excessive exposure of executives, while complying with mandatory contract law rules and public policy principles, particularly concerning fraud and intentional misconduct.
✔️ Include (partial) exemption or liability limitation clauses in contracts between the company and its contracting party, as well as between the company and its auxiliaries.
2. Non-Contractual Fault and the General Standard of Prudence (Article 6.6): Implement Compliance Processes
The concept of non-contractual fault has been redefined with new criteria. The well-known notion of the « prudent and reasonable person » is now replaced by considerations such as the state of scientific knowledge, proportionality of preventive measures, reasonably foreseeable consequences of conduct, and professional best practices.
🎯 Impact on your business:
- In the event of damage, you may have to prove that you took all reasonable precautions to avoid it, considering costs and feasibility of preventive measures.
- Innovative companies (pharmaceuticals, tech, chemicals, etc.) are particularly affected, especially if held liable for unforeseen side effects.
✅ Actions to take:
✔️ Implement a risk assessment process before making decisions affecting safety or compliance.
✔️ Define your business activities and contractual services precisely to limit the risk of being held liable for negligence.
✔️ Maintain traceability of your technological and scientific choices to prove diligence and compliance with best practices.
✔️ Train your teams on new prudence requirements and sectoral best practices.
3. Liability of Corporate Governance Bodies (Article 6.15): Secure Your Governance
From 2025, companies may be held liable for illicit acts committed by their governing bodies and their members during and in connection with their functions. However, this is no longer justified by the well-known « organ theory » (« the act of the organ = act of the legal entity ») but by the principle of vicarious liability, which requires repairing harm caused by those for whom one is responsible.
🎯 Implications for your business:
- The company’s liability may be engaged even in the absence of direct fault or direct act giving rise to liability —it is referred to as « strict liability. » This liability may arise from acts committed solely by its governing bodies. It is important to note that a different regime applies to acts of other bodies, such as the general assembly.
✅ Actions to take:
✔️ Optimize internal control mechanisms: Implement or strengthen monitoring and audit systems for decisions made by governance bodies to prevent misconduct.
✔️ Document governance policies rigorously: Establish clear and updated procedures, ensuring that all strategic decisions are well-documented to demonstrate diligence and compliance.
✔️ Train your executives and directors on new legal obligations, associated risks, and best practices in management and governance.
4. A More Flexible Causal Link (Article 6.18): A New Defense Strategy
The legislator now allows judges to dismiss a causal link if it appears too tenuous between the fault and the damage.
🎯 Opportunities for your business:
- You can more easily contest abusive claims when your involvement in damage is minimal.
- This could limit liability claims for indirect damages in sectors like healthcare and finance.
✅ Actions to take:
✔️ Keep meticulous records of incidents to demonstrate minimal involvement in case of litigation.
✔️ Adjust contracts with third parties to reinforce the absence of liability in cases of distant causal links, for example, by stipulating that liability will only be engaged if a sufficiently direct and obvious connection is established.
✔️ Anticipate this defense in your legal strategies, particularly for ongoing litigation cases.
5. Compensation for Loss of Opportunity (Article 6.22): An Increased Compensation Risk
Book 6 introduces a proportional causality approach for loss of opportunity, facilitating victim compensation. Even if the causal link is uncertain, the victim can obtain partial compensation based on the probability that the fault actually caused the loss.
🎯 Risks for your business:
- You could be held liable even if the damage is not directly proven but only probable.
- This particularly affects medical, legal, and financial sectors where loss of opportunity claims are common.
✅ Actions to take:
✔️ Strengthen your evidence and contractual documents to limit exposure to such claims.
✔️ Clarify liability clauses to frame and limit the concept of loss of opportunity.
6. Proportional Liability in Cases of Multiple Causes (Article 6.23): A New Risk-Sharing Approach
If multiple companies are likely to have caused damage, they may be held proportionally liable, even if the exact cause is unidentified.
🎯 Consequences for you:
- Your company could be involved even in the absence of formal proof, increasing your legal risk.
- This principle particularly applies in industries involving multiple where multiple actors are involved in the same product or service (e.g., pharmaceuticals industry, construction).
✅ Actions to take:
✔️ Strengthen your liability clauses with your partners, by specifying each party’s obligations.
✔️ Conduct internal audits to identify and limit exposure to risks linked to multiple causes.
Partner THALES Lawyers – Distribution and consumer protection
Associate THALES Lawyers – Distribution and consumer protection
