Contractual environmental liability

This article supplements article on "Principles of environmental liability", which covers all liability regimes (criminal, administrative, civil) with the exception of contractual civil liability.

A contract is an agreement creating one or more obligations, or creating or transferring a right. A contract is usually considered to exist as soon as the two parties have agreed on the thing and the price. The notion of the parties' consent therefore comes into play, as does their mutual knowledge of the thing and the price. In the environmental field, certain types of contract have numerous applications. These include consultancy, study, expertise and technical inspection contracts, as well as design and implementation contracts. There are also contracts for the transfer and acquisition of land (soil pollution).

Contractual liability is incurred on the basis of the obligations arising from the contract. The "operative event", i.e. the event giving rise to the pollution damage, is the non-performance of the contract. One of the parties to the contract must therefore invoke the prejudice caused by the total or partial non-performance of the contract by the other party (the "cocontractor" or "debtor") in order to be able to raise this liability.

The specificity of this field is its extreme flexibility. Since contracts are the law of the parties (art. 1134 of the French Civil Code), liability criteria can be freely determined and applied by the parties, provided there is no contradiction with public policy.

There is no system of contractual liability specific to the environment. We will therefore look at the general system of contractual liability, set out in articles 1146 to 1155 of the Civil Code, and apply it more specifically to this field.