Thèses soutenues

06/12/2011 Ronick RACON

Gratuity in service delivery : study of civil law

Mention : Lieu : Horaire : Directeur de thèse : Françoise Labarthe

Description of the doctoral dissertation

Heart of the tertiary sector which has major influence on modern economy, service delivery undoubtedly suffers from a lack of legal guidance. Thus, despite the impact of services on the lives of individuals, businesses and communities, the law has only limited interest in their meaning, whether paid or unpaid. In the first case, the concept is even ignored since it falls to « buffer mechanisms », contrat d’entreprise (service contract) and mandat (mandatum/mandate) in particular, to ensure the legal integration of these operations. Except for a few tremors observed in domestic law or supranational law, elements for a definition of services are rare. It therefore seemed necessary to bring out a suitable one. It is dominated by the activity and based on the latin obligation now abandoned of praestare (provide). Service delivery is matter of activity, provided for achieving a defined objective. It’s a link between people (provider – recipient), built on an object (the activity) and turned towards a fixed purpose (the result). But the legal nature of the link created is at issue when it comes to gratuity. Appreciated but suspect, at least as much feared that it is attractive, the latter has received only limited legal consideration. Give or take action without consideration has been scorned or worse, frowned upon. In the shadow of the consideration in the Civil Code, altruistic operations have had to settle for a minimum of legal exposure. While their existence on a daily basis is indisputable (assistance between people), their few common legal areas of expression have been shrunk (decline of gratuity in mandate and deposit) or are contested by the notion of interest which appears in various forms (marine rescue, entraide agricole (agricultural mutual support)). Moreover, when it comes to interest in situations of assistance (mutual aid and emergency-rescue volunteer help to others), civil law, through its jurisprudence, appears hesitant and struggles to find an appropriate response to these selfless acts.Thus, civil law must strive to change its philosophy and means. Change his view of assistance by moving from a mono-centric afterwards vision (civil liability) to a diversified a priori conception (determination of appropriate types and legal frameworks). The legislator should provide the judges original instruments, free service delivery contract and quasi-contracts, potential sources of a new balance between provider and recipient, as well as harmonious coexistence of gratuity and services in civil law.