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tire d'un fait connu à un fait inconnu

Glossary entry

French term or phrase:

négligence fautive

English translation:

negligence

Added to glossary by Charles Davis
May 6, 2015 08:49
9 yrs ago
19 viewers *
French term

Négligence fautive

French to English Law/Patents Law (general)
Hi,

I'm translating a text about a law suit:

"... la réalisation de son préjudice est imputable à la négligence fautive..."

Can anyone help me with this term, as I don't think it's "gross negligence"?

Many thanks.
Proposed translations (English)
4 +2 negligence
4 (CH) negligent wrongdoing; misfeasance
3 wilful negligence
4 -2 Guilty of neglect
References
culpable negligence
Change log

May 20, 2015 04:11: Charles Davis Created KOG entry

Discussion

katiej (asker) May 6, 2015:
There are 2 companies in this case. X has a management mandate with Y, which has an account with a depositary bank. The funds entrusted by X were never returned by Y , and that is why X is suing. That is pretty much all the context I have.
katiej (asker) May 6, 2015:
Course here you go: Au fond, la société X va principalement soutenir que la réalisation de son préjudice est imputable à la négligence fautive et au défaut de vigilance de la banque dépositaire.
Nikki Scott-Despaigne May 6, 2015:
OK Katie. I have a few years' professional experience in the field of tort so I may be able to help. I don't think it is that complicated but you need to be precise, or at worst, accurate with a descriptive solution.

Could you provide the complete sentence please?
writeaway May 6, 2015:
fyi/hth http://legal-dictionary.thefreedictionary.com/Negligence (la...
katiej (asker) May 6, 2015:
Hi Nikki, sorry, no the context is British. A company is suing a bank for tortious liability as far as I understand.
Nikki Scott-Despaigne May 6, 2015:
It is not always easy to find a perfect match for legal terms, particularly between two systems which differ to the extent of French and UK law.
I note you use the term "law suit" which suggests your target reader is US? Is the context American? I ask the question as you are based in the UK.

Is this criminal or civil?

Is the context one related to employment?

Proposed translations

+2
2 hrs
Selected

negligence

Just plain old negligence, in my opinion.

Négligence fautive, in French law, is, by all the indications I can see, the minimum level of negligence for which liability can exist in law. It is short of negligence criminelle. It does not involve mens rea. The resulting liability is civil, not criminal.

"La simple négligence fautive ne constitue pas une faute d’une gravité suffisante pour être équivalente au dol"
http://109.168.120.21/siti/Unidroit/index/pdf/XI-3-0609.pdf (p. 6)

Here's an example referring to financial crime, and the degree of liability of the victim:

"Ensuite, la jurisprudence de la chambre criminelle ne s'applique qu'en cas d'infraction intentionnelle et lorsque l'on ne peut reprocher à la victime qu'une simple négligence fautive. Une infraction non intentionnelle ne suffirait plus à justifier une dérogation au principe du partage de responsabilité. De même, une faute volontaire de la victime, telle que sa participation à l'infraction, conduirait inéluctablement à justifier un partage de responsabilité"
http://www.dalloz-etudiant.fr/fileadmin/actualites/pdfs/MARS...

Here's a case in which a child playing football kicked a lump of earth into his friend's eye. The child's father's failure to exercise proper supervision was négligence fautive.
https://books.google.es/books?id=oEw4AAAAIAAJ&pg=PA187&lpg=P...

In other words, négligence fautive is conduct that simply meets the test of a breach of the care that can be expected of a reasonable person. That is, simply, negligence.

English law does not systematically distinguish between negligence and gross negligence. An English judge once said that gross negligence was simply negligence with a vituperative adjective attached. And "fautive", in any case, doesn't make it gross. Culpable negligence is a US concept and is a serious criminal offence, involving putting a person at risk of death or serious injury.

http://fr.wikipedia.org/wiki/Responsabilité_du_fait_personne...
http://en.wikipedia.org/wiki/Breach_of_duty_in_English_law
http://en.wikipedia.org/wiki/Gross_negligence#English_law

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Note added at 2 hrs (2015-05-06 10:56:00 GMT)
--------------------------------------------------

See here for culpable negligence in US law:
http://definitions.uslegal.com/c/culpable-negligence/
Peer comment(s):
agree AllegroTrans : in civil law, negligence is negligence (i.e. arising from a fault/breach)
1 hr
Thanks for confirming that, AT
agree Nikki Scott-Despaigne : Now we have more context, I agree that "negligence" is sufficient. PS. BReach of a duty of care, not a breach of care. The whole thing in EN law hangs on whether there was a duty of care owed or not. Ginger beer, snails and all that... 1932.
2 hrs
Thanks, Nikki :) Yes, breach of the duty of care was what I meant; I inadvertently elided it.
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4 KudoZ points awarded for this answer. Comment: "Selected automatically based on peer agreement."
13 mins

wilful negligence

A little more than simply mindless negligence.... i.e. the negligent person is at fault through some 'reckless' action.

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Note added at 14 mins (2015-05-06 09:03:39 GMT)
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having just read Heidi's comment, I think culpable negligence is a better translation.
Peer comment(s):
neutral Nikki Scott-Despaigne : "Culpable negligence" has no legal meaning in the UK. I believe it is a US term. "Wilful negligence" may be helpful here. However, "recklessness" is different from "wilfulness". I think this is a tricky one to find an exact equivalent for. I'm thinking...
18 mins
Thanks, Nikki. Not being any kind of legal expert I simply thought that the word culpable expressed "fautive" better than wilful.
neutral AllegroTrans : I think you are confusing criminal and civil law concepts
7 hrs
You're right. I have some knowledge of the former and little of the latter!
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-2
52 mins

Guilty of neglect

Actually, Binay is the most guilty of neglect in Mary Jane’s case. He is the Cabinet member assigned to look after the welfare of overseas Filipino workers. He failed in that because all his attention and efforts are focused on becoming president, even violating the law against premature campaigning to give way to his overweening ambition. I am sure that in his campaign speeches, Binay will claim that it was he who saved Mary Jane from the firing squad. Truth to tell, it is the credit-grabbing politicians who should be put before a firing squad.

Read more: http://opinion.inquirer.net/84561/binay-guilty-of-neglect-in...
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook
Reference:

http://opinion.inquirer.net/84561/binay-guilty-of-neglect-in-velosos-case

Peer comment(s):
disagree AllegroTrans : Nothing to do with welfare or neglect, it's a legal term in contract law
2 hrs
disagree Nikki Scott-Despaigne : Agree with AT's first sentence. However, contract law and tort together form civil obligations. Duties may be contractual but a duty of care may also arise where there is no contractual relationship. That's the whole point of tort AT . ;-) !
4 hrs
Something went wrong...
1 day 10 hrs

(CH) negligent wrongdoing; misfeasance

Not a tautology, as a wrongdoing in a number of English Common Law jurisdictions like Oz can also be innocent or non-negligent.

Also the question suggests ('management mandate' = 'discretionary > portfolio< management agreement) that the pedigree might be Swiss, Luxembourg or even Liechtentsein.

It would also be helpful to refrain from a literal, non-overlapping translation of négligence and consider whether the contrasting terms of malfeasance, nonfeasance and misfeasance apply to a banking vs. company or public officer scenario.
Example sentence:

An intentional wrongdoing also willfully violates another person's interest. A negligent wrongdoing does not require that an act is committed.

Reference:

http://en.wikipedia.org/wiki/Misfeasance

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Reference comments

12 mins
Reference:

culpable negligence

fautif
(que comete una falta) culpable
http://www.wordreference.com/fres/fautif

culpable negligence - (law) recklessly acting without reasonable caution and putting another person at risk of injury or death (or failing to do something with the same consequences)
http://www.thefreedictionary.com/culpable negligence

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Note added at 13 mins (2015-05-06 09:02:48 GMT)
--------------------------------------------------

http://dictionnaire.reverso.net/francais-espagnol/fautif
Peer comments on this reference comment:
agree writeaway : yes, many terms are easily found just by looking them up on the www.
4 mins
neutral Nikki Scott-Despaigne : This has no legal meaning whatsoever in the UK, where the Asker is based. I believe it is a US term. However, the Asker uses "law suit', a US term, so maybe the final reader is US-based.
17 mins
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