Glossary entry

French term or phrase:

faute collective

English translation:

collective fault

Added to glossary by Michele Fauble
Jun 17, 2021 13:26
2 yrs ago
41 viewers *
French term

faute collective

French to English Law/Patents Law (general)
Fraud trial in Luxembourg.

"Les parties AAA entendent démontrer que les représentants de BBB, au-delà de M. CCC et M. DDD, ont également commis des fautes graves au cours de la négociation du SPA, qu'il s'agit d'une faute collective avec EEE S.A. et FFF S.A. susceptible partant d'engager leur responsabilité civile in solidum."
...
"En retenant ces informations, l'ensemble des administrateurs de BBB a commis une faute collective grave ayant fait naître un préjudice démesuré dans le chef de AAA, allant bien au-delà du simple prix d'achat payé par AAA en exécution du SPA."
...
"Il a été acté, notamment dans les minutes du conseil d'administration du 20 mai 2013, que les administrateurs ont de concert commis des rétentions d'informations essentielles à AAA.
Il s'agit manifestement d'une faute collective."

Also, perhaps most helpful, "la responsabilité des dirigeants pourrait être recherchée, à titre exceptionnel, solidairement (« in solidum ») lorsqu 'ils commettent une faute commune ou collective (c'est-à-dire qu'il est impossible de distinguer les rôles de chacun) et que cette faute ait été commise dans de telles conditions d'indivisibilité que toute répartition entre les dirigeants sociaux soit impossible " (the words of a Luxembourg court).

For once, Bridge isn't too helpful with this: firstly, it suggests "collective guilt", which is obviously the wrong context, but more problematically, under faute, it keeps on about "negligence". This is clearly a case of deliberate, tortious intent, or allegations thereof. Negligence is never likely to be appropriate where the charge is one of fraud.

I have provisionally gone for "joint fault".

This is a large job, and there are many different gradations of faute: fautes graves, fautes contractuelles, fautes pénales, fautes collectives, fautes d'une extrême gravité, fautes impardonnables, fautes collectives graves, fautes d'une gravité particulière, fautes détachables ou séparables des fonctions (where the plaintiff is seeking to attach liability to individual company directors), fautes intentionnelles d'une particulière gravité, fautes grossières, fautes lourdes, etc.
Change log

Jun 28, 2021 21:19: Michele Fauble Created KOG entry

Discussion

Mpoma (asker) Jun 17, 2021:
joint enterprise? This (somewhat notorious, in the UK) legal expression just popped up in my head. I assume joint enterprise is exclusively for a criminal context. This particular case I'm doing involves both criminal and civil elements.

Proposed translations

5 hrs
Selected

collective fault

Allocation of Fault and Apportionment of Damages in Tort Actions
… compared to the collective fault of all negligent actors, …
https://www.eagle-law.com/wp-content/uploads/Paper-A.McGover...

France: French Tort Law in the Light of European Harmonization
published in 2005 by the European group on Tort Law,. 1 ... collective fault;. 79.

“each defendant's participation in the collective fault would be a cause of the damage.”
https://www.cambridge.org/core/books/proof-of-causation-in-t...


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4 KudoZ points awarded for this answer. Comment: "Went for this in the end. As I mentioned, there are a vast number of different "fautes" in this text, and using a consistent English term, particularly endorsed by Bridge, is attractive."
1 hr

jointly at fault

I basically agree with your "joint fault" (it doesn't have to be anything more complicated), but maybe try to reword it as "they were jointly at fault" or some other variation when you can, sounds more natural and idiomatic.

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Note added at 1 hr (2021-06-17 15:02:21 GMT)
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To Mpoma: yes, it doesn't seem strong enough, it seems like something out of school!

But I suppose you can be at fault for small things and for big things, indifferently.
Note from asker:
Thanks. Yes, "fault" used in this way does sound ever so slightly odd in English, but Bridge seems perfectly comfortable with it, so who am I to question The Man?
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+1
6 hrs

collective liability

Collective liability—defined as the imposition of liability on a group that may include innocent actors—is commonplace. From ancient to modern times, legislators, regulators, and courts have imposed such liability when they believe that the culprit is a member of the group. Examples of collective liability abound: from surgical teams held jointly liable for a misplaced sponge to entire families evicted from their homes for the drug-related activity of a single person under the “One Strike Rule.” Courts recognize, of course, that collective liability punishes the innocent, but they view it as a necessary evil to smoke out and punish an unknown wrongdoer in a known group.

Despite the ubiquity of collective liability regimes, they remain under-theorized and under-studied. Proponents of collective liability justify its imposition on two grounds. First, claims of deterrence suggest that the threat of collective liability incentivizes innocent actors to monitor each other and take preventative measures. The second claim is that once a harm occurs, potential liability will encourage innocent actors to share information that would identify the wrongdoer.

Source: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3601329
Peer comment(s):

agree Eliza Hall : With rephrasing, this could work. It's the same concept.
1 day 23 hrs
Thanks!
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5 hrs

act of / collective negligence for / multiple-party fault

I'd steer clear of joint enterprise that, in UK criminal law, often equates with 'joint principals ' vs. aiders + abetters of terrorist actions or serious robbery -likewise collectivr guilt as in the post-World War II idea of German 'Kollektivschuld'. A 'confederate enterprise' might also work in US criminal litigation.

Note collective negligence rather than collective mal- or misfeasance.

Faute commune: contributory negligence, Bridge, was actually my idea for this term, albeit overlaps with 'shared, apportionable blame'.

One reason for dodging 'group blame' is that 'groupie blame' would be an easy typo to make, esp. for my ex-audio-typists from Essex.

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Note added at 18 hrs (2021-06-18 08:10:07 GMT)
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asker's question: no. You are right. Negligence - in ENG law at any rate - does not, as an omission, meet the high standard of seriousness required to plead fraud in court. That is why I bracketed off the apparent term of art of 'collective negligence' wanting to switch the focus to multi-party fault or even 'mis- or malfeasance' that is more apt and apposite to company directors' lapses.
Example sentence:

USA: What if Multiple Parties are at Fault? Sometimes not just one person is at fault. You may have been negligent, and someone else may also have been negligent, making both of you at fault. So, what happens in this scenario?

Collective Negligence Are You Cyber Law Compliant?.... This interesting question was first raised by Naavi in November 2000, and highlighted in a lecture organized by CII, Chennai to a group of its members way back in July 2001.

Note from asker:
Thanks. As I said in my question, and as Allegro T also asks, is fraud really a case of negligence? Surely negligence means there is no tortious intent... I'm puzzled, maître.
Peer comment(s):

neutral mrrafe : I've never heard of "confederate enterprise" in US criminal litigation. I would drop that one. We do have conspiracies and criminal enterprises. / Funny the WhiteRose cite mentions a "landslide" court case. US has only landmark cases & landslide elections
1 hr
Yes. You are right of course, though confederates, as in US Am. fed. law - to a joint venture is still within the compass of publ. internat. law - see. p.7 https://eprints.whiterose.ac.uk/147726/1/Jogee.pdf
neutral AllegroTrans : But is the "faute" simply negligence?
2 hrs
No. It isn't. I tried to relegate the term by bracketing off.
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+2
2 hrs

joint tort/tortious act


Tort - Wikipedia
https://en.wikipedia.org › wiki › Tort
A tort, in common law jurisdiction, is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious ...
‎English tort law · ‎Outline of tort law · ‎Intentional tort · ‎Quasi-tort

People also ask
What is an example of a tort?
Common torts include:assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress. Injury to people may include emotional harm as well as physical harm.

Common Types of Torts — Judicial Education Center

A common definition is: 'Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.' ( Winfield)20 Oct 2015

The nature of tortious liability | - Law Explorer

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Note added at 20 hrs (2021-06-18 09:27:31 GMT)
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ADDENDUM:

Maybe a rearrangement of the sentence (which is a tad clunky) would be desirable. Somethiong like "... making them joint tortfeasors"
Peer comment(s):

agree SafeTex
5 hrs
thanks
agree Eliza Hall : The "in solidum" language in the FR clinches it. Civil-law in solido tort liability is equivalent to common-law joint and several tort liability.
2 days 3 hrs
thanks
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