Between Autonomy and Protection: A Critical Assessment of Exclusion Clauses in Tort Law Under the French Draft Civil Liability Reform

This paper critically examines the proposed reform of non-contractual civil liability in French law, with a particular focus on the validity of liability-exclusion and limitation clauses. While the draft legislation (2019–2020) marks a significant shift by recognizing the general validity of such clauses under Article 1284, it simultaneously imposes strict limitations, rendering them void in cases of bodily harm (Art. 1284) or fault (Art. 1286). The analysis reveals a fundamental tension between the reform’s aim of promoting contractual autonomy and its adherence to traditional public policy principles protecting individual rights. Through a comparative assessment with the English model, particularly the Unfair Contract Terms Act 1977, and reference to German law’s proportionality-based approach, the paper argues that the French draft adopts an overly rigid framework that undermines the practical effectiveness of its innovation. The near-total prohibition in cases of fault or physical injury effectively confines the application of exclusion clauses to a marginal scope, thereby reducing their recognition to a formal gesture rather than a functional legal tool. The paper concludes with a proposal to consolidate Articles 1284 and 1286 into a single provision that upholds the principle of validity while allowing judicial review based on reasonableness and proportionality, thus achieving a more balanced and adaptable regime in line with modern commercial and ethical demands.