A driver runs a red light. Should we judge him by comparing his behavior to that of an average driver, or by taking into account the fact that he was blinded by the sun at that precise moment? This is a question that judges regularly ponder. The answer depends on the mode of appreciation chosen: in abstracto or in concreto. These two methods of analysis structure a large part of French legal reasoning, from civil liability to criminal law.
In abstracto and in concreto appreciation: two methods, two reasoning logics
Before diving into the definitions, let’s take a simple example. Two neighbors are arguing about a tree. One of them, while cutting a branch, damages the other’s fence. To determine whether this person has committed a fault, the judge has two options.
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First option: compare this neighbor’s behavior to that of a reasonable person placed in the same general situation. Would a normally prudent individual have cut that branch in the same way? This is in abstracto appreciation. The reference model is a standard, a typical behavior, detached from the personal particularities of the author of the damage.
Second option: take into account the specific circumstances of this neighbor. His age, health status, gardening skills, the weather that day. This is in concreto appreciation. The judge then evaluates the actual situation, with all its particularities.
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To delve deeper into in abstracto and in concreto appreciation in a detailed legal framework, the distinction rests on the choice of the comparison model: a theoretical standard or individual reality.
Civil fault and liability: why French law favors in abstracto appreciation
In matters of civil liability, the French legal tradition primarily relies on in abstracto appreciation. The judge compares the behavior of the author of the damage to that of the “good father of the family,” a term long used in the Civil Code to refer to a reasonably prudent and diligent person.
Why this choice? Because an objective standard offers a fair treatment among litigants. If each person could invoke their personal weaknesses to escape the classification of fault, the protection of victims would be weakened.
Let’s take a concrete case. A doctor makes a diagnostic error. The judge will not ask whether this specific practitioner, given his fatigue or lack of experience, did his best. He will compare his actions to those that a normally competent and diligent doctor would have performed in the same professional circumstances. The appreciation remains in abstracto, but the reference model is adapted to the relevant professional category.
This point deserves to be emphasized: in abstracto appreciation does not mean that the context is completely ignored. The judge takes into account external circumstances (place, time, material conditions). What he excludes are the purely personal characteristics of the author (his character, emotions, individual abilities).
In concreto appreciation in criminal law: when personal circumstances matter
Criminal law illustrates well the cases where in concreto appreciation takes over. Here, the principle of legality of offenses and penalties requires a precise verification of whether a given individual has indeed committed the offense as defined by law.
You may have noticed that two people convicted for the same facts do not always receive the same sentence? This is partly because the criminal judge evaluates in concreto the specific circumstances of each defendant: their criminal history, social situation, degree of intent.
The question also arises on the victim’s side. To assess the damage suffered, the judge may adopt a in concreto appreciation of the actual loss of income. A ruling from the Nîmes Court of Appeal stated that compensation should correspond to the actual loss suffered by the victim, not to a theoretical scale. The judge looks at this person’s concrete situation, not that of an average individual.
This approach is not limited to criminal law. It is also used in contract law (to assess the good faith of a contracting party) or in intellectual property (to evaluate a risk of confusion between trademarks).
Differentiating the two methods in practice: criteria and areas of application
The boundary between the two modes of appreciation is not always clear. Here are the criteria that allow us to differentiate them:
- The reference model: in abstracto, it is an objective standard (the reasonable person, the competent professional). In concreto, it is the real person with their own characteristics.
- The elements taken into account: in abstracto, the general external circumstances. In concreto, the personal circumstances (age, health, skills, psychological state).
- The purpose: in abstracto, it better protects the victim by setting a threshold of expected behavior. In concreto allows for individualization of judgment, closer to equity on a case-by-case basis.
In practice, the judge often combines both approaches depending on the questions raised in the same dispute. He may assess the fault in abstracto, then evaluate the damage in concreto. The two methods are not exclusive of one another.
Doctrinal evolution: a distinction still refined by legal research
The distinction between in abstracto and in concreto appreciation is not fixed. Legal doctrine continues to refine it, as shown by an article by Fabrice Leduc published in Studia Prawno-Ekonomiczne in 2023. The author emphasizes that these two modes of appreciation apply to many vague notions in French law: fault, force majeure, legitimate belief, hidden defects, significant imbalance.
The debate has also shifted towards sectoral areas. In intellectual property, the question of whether a risk of confusion between two trademarks is assessed in abstracto (from the perspective of an average consumer) or in concreto (from the perspective of the actual targeted public) has direct consequences on trademark protection.
- In administrative law, the proportionality control increasingly mobilizes in concreto appreciation to adapt decisions to individual situations.
- In contract law, the method is used to analyze contractual clauses and the behavior of the parties.
- In criminal law, the tension between legality and individualization remains an active research topic, as highlighted by a thesis defended in 1999 in Bordeaux on the role of these two modes of appreciation.
These Latin expressions, while rarely appearing in the judgments themselves, remain widely utilized by doctrine and lawyers in their writings. Understanding their significance allows for a better reading of a court decision and a more effective construction of legal arguments, regardless of the area concerned.