The status of bailiff carries with it the guarantee of his activities thanks to the professional liability of the common law of the auxiliaries of justice. The breach of his obligations is provided for by rules specific to this profession. Thus, the bailiff has to engage his professional civil liability, notably in tort, which he can trigger because of his actions but also because of others, his employees.
Towards the principal, his liability is contractual and derives from the mandate contract (articles 1991 and following of the civil code) whereas it is tortious towards third parties (articles 1240 and 1241 of the civil code).
The bailiff is responsible for the execution of a legal decision, for example, by implementing all possible means to recover a debt. In case of overzealousness or lack of action, he is liable but it is up to the client to bring the proof of his lack of diligence.
This ministerial public officer is also responsible, as a drafter of documents, for errors of drafting or service for which he will then have the burden of proof.
It should be noted that in case of destruction of documents entrusted for the execution of a mission or for the service of documents, the prescription period to act is of 2 years as from the execution of the mission or the service.
The bailiff is also liable in case of violation of the tariff rules or the breach of professional secrecy.
His status also implies the respect of duties such as those :
– of information and advice ;
– of loyalty ;
– prudence and diligence;
Failure to comply with any of these duties, such as keeping silent about his actions or failing to verify certain elements justifying the execution of collection measures, may engage his professional liability.
In addition, damages may be claimed in the context of disciplinary proceedings against him.
In case of damage, it is up to the plaintiff to prove his prejudice, such as the loss of chance to recover his debt, and the causal link with the damage, in particular when the bailiff’s fault is not presumed.
The bailiff’s liability is guaranteed by his professional insurance. The bailiff’s civil liability coverage starts either at the time of the damaging event or at the time of the claim. The claimant has 5 years to act but this period is extended to 10 years according to the conditions provided for by a decree of 26 November 2004.