Proof of damage and loss of opportunity: the contributions of the decision of June 27, 2025.

Daria Belovetskaya

Analyses

4 minutes

12 December 2025

What should be remembered?

In its decision of June 27, 2025, Court of Cassation (Full Assembly, No. 22-21.146) Clarifies several essential points on compensation for loss of opportunity and proof of damage:

  1. The judge can and must compensate for a loss of opportunity, even if the initial claim was for full reparation. He may ask the parties to explain themselves, but cannot refuse to compensate for a proven loss of opportunity solely on the grounds that the claim did not specifically mention it (references: art. 4 Civil Code, art. 4 and 5 Code of Civil Procedure, art. 1240 Civil Code).
  2. The production of proof of expenses is not a mandatory condition to obtain compensation. The Court reminds that the compensation for a damage does not depend on the presentation of invoices, in accordance with the principle of full reparation (art. 1240 C. civ.).
  3. The judge must verify the causal link between the expenses incurred and the fault. If the expenses were necessary for the situation resulting from the damage (e.g. necessary transformation), they must be taken into account. Otherwise, the rejection of the claim is legally unfounded.

This decision unifies two already recognized principles:

  • The judge must assess a recognized prejudice in its principle.
  • The absence of a bill does not prevent compensation if the damage is real and quantifiable.
Immeubles

Indemnify without an invoice? Principle, exceptions, and insurance specifics.

01. Principle of free disposal of compensation

In common law, the victim is not required to use the compensation received to carry out the work. They can use the funds freely, unless otherwise specified. The proof of damage can be provided by any means, and the absence of an invoice does not prevent compensation if the harm is proven.

02. Exceptions to this principle

Three cases can limit free disposal:

  1. Contractual clauses: In insurance matters, a clause may provide for compensation "on invoice". However, this clause is not enforceable against the third party liable in civil liability (art. L.124-3 C. assur.).
  2. Jurisprudence in construction defects insurance (CDI): The court orders that the compensation for property damage be used for repair work. If this is not the case, the insurer may request the return of any unused funds (Article L.242-1 of the Insurance Code).
  3. Barnier Law - art. L.121-17 C. insurance This provision applies to all property insurance, but only if a municipal decree requires work. Without this decree, the insurer cannot demand restitution.

Outside of these exceptions, the absence of a bill does not prevent compensation, as long as the damage is proven and quantifiable. This is confirmed by the Plenary Assembly.

Need to know more?

Contact our Construction Director

Photo of Raphael Cerda

Raphael Cerda

Head of Construction & Energy
Photo of Raphael Cerda

Raphael Cerda

Head of Construction & Energy

With nearly 20 years of experience in construction insurance, Raphaël has held increasingly responsible positions at Bouygues Construction, Marsh, and Satec where he was head of Construction and Real Estate. He now joins Howden France to lead the development of the Construction and Energy Product Line on an international scale. Recognized for his negotiation skills and strategic vision, Raphaël will contribute to positioning Howden France as a leading player in the construction and energy insurance market.

Specific expertise: Decennial, Waterproofness, Real Estate, Large Projects

Degrees:
- MASTER Degree IAP / La Sorbonne
- MASTER Degree Insurance Law / La Sorbonne
- Executive MBA / PSL Paris Dauphine
- Executive MBA / UQAM Montreal

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