Magic A Tutoring Comm 315

COMM 315
FINAL NOTES

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Weeks 10 & 11
Contract law
I – WHAT IS A CONTRACT?
An agreement of wills: CCQ 1378
1378. A contract is an agreement of wills by which one or several persons obligate themselves to
one or several other persons to perform a prestation.
Contracts may be divided into contracts of adhesion and contracts by mutual agreement,
synallagmatic and unilateral contracts, onerous and gratuitous contracts, commutative and
aleatory contracts, and contracts of instantaneous performance or of successive performance;
they may also be consumer contracts .
§
An agreement of wills between two or more parties.
Good faith: CCQ 1375
1375. The parties shall conduct themselves in good faith both at the time the obligation is created
and at the time it is performed or extinguished.
§
The parties have a duty to act in good faith both during and after the performance of the
prestation.
Onerous vs. gratuitous: CCQ 1381
1381 . A contract is onerous when each party obtains an advantage in return for his obligation.
When one party obligates himself to the other for the benefit of the latter without obtaining any
advantage in return, the contract is gratuitous.
§
An onerous contract is where both parties have to do something.
§

Ex. I agree to buy your water bottle for $0.50. I have to pay you; you have to give me the water
bottle.
§
Gratuitous contract is a gift; where one of the parties doesn’t have to do anything.
§

Ex. I give you my water bottle.
Instantaneous vs. successive performance: CCQ 1383
1383 . Where the circumstances do not preclude the performance of the obligations of the parties
at one single time, the contract is a contract of instantaneous performance.
Where the circumstances absolutely require that the obligations be performed at several different
times or without interruption, the contract is a contract of successive performance.
§
Instantaneous: happens right away, like a contract of sale.
§
Successive performance happens over time, like a lease or employment contract.
Oral vs. written contracts
§
The law does not make a distinction between either.

II – FORMATION OF CONTRACTS
Ø
OFFER

Essential elements: CCQ 1388
1388 . An offer to contract is a proposal which contains all the essential elements of the proposed
contract and in which the offeror signifies his willingness to be bound if it is accepted.
§
The offer to contract must include all essential elements (e.g. what is being sold and what is the
price). To have a valid offer, you must have agreed on all essential items.

Determinate vs. indeterminate: CCQ 1390
1390. An offer to contract may be made to a determinate or an indeterminate person, and a term
for acceptance may or may not be attached to it.
Where a term is attached, the offer may not be revoked before the term expires; if none is
attached, the offer may be revoked at any time before acceptance is received by the offeror.
§
Determinate person: I will buy a pen from you, specifically
§
Indeterminate person: In class, I come in and ask “Who wants to buy my pen”. I don’t care who
buys it.

Invitation to treat (i.e. newspaper ad)
A newspaper ad is not considered an offer; it is considered an invitation to treat.
Term: CCQ 1390
1390. An offer to contract may be made to a determinate or an indeterminate person, and a term
for acceptance may or may not be attached to it.
Where a term is attached, the offer may not be revoked before the term expires; if none is
attached, the offer may be revoked at any time before acceptance is received by the offeror.
§

Ex . You can buy this bottle of water for $0.50 but you have 30 min. to decide. The person making
this offer cannot revoke it for the next 30 min. However, if no term is specified, you can revoke
your offer at anytime before someone accepts it.

Lapses: CCQ 1392
1392 . An offer lapses
(becomes invalid) if no acceptance is received by the offeror before the
expiry of the specified term or, where no term is specified, before the expiry of a reasonable
time; it also lapses in respect of the offeree if he has rejected it.
§
If a specific term exists, the offer becomes invalid once the term is reached and the offeror hasn’t
received any acceptance.
§
If no specific term exists, the offer becomes invalid after a reasonable time and the offeror hasn’t
received any acceptance.
§
The offer also becomes invalid to the offeree who has rejected it.

Ø
ACCEPTANCE

Express or tacit: CCQ 1386
1386. The exchange of consents is accomplished by the express or tacit manifestation of the will
of a person to accept an offer to contract made to him by another person.
§
The acceptance of an offer to contract may be tacit or express:
o Tacit: implied by the acts of the person
o Ex. Handing the bottle to the person.
o Express: written or verbal

Counter offer: CCQ 1393
1393. Acceptance which does not correspond substantially to the offer or which is received by
the offeror after the offer has lapsed does not constitute acceptance.
It may, however, constitute a new offer.
§

Ex. I won’t sell it to you for $0.50, but I can do it for $2.00. This constitutes a new offer.

Silence: CCQ 1394
1394. Silence does not imply acceptance of an offer, subject only to the will of the parties, the
law or special circumstances, such as usage or a prior business relationship.
§
Silence on its own means no acceptance.

III – VALIDITY OF CONTRACTS
Ø
FOUR ELEMENTS: CCQ 1385
1385 . A contract is formed by the sole exchange of consents between persons having capacity to
contract, unless, in addition, the law requires a particular form to be respected as a necessary
condition of its formation, or unless the parties require the contract to take the form of a solemn
agreement.
It is also of the essence of a contract that it have a cause
and an object
.
§
A valid contract requires 4 elements: Capacity + Cause + Object + Consent + (Form)
th
§
In some cases, the validity of the contract may require a 5 element: particular form.
§

Ex. Marriage agreement must be done by notarial deed. This form consists of a special
physical design, without which the contract is void. A residential lease must be done on
the Régie forms.

Capacity: CCQ 1398
1398. Consent may be given only by a person who, at the time of manifesting such consent,
either expressly or tacitly, is capable of binding himself.
§
For capacity to be valid when it is manifested, the person must be i) over the age of 18; and 2)
of sound mind.

Cause: CCQ 1411
1411. A contract whose cause is prohibited by law or contrary to public order is null.
§ “Cause and object”: What you do and what you get has to be valid.
§
Ex
. A contract where one party agrees to sell illegal narcotics cannot be enforced in court
because it against public order. Such a contract is null.

Object: CCQ 1413

1413. A contract whose object is prohibited by law or contrary to public order is null.

Consent: CCQ 1399

1399. Consent may be given only in a free and enlightened manner.
It may be vitiated by error, fear or lesion.

§
For consent to be valid, it has to be given freely, i.e. willingly.
§ ***Consent may be vitiated/invalidated by a) honest error; b) fraud; c) fear; d) lesion

1.

Error: CCQ 1400
1400. Error vitiates consent of the parties or of one of them where it relates to the nature of the
contract, the object of the prestation or anything that was essential in determining that consent.
An inexcusable error does not constitute a defect of consent.

Honest error à vitiates consent
§

Ex: You go to Sears to buy a sterling silver necklace. The clerk looks in the
counter and sees the tag on it that says “sterling silver”. When you go home,
you see it says “plated”. Clearly, this is an honest error – the clerk wasn’t
trying to rip you off; the wrong tag was on the wrong item. No one was doing
anything deceitful, it was an honest error.

Inexcusable error à does not vitiate consent
§
Ex You go to a souvenir store in the old port. You buy a little terra cotta horse
statue for $19. You think “wow, what a great price, those are worth $2000.”
When you get home, you see underneath it reads “Made in USA”. You go
back to the store and say “I want my money back, I thought it was antique”.
That’s an inexcusable error because you bought it in a souvenir shop, it was
stupid of you to even think it was an antique. You will not get your money
back.

2.

Fraud: CCQ 1401 à
vitiates consent
1401. Error on the part of one party induced by fraud committed by the other party or
with his knowledge vitiates consent whenever, but for that error, the party would not have
contracted, or would have contracted on different terms.
Fraud may result from silence or concealment.
§ Misrepresentation is another word for fraud. Had you known the truth you
would not have bought it or have paid the same price.
§ You have to show that you did not know better; burden of proof is on buyer –
buyer beware.

3.

Fear: CCQ 1402, CCQ 1403 à vitiates consent
1402. Fear of serious injury to the person or property of one of the parties vitiates consent
given by that party where the fear is induced by violence or threats exerted or made by or
known to the other party.
Apprehended injury may also relate to another person or his property and is appraised
according to the circumstances.
§
Ex. Sell me your Blackberry or I will punch you in the face. Clearly, consent is
not valid.
1403. Fear induced by the abusive exercise of a right or power or by the threat of such
exercise vitiates consent.
§
Ex. Family pressure, employer saying do this or I will fire you.

4.

Lesion: CCQ 1405, CCQ 1406
1405. Except in the cases expressly provided by law, lesion vitiates consent only in
respect of minors and persons of full age under protective supervision.
§ Lesion is a defense only applicable to minors or people over 18 who are under
curatorship.
1406 . Lesion results from the exploitation of one of the parties by the other, which
creates a serious disproportion between the prestations of the parties; the fact that there is
a serious disproportion creates a presumption of exploitation.
In cases involving a minor or a protected person of full age, lesion may also result from
an obligation that is considered to be excessive in view of the patrimonial situation of the
person, the advantages he gains from the contract and the general circumstances.
§
A serious disproportion between obligations of the parties e.g. you are 17 and
bought a car and paid too much for it. Merchants beware.

Invalid consent: CCQ 1407
1407. A person whose consent is vitiated has the right to apply for annulment of the contract; in
the case of error occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also
claim damages or, where he prefers that the contract be maintained, apply for a reduction of his
obligation equivalent to the damages he would be justified in claiming.
§
When there is error, fraud, fear or lesion, your consent is vitiated, you can apply for annulment
AND claim damages (because bad faith). In case of honest error, no damages because no bad
faith.

IV – CONTRACT THAT IS NULL: CCQ 1422
1422. A contract that is null is deemed never to have existed.
Nullity vs. Cancellation
§
Null: Deem never to have existed. Therefore you return what you got and get back what you gave.
If you can’t return the item, then you can’t annul the contract.

V – SPECIAL RULES
Adhesion contract: CCQ 1379
1379. A contract of adhesion is a contract in which the essential stipulations were imposed or
drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.
Any contract that is not a contract of adhesion is a contract by mutual agreement.
§
A contract where the stronger party dictates the terms and the weaker party accepts the term.
§

Ex. Employment contract, bank accounts, insurance contract, airline tickets
Consumer contract: CCQ 1384
1384. A consumer contract is a contract whose field of application is delimited by legislation
respecting consumer protection whereby one of the parties, being a natural person, the consumer,
acquires, leases, borrows or obtains in any other manner, for personal, family or domestic
purposes, property or services from the other party, who offers such property and services as part
of an enterprise which he carries on.
§
Contract between consumer and merchant where the consumer buys for personal, nonbusiness
use, from a professional seller. Consumer Protection Act applies.
Interpretation: CCQ 1432***
1432. In case of doubt, a contract is interpreted in favour of the person who contracted the
obligation (weaker party) and against the person who stipulated it (stronger party).
In all cases, it
is interpreted in favour of the adhering party (for adhesion contract) or the consumer (for
consumer contract).
§
You interpret in favor of the weaker party. The courts have recognized the fact that there is
unequal bargaining power, thus the clause in interpreted in favor of the weaker party.
Illegible: CCQ 1436***
1436. In a consumer contract or a contract of adhesion, a clause which is illegible or
incomprehensible to a reasonable person is null
if the consumer or the adhering party
suffers injury therefrom, unless
the other party proves that an adequate explanation of the
nature and scope of the clause was given to the consumer or adhering party.
§
If it’s illegible it’s null unless the stronger party was aware of the problem and explained it to the
weaker party.
Abusive: CCQ 1437***
1437. An abusive clause in a consumer contract or contract of adhesion is null, or the
obligation arising from it may be reduced.
§
A clause which departs from the fundamental obligation of the contract.
§

Ex. If you miss your first payment, your other payments will go up 40%

VI – BREACH OF CONTRACT: CCQ 1590
1590. An obligation confers on the creditor the right to demand that the obligation be performed
in full, properly and without delay.
Where the debtor fails to perform his obligation without justification on his part and he is in
default, the creditor may, without prejudice to his right to the performance of the obligation in
whole or in part by equivalence ,
(1) force specific performance of the obligation;
(2) obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or
the reduction of his own correlative obligation;
(3) take any other measure provided by law to enforce his right to the performance of the
obligation.
§

Ex. Specific performance of the obligation = injunction. I make you go through with the sale of
the house; I prevent you from going to start a competing enterprise where you have undertaken
the sale of a business not to compete. An injunction is to stop you where you’ve already started,
to make you do something where you don’t want to do it or to prevent you to do something
where you about to do it.
§

Ex. (Reduction of the obligation): We sign a contract where you will sell me 250 pairs of shoes
and I will give you $250. You only send me 200. Therefore, my obligation could be reduced to
paying you $200.
§

Ex. (Performance by equivalence, see CCQ 1602)
Performance by equivalence: CCQ 1602
1602. In case of default, the creditor may perform the obligation or cause it to be performed at
the expense of the debtor.
A creditor wishing to avail himself of this right shall so notify the debtor in the judicial or
extrajudicial demand by which he puts him in default, except in cases where the debtor is in
default by operation of law or by the terms of the contract itself.
§

Ex. I hired you in February to paint my house. Wednesday rolls around and you’re not there to
paint my house; you say you’re too busy. I cannot force you to paint my house and I probably
wouldn’t want him to be forced by the court to paint my house. By equivalence, I ask someone
else to paint my house and it will cost me $2200. I can sue the original painter for the difference
in price.
Specific performance (injunction: to do, to stop, to prevent): CCQ 1601
1601. A creditor may, in cases which admit of it
, demand that the debtor be forced to make
specific performance of the obligation.
§
Courts will usually allow injunctions for most types of contracts except personal contracts.
Interlocutory injunction
During the life of the trial.
Permanent injunction
Part of the final judgment of the case

Resolution (nullity): CCQ 1606
1606 . A contract which is resolved is deemed never to have existed; each party is, in such a case,
bound to restore to the other the prestations he has already received.
A contract which is resiliated ceases to exist, but only for the future.
§
Resolution = nullity
§

Ex. Where the consent was viciated
Resiliation (cancelation): CCQ 1606
1606. A contract which is resolved is deemed never to have existed; each party is, in such a case,
bound to restore to the other the prestations he has already received.
A contract which is resiliated ceases to exist, but only for the future.
§
Resiliation = cancellation
§

Ex. A contract where you were not paid after having sold the item.
Reduction of obligations
§
Partial performance
§

Ex. 125 pairs of shoes vs. 125 left feet alone.
Other measures (i.e. seizures)
§
Seizure before judgment
*** If the contract has been breached, you want performance by equivalence, performance of the
obligation, resolution, nullity, etc AND DAMAGES (bodily, moral, material).

VII – CONTRACTUAL DAMAGES: CCQ 1458, CCQ 1607, CCQ 1611
1458. Every person has a duty to honour his contractual undertakings.
Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the
other contracting party and is liable to reparation for the injury; neither he nor the other party
may in such a case avoid the rules governing contractual liability by opting for rules that would
be more favourable to them.
1607. The creditor is entitled to damages for bodily, moral or material injury which is an
immediate and direct consequence of the debtor's default.
§ The creditor is the person who expects an obligation to be performed. The person who is in breach
under the contract is the debtor. Damages have to be direct and immediate.
§ Ex. If I don’t pay you the $300 I owe you for the bicycle, I can claim the money for I spent to
send you that registered letter but I cant’ claim peaceful enjoyment I would have had, had I still
had $300 to sign up on Lavalife.
1611. The damages due to the creditor compensate for the amount of the loss he has sustained
and the profit of which he has been deprived.
Future injury which is certain and able to be assessed is taken into account in awarding damages.
§
If you can show that there is a loss in profit, you can claim that.

VIII – PUNITIVE DAMAGES (if specific law allows): CCQ 1621
1621. Where the awarding of punitive damages is provided for by law, the amount of such
damages may not exceed what is sufficient to fulfil their preventive purpose.
Punitive damages are assessed in the light of all the appropriate circumstances, in particular the
gravity of the debtor's fault, his patrimonial situation, the extent of the reparation for which he is
already liable to the creditor and, where such is the case, the fact that the payment of the
damages is wholly or partly assumed by a third person.
§
Purpose is to prevent and punish.

IX – PENAL CLAUSE (liquidated damages): CCQ 1622, CCQ 1623
§ A penal clause is where the parties have agreed in advance as to what their damages will be if
there is a breach. These clauses are often seen in construction contracts e.g. “For every day that
you are late to finish the job, you will pay the home owner X amount of dollars”. The nice thing
is you don’t have to prove the damages because it is in the contract. However, the courts do have
the power to reduce the amount of the damages if they want to. Two types of penal clause
1) If you breach, you pay the penalty and walk away; you don’t finish the obligation
2) if you breach, you pay the penalty every day and continue working
1622. A penal clause is one by which the parties assess the anticipated damages by stipulating
that the debtor will suffer a penalty if he fails to perform his obligation.
A creditor has the right to avail himself of a penal clause instead of enforcing, in cases which
admit of it, the specific performance of the obligation; but in no case may he exact both the
performance and the penalty, unless the penalty has been stipulated for mere delay in the
performance of the obligation.
1623. A creditor who avails himself of a penal clause is entitled to the amount of the stipulated
penalty without having to prove the injury he has suffered.
However, the amount of the stipulated penalty may be reduced if the creditor has benefited from
partial performance of the obligation or if the clause is abusive.
§

Ex. The general contractor is one day late for finishing the house. However, the day you were
supposed to have occupancy, everything was done except the lawn and painting the driveway.
Here, the amount the person may sue for may be reduced because the homeowner could still live
in the house.

– CASES
CASE 1 Giroux v. Malik
Legal issue
§
Fraud (CCQ 1401); Bad faith (CCQ 1375); Invalid consent
1401. Error on the part of one party induced by fraud committed by the other party or with his
knowledge vitiates consent whenever, but for that error, the party would not have contracted, or
would have contracted on different terms.
Fraud may result from silence or concealment.
1375. The parties shall conduct themselves in good faith both at the time the obligation is
created and at the time it is performed or extinguished.
1407. A person whose consent is vitiated has the right to apply for annulment of the
contract; in the case of error occasioned by fraud, of fear or of lesion, he may, in addition
to annulment, also claim damages or, where he prefers that the contract be maintained,
apply for a reduction of his obligation equivalent to the damages he would be justified in
claiming.
Legal Parties
§
Giroux, Plaintif
§
Malik, Defendant
Facts/Decision
§
Giroux is interested in buying a piece of land from Malik where he plans to build a house. Giroux,
with no lawyer to represent him, relies solely on Malik. In December, both of them go to a
notary to get things in order. Later, Giroux goes to city hall to get a permit to build the house.
However, city halls tells him he cannot build on the land because he cannot build a septic tank on
it – information that Malik had never revealed.
o
CCQ 1375: Good faith is presumed. In the court’s opinion, the fact that Malik
knew of (the problem) and did not reveal its existence to Giroux is evidence of his
bad faith.
§
Malik knew very well that Giroux would not be able to build on the land. He had even tried to sell
the land before, on two occasions. The buyer, Giroux, didn’t have a clue what was going on. As
soon as he signed the papers, he sold his house. Giroux sues for damages of $45000 he had spent
for the land and $10,000 for moral damages.
§
Decision: The court finds that there has been error (induced by fraud) on the part of Malik, which
has vitiated Giroux’s consent. Consequently, the court, applying CCQ 1407:
à
1) Annuls the contract Malik must pay back Giroux the $45,000 he had paid for the
land;
2) Awards Giroux moral damages of $10,000
§
Something very special about this case is that the court is ordering Malik to pay right now
notwithstanding appeal.

CASE 2 Peter v. Fiasche
Legal issue
§
Inexcusable error (CCQ 1400); Absence of a valid cause (CCQ 1411)
1400. Error vitiates consent of the parties or of one of them where it relates to the nature
of the contract, the object of the prestation or anything that was essential in determining
that consent.
An inexcusable error does not constitute a defect of consent .
1411. A contract whose cause is prohibited by law or
contrary to public order is
null
.
Legal Parties
§
Peter (aka Gucciardo), Plaintiff
§
Fiasche, Defendant
Facts/Decision
§
The court must determine determine between:
à
o Fraud on the part of Fiasche? Contract would be void for vitiated consent
o Inexcusable error on the part of Peter?
à Contract would be void for absence of
valid cause
§ Fiasche is an entrepreneur who owns a smoked meat restaurant kiosk in a market. Mr. Peter, a
long time friend of his, was about to lose his job and didn’t know what to do. Fiasche, who
seems to be doing very well talks to Mr. and Mrs. Peter and suggests they buy his flagship
restaurant (Gino’s Smokey) – the couple is very interested. Fiasche is asking for $250,000 for the
business and gives them the financial statements: the restaurant is generating $172,000 every
year but losing about $6,000. When Mr. and Mrs. Peters ask him why they should pay money for
something that is losing money, Fiasche tells them he has a “special accounting system” – and is
really making $125,000 in profit. He tells that that after two years of operation, they will have
paid off the purchase price of $250,000. The couple makes an offer of $200,000 and Fiasche
agrees to this purchase price. After three months, Revenu Quebec comes in and ceases the
everything. The assets are taken away from them.
§ Problem: Mr. and Mrs. Peters are alleging fraud. However, they knew all about it. There is no
fraud – they voluntarily participated in the scheme. They even put the business in her name
because Mr. Peter wanted to get government insurance and defraud the government. There is no
fraud. It is certainly an error but it is inexcusable. No one would have bought it and the only
reason they bought it is because of tax evasion reason.
§
Decision:
o CCQ 1411: The cause of the contract (intent to defraud the government through
à
tax evasion) is contrary to public order = inexcusable error contract is null
o CCQ 1422: Since contract is deemed never to have existed
à The Peters are
entitled to get back only the original amount they paid, no damages,

CASE 3 Carrefour Langelier v. Cineplex Odeon
Legal issue
§

Specific performance (injunction: to do, to stop, to prevent): CCQ 1601
1601.
A creditor may, in cases which admit of it, demand that the debtor be forced to
make specific performance of the obligation .
Legal Parties
§
Landlord: Carrefour Langelier, Plaintiff
§
Tenant: Cineplex Odeon, Defendant
Facts/Decision
§
Carrefour Langelier built and leased a cinema complex to Cineplex Odeon. However, before
Cineplex Odeon moved in, it decided to sublease the complex to Guzzo. The landlord makes
them sign contracts stating that Guzzo shall operate under the Cineplex Odeon banners, and that
Cineplex Odeon would book all movies shown at the cinema for Guzzo.
§
After a year of operation, Guzzo removes all Cineplex banners, and installs Guzzo signs
everywhere. The landlord is upset and sues, demanding a permanent injunction: he wants the
agreement contract to be in effect under a specific performance obligation, where Guzzo will
operate under a Cineplex Odeon.
§
In its defense, Guzzo appears for sections 1401, 1402, 1403, and 1404:
o Guzzo states that Carrefour Langelier made it sign agreements by telling Guzzo it
had already promised other tenants and customers that a Cineplex Odeon would
be built. According to Guzzo, such assertions were false and consisted of
misrepresentation/fraud (CCQ 1401) à Judge: That does not constitute fraud.
o Guzzo states that it signed the agreements by fear of losing business (CCQ 1402)
à Judge: that this is a subjective fear that all other entrepreneurs have.
o Guzzo states that Cineplex Odeon is a large competitor, and that refusing to sign
would start a conflict (CCQ 1403) à Judge: no proof.
o Guzzo states that it was a victim of lesion (CCQ 1404) à
Judge: Lesion applies to
minors and people under a regime of protection; not businesses.
§
Decision: Guzzo is to operate under the Cineplex Odeon banner (under a specific performance
obligation)
NB: 4 cases which do not allow for specific performance of an obligation:
1)

When the obligation has become impossible to perform
You can get your money back + damages, but not the specific performance of the obligation

2)

When the time in which to perform the obligation has elapsed
st
Ex. You pay Celine Dion to sing at the Bell Center on Jan. 1 2009 at 7PM. However, the time
has elapsed because she missed a pane and didn’t show up. You can get your money back +
damages but not specific performance of the obligation

3)

When property has perished
Ex . an import/export ship sinks

4)

When property has left the patrimony
Ex. you send the description and price of a car you are trying to sell to Person B. By the time
Person B replies, you sold the car to Person A. The car is no longer in your patrimony.
Therefore, person B can obtain damages but not specific performance of the obligation.

CASE 4 Copiscope v. TRM copy cernters
Legal issue :
§
Adhesion contract; Excessive noncompetition clause between two businesses; Injunction
Legal parties
§
Copiscope, Defendant
§
TRM, Plaintiff
Facts/Decision
§ TMR Copy is in the business of offering photocopy services to the public by means of photocopy
machines which are places in stores such as pharmacies and convenience stores. TMR installed
its photocopy machines in approximately 700 locations. Before doing so, a contract was to be
signed by the business operator. A noncompetition clause was present and stated that the
business operator may not deal directly or indirectly with anyone or any company connected
with the business of making photocopy equipment available for use by the public for a period of
1 year, within a 25mile radius from the business location.
§ Copiscope, who is also in the photocopy business, persuaded business operators to terminate their
contract with TMR Copy and enter into an agreement with Copiscope. TMR is now suing
Copiscope for an interlocutory injunction in order to stop it from taking over its business.
§ The Court concluded that the noncompetition convenant was manifestly unreasonable and
therefore invalid. TMR has not established an apparent/clear right, which is necessary for the
granting of an interlocutory injunction. Also, there is no evidence that the business operator has
knowledge of any trade secrets. Its sole role is that of ascertaining that the machine has a supply
of paper and ink and collecting the fee for its use. Furthermore, the contract signed by business
operators to TMR Copy was a contract of adhesion.
§ Decision: Motion for interlocutory injunction dismissed
à Copiscope can carry on with its
business because the noncompetition clause is abusive and TMR Copy has not established an
apparent right (which is necessary for the granting of an interlocutory injunction).

WEEK 12,13
LIABILITY, LIMITATIONS OF LIABILITY AND PRODUCT SAFETY
I. CIVIL LIABILITY
§
Civil liability is when you breach your duty in a noncontractual situation.
Duty not to injure: CCQ 1457
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to
the circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes
to another person by such fault and is liable to reparation for the injury, whether it be bodily,
moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of
another person or by the act of things in his custody.
§
Age to be “endowed with reason” is about 7 years old.
§
Liability for injury caused to another = vicarious liability
§
Equation of civil liability:
Endowed with reason + Cause + Damages = Civil liability
(direct and immediate) (bodily/moral/material)
§

Ex. A pyrotechnician gives a firework show. At the end of the show, he leaves fireworks on the
ground and, instead of picking them up, leaves them there. A child finds them and brings them
home to his father. His father lights up the fireworks and blows up his son’s arm. In this case, the
father is responsible for the accident because he was the direct and immediate cause of the
damage (i.e. arm loss).
Examples of Vicarious Liability
Parental authority: CCQ 1459
1459 . A person having parental authority is liable to reparation for injury caused to another by
the act or fault of the minor under his authority, unless he proves that he himself did not commit
any fault with regard to the custody, supervision or education of the minor.
§
Parents are liable to compensate for injury caused by their minor, unless they can prove they
provided good supervision and education of the minor.
Custody of minor: CCQ 1460
1460. A person who, without having parental authority, is entrusted, by delegation or otherwise,
with the custody, supervision or education of a minor is liable, in the same manner as the person
having parental authority, to reparation for injury caused by the act or fault of the minor.
Where he is acting gratuitously or for reward, however, he is not liable unless it is proved that he
has committed a fault.
§
A person who does not have parental authority but has custody has the same liability.
§

Ex . teachers; babysitter

Tutor or curator: CCQ 1461
1461 . Any person who, as tutor or curator or in any other quality, has custody of a person of full
age who is not endowed with reason, is not liable to reparation for injury caused by any act of the
person of full age, except where he is himself guilty of a deliberate or gross fault in exercising
custody.
§
Tutors or curators of an adult who is not endowed with reason is NOT liable. Only liable if there
is deliberate or gross fault in exercising custody.
§

Ex. You are in charge of taking care of a mentally disabled person. Your job is to bring him/her
down the street for a stroll every day (volunteer work). One day, a car pulls over asking for
directions. You take two brief seconds to help him. While you turned around to help the car
driver, the disabled person walked away and hit a random man on the face. In this case, you were
not at fault because you were helping someone. However, if you start talking to your best friend
on your cell phone and omit the disabled person, you will be held liable. You did not perform
your duty and carelessly left him/her alone.
Liability of employer: CCQ 1463
1463 . The principal is liable to reparation for injury caused by the fault of his agents and servants
in the performance of their duties; nevertheless, he retains his recourses against them.
§
When you are in the performance of your work, your employer will be responsible for damages
you cause.
Custody of a thing: CCQ 1465
1465 . A person entrusted with the custody of a thing is liable to reparation for injury resulting
from the autonomous act of the thing, unless he proves that he is not at fault.
§

Ex. Your driveway is very steep. You park your manual car and omit to put the handbrake on. The
car rolls back down the street and hurts a passerby. In this case, you are responsible for injuries
caused by the car. However, if you park the car and the transmission fails, you are not liable.
§

Ex.

You have a dead tree on your lawn. You neighbor tells you to cut it down because it is dead –
you refuse to do so. During the night, the dead tree falls on your neighbor’s pool and breaks it.
You are therefore held liable for the damages caused by the dead tree.
Owner of animal: CCQ 1466
1466. The owner of an animal is liable to reparation for injury it has caused, whether the animal
was under his custody or that of a third person, or had strayed or escaped.
A person making use of the animal is, together with the owner, also liable during that time.
§

Ex. You are walking the dog and it runs away and bites someone, you are liable.
Ruin of an immovable: CCQ 1467
1467 . The owner of an immovable, without prejudice to his liability as custodian, is liable to
reparation for injury caused by its ruin, even partial, where this has resulted from lack of repair
or from a defect of construction.
§
Immovable = land and manmade constructions attached thereto.
§

Ex. You are the owner of an apartment building. If snow falls off the roof and injures a passerby,
you are responsible.
§
Ex. You are the owner of an apartment building. If a balcony falls off (or any other damage that
may result from lack of proper maintenance), you are responsible.

Three types of fault :
1. Intentional: Shown that I intended to hit you
2. Simple negligence: Breach your duty to be careful. You’re running on the bus and push
someone out of the way. While talking on the phone, you don’t look at where you are going and
bump into someone.
3. Gross negligence or gross carelessness: I didn’t intend to hit you but did because I acted
carelessly.

II. PRODUCT LIABILITY
Manufacturer’s liability: CCQ 1468***
1468. The manufacturer of a movable property is liable to reparation for injury caused to a third
person by reason of a safety defect in the thing, even if it is incorporated with or placed in an
immovable for the service or operation of the immovable.
The same rule applies to a person who distributes the thing under his name or as his own and to
any supplier of the thing, whether a wholesaler or a retailer and whether or not he imported the
thing.
distributor, wholesaler, retailer
§
Manufacturer’s liability applies to the retailer as well. All are liable for a “safety defect”.
Safety defect: CCQ 1469***
1469. A thing (or product)
has a safety defect where, having regard to all the circumstances, it
does not afford the safety which a person is normally entitled to expect, particularly by reason of
a defect in the design or manufacture of the thing, poor preservation or presentation of the thing,
or the lack of sufficient indications as to the risks and dangers it involves or as to safety
precautions.
§
Ex. I buy a toaster and it ends up catching fire. As a result, my whole kitchen ends up catching on
fire as well. I can ultimately sue everyone in the chain (i.e. retailer, manufacturer, importer). All
liable bodies should have known about the defect.
§
If a product does not have the safety pictograms on it, it is deemed a safety defect.
§
Sufficient warning = warning of all attendant dangers when the product is used for its proper
purpose.
§

Ex. We all known coffee is hot or that smoking around gas is dangerous.
Special knowledge: CCQ 1473***
1473. The manufacturer, distributor or supplier of a movable property is not liable to reparation
for injury caused by a safety defect in the property if he proves that the victim knew or could
have known of the defect, or could have foreseen the injury.
Nor is he liable to reparation if he proves that, according to the state of knowledge at the time
that he manufactured, distributed or supplied the property, the existence of the defect could not
have been known, and that he was not neglectful of his duty to provide information when he
became aware of the defect.
§
A manufacturer is not liable for injuries caused to a person who should have known better.
§
Victim knew
§
Victim could have known – there was sufficient information on the product but the victim didn’t
read the label (e.g. someone is a chemical engineer but couldn’t foresee that mixing two
chemicals together would be harmful).
§
Victim should have perceived the injury (e.g. when using a shotgun, you should not place your
eyes against the telescopic lenses or you will get a major black eye). Ex. A professional carpenter
used a drill without protective glasses. As an expert, he should have known better.

III. LIMITATION OF LIABILITY
Superior force: CCQ 1470 à
Act of God
1470. A person may free himself from his liability for injury caused to another by proving that
the injury results from superior force, unless he has undertaken to make reparation for it.
A superior force is an unforeseeable and irresistible event, including external causes with the
same characteristics.
§
Superior force will buy you extra time to deliver your obligation (unless the contracts specifically
says it applies notwithstanding superior force).
§

Ex. Hurricane in Miami = foreseeable
§

Ex. Hurricane in Montreal = unforeseeable; very unlikely
Giving assistance: CCQ 1471
1471. Where a person comes to the assistance of another person or, for an unselfish motive,
disposes, free of charge, of property for the benefit of another person, he is exempt from all
liability for injury that may result from it, unless the injury is due to his intentional or gross fault.
§
Good Samaritan – you save a man from a heart attack but break one of his ribs while giving him
CPR; you will not be held liable unless the victim shows you intended to do so.
§
Giving away property to charity e.g. giving your old toaster to the Salvage Army or to a friend
and it blows up – you will not be held liable.

o Quebec Charter: Sec. 2
2.
Every human being whose life is in peril has a right to assistance.
Aiding person whose life is in peril.
Every person must come to the aid of anyone whose life is in peril, either personally or calling
for aid, by giving him the necessary and immediate physical assistance, unless it involves danger
to himself or a third person, or he has another valid reason.
Whistleblowing: CCQ 1472
1472 . A person may free himself from his liability for injury caused to another as a result of the
disclosure of a trade secret by proving that considerations of general interest prevailed over
keeping the secret and, particularly, that its disclosure was justified for reasons of public health
or safety.
§

Ex. You are aware that your employer dumps toxic waste in the river and inform public security –
you will not be held liable.
Waiver: CCQ 1474***
1474 . A person may not exclude or limit his liability for material injury caused to another
through an intentional or gross fault; a gross fault is a fault which shows gross recklessness,
gross carelessness or gross negligence.
He may not in any way exclude or limit his liability for bodily or moral injury caused to another.
§
Waiver only protects for material damages due to simple negligence of the operator.***
o
***SIMPLE NEGLIGENCE: If the operator is simply negligent, you cannot sue
for material damages. In order to claim material damages, you have to show
Intentional fault or gross negligence/gross carelessness.
§

Ex. You go bungee jumping. However, the employee forgot to weigh you and put a rigid chord
that broke your legs. He says that he is not responsible because you signed some papers (waiver).
In this case, you can definitely sue – they are liable.
§
Because this is an example of simple fault (unintentional fault), they are liable for moral and
bodily damages, but not material (such as ripped jeans). However, if the fault was intentional,
they would be liable for all types of damages, including material.
Notice excluding liability: CCQ 1475
1475 . A notice, whether posted or not, stipulating the exclusion or limitation of the obligation to
make reparation for injury resulting from the nonperformance of a contractual obligation has
effect, in respect of the creditor, only if the party who invokes the notice proves that the other
party was aware of its existence at the time the contract was formed.
§

Ex. Putting your jacket in a coat check. When picking it up, it is destroyed. Even though there is a
sign saying that the club is not liable, they are liable. They would have to prove that you were
away of the sign’s existence, which is hard to prove. However, they are protected from simple
negligence (e.g. if you put your rolex in your pocket, they are not liable).
Notice of warning: CCQ 1476
1476 . A person may not by way of a notice exclude or limit his obligation to make reparation in
respect of third persons; such a notice may, however, constitute a warning of a danger.
§
Simply putting a sign up does not relieve you from liability.
§

Ex. If you put a notice of warning “Beware of dog”, and someone gets bit on your property, you
are liable.
§

Ex. “Warning, wet floor”. Is it visible? Did you decide to wash the floor right before the store
would be very busy? Were the people running or walking (contributory negligence). See facts.
Assumption of risk: CCQ 1477
1477. The assumption of risk by the victim, although it may be considered imprudent having
regard to the circumstances, does not entail renunciation of his remedy against the person who
caused the injury.
§
In some situations, you are assuming certain risks.
§

Ex. You assume the risk that you may fall and injure yourself. However, you do not assume the
risk that a snow machine will blow up and set you on fire.
Apportionment of fault: CCQ 1478 à Contributory negligence
1478. Where an injury has been caused by several persons, liability is shared by them in
proportion to the seriousness of the fault of each.
The victim is included in the apportionment when the injury is partly the effect of his own fault.
§
This article pertains to contributory negligence – when the injury has been caused by many
people. Courts will often split the liability.
§

Ex. When your dog bites a passerby who was on your private property, both of you are faulty
(50% / 50%)
§

Ex. When your dog bites a passerby, but a “Beware of dog” notice is posted on your door and the
victim is on your private property, you are approximately 30% at fault while the victim is
approximately 70% at fault.
§

Ex.
When your dog bites an intruder who entered your house, you are approximately 1% faulty
while the victim is approximately 99% at fault (but in such cases, most victim wouldn’t sue).
Aggravation of injury: CCQ 1479
1479. A person who is liable to reparation for an injury is not liable in respect of any aggravation
of the injury that the victim could have avoided.
§

Ex. Someone accidentally throws an elastic in your eye. You wait 4 weeks before going to see a
doctor and now your eye is a total mess. The person who threw the elastic at your is not liable for
the worsening (aggravation) of the injury. He is only liable for immediate damages.
Solidary (joint & several) liability: CCQ 1480
1480. Where several persons have jointly (together/collectively) taken part in a wrongful act
which has resulted in injury or have committed separate faults each of which may have caused
the injury, and where it is impossible to determine , in either case, which of them actually caused
it, they are solidarily
(joint and several)
liable for reparation thereof.
§

Ex.The capsules of a shotgun are the same no matter what type of shotgun is used. You and your
friends are hunting and are strategically placed in a hunting line. A bird moves and all shoot
outside their hunting zone. One friend shoots you in the leg. Because the bullet capsule cannot be
identified, everyone is liable for going outside their hunting zone. It was so impulsive that it was
impossible to identify who did it.
§

Ex. Three students decide to beat me up for whatever reason. One holds me, one punches me and
the other kicks me. All three are liable for 100% I can collect it any way I want 50/20/30% or
100% from one person, doesn’t matter.
In all noncontractual breaches, the presumption is solidary liability and also for commercial
contracts.

IV. PUNITIVE DAMAGES
Quebec Charter of Human Rights: Sec. 110, Sec. 49
Section 1.
Every human being has a right to life, and to personal security, inviolability and freedom.
Juridical personality.
He also possesses juridical personality.
Section Right to assistance.
2.
Every human being whose life is in peril has a right to assistance.
Aiding person whose life is in peril.
Every person must come to the aid of anyone whose life is in peril, either personally or calling
for aid, by giving him the necessary and immediate physical assistance, unless it involves danger
to himself or a third person, or he has another valid reason.
SectionFundamental freedoms.
3.
Every person is the possessor of the fundamental freedoms, including freedom of conscience,
freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly
and freedom of association.
SectionSafeguard of dignity.
4.
Every person has a right to the safeguard of his dignity, honour and reputation.
Section Respect for private life.
5.
Every person has a right to respect for his private life.
Section Peaceful enjoyment of property.
6.
Every person has a right to the peaceful enjoyment and free disposition of his property, except to
the extent provided by law.
SectionHome inviolable.
7.
A person's home is inviolable.
SectionRespect for private property.
8.
No one may enter upon the property of another or take anything therefrom without his express or
implied consent.
Section Right to secrecy.
9.
Every person has a right to nondisclosure of confidential information.
Disclosure of confidential information.
No person bound to professional secrecy by law and no priest or other minister of religion may,
even in judicial proceedings, disclose confidential information revealed to him by reason of his
position or profession, unless he is authorized to do so by the person who confided such
information to him or by an express provision of law.
Duty of tribunal.
The tribunal must, ex officio, ensure that professional secrecy is respected.

Section Exercise of rights and freedoms.
9.1.
In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for
democratic values, public order and the general wellbeing of the citizens of Québec.
Scope fixed by law.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by
law.
Section 10.
Every person has a right to full and equal recognition and exercise of his human rights and
freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy,
sexual orientation, civil status, age except as provided by law, religion, political convictions,
language, ethnic or national origin, social condition, a handicap or the use of any means to
palliate a handicap.
Section 49.
Any unlawful interference with any right or freedom recognized by this Charter entitles the
victim to obtain the cessation of such interference and compensation for the moral or material
prejudice resulting therefrom.
Punitive damages.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the
person guilty of it to punitive damages
V. CASES
CASE 1 – HARRIS V. OSTROMOGILSKY
Legal issue :
§
CCQ 1621: Punitive damages may be awarded when provided by law
o
s. 4 Charter:Every person has a right to the safeguard of his dignity, honour and
à
reputation. Claim for punitive damages under s. 49 Chater
§
CCQ 1457: Civil liability
Legal parties :
§
Mr. Harris, Plaintiff
§
Mr. Ostromogilski, Defendant
Facts/Decision :
§
Mr. Harris had been leasing a taxi cab from Mr. Ostromogilski’s wife. Every week, he would go
to the defendant’s house to settle his accounts and pay royalties. One day, Harris went to O’s
house to settle his accounts; however, the past week had been relatively quiet and Harris did not
collect much money from clients. O got very upset and severely harmed Harris by beating him
up. In his defense, O claims he did not harm Harris at all – that he injured himself by falling hard
on his way out. On the other hand, Harris claims O got very upset and severely beat him up.
Which version is more plausible? According to the judges, Harris’ version is more likely to have
occurred.
§
A test was conducted to assess defendant O’s civil liability. The defendant is at fault and is the
direct and immediate cause of moral, material and bodily damages inflicted on the plaintiff.
Hence, there is a civil liability under CCQ 1457.
§
Under CCQ 1621, where the awarding of punitive damages is provided by law, the amount of
damages may not exceed what is needed to fulfill their preventative purposes. The defendant had
two trials: civil and criminal. In the criminal trial, defendant O was found guilty and had to do
jail time. In the civil case, the defendant had to provide compensatory damages (moral, bodily,
moral) to the victim under CCQ 1457.
§

The request for punitive damages under CCQ 1621 was refused as the defendant cannot be
punished twice for the same assault – he had already served jail time. In other words,
punishing O twice would exceed what is needed to fulfill the preventative purpose of
punitive damages.
o “An amount for punitive damages following a criminal conviction and sentence
for the same set of facts may constitute…l’imposition d’une double punition pour
le même acte. (…) Defendant aggressor has already been prosecuted and punished
for the same acts in the criminal court”.


CASE 2 – WALKER V. SINGER
Legal Issues:
§
Civil liability (CCQ 1457) + request for punitive damages (CCQ 1621)
§
Honour, dignity, reputation (s. 4 Charter) + punitive damages (s. 49 Charter)
Legal Parties:
§
Mr. Walker, Plaintiff
§
Mrs. Singer, Defendant
Facts/Decision:
§
This case pertains to the brief relationship between a man, Mr. Walker, and a woman, Mrs.
Singer. Both fell in love and moved in the same building, where each had his own apartment.
Mrs. Singer became pregnant and went to the clinic to get an abortion. Their relationship was
still very recent. She got very frustrated by this event and entered Mr. Walker’s apartment to
destroy his clothes. Mr. Walker also saw her leave that day with a large suitcase; the landlord
kicked her out of her apartment. When Mr. Walker entered his apartment, he saw numerous
pieces from his wardrobe and personal belongings were missing. He reported the incident to the
nearest police station. Soon after, Mrs. Singer learned about the complaint filed by Mr. Walker
and filed a sexual assault complaint of against him.
§
During the trial, the judge did not believe Mrs. Singer’s interpretation of the events as it was very
conflicting and confusing. Mrs. Singer’s attorney urged her to drop the charges against Walker.
The court decided that she had fabricated the sexual assault story against Walker to get even with
him. To say that a person had committed sexual assault against a person when it is not true is a
serious attack to his personal reputation and dignity.
§
Mr. Walker sues for damages to reputation, dignity, stress and inconvenience under CCQ 1457.
He is awarded compensation for moral damages. He gets money for his clothes (700$) and moral
compensation (5000$), stress andinvonvenience (7560) + section 4 of charter for punitive
damages
§
He further requests punitive damages, which he is awarded.

CASE 3 – FARMAKIS V. CANADIAN TIRE
Legal Issues:
§
Manufacturer’s liability (CCQ 1468)
§
Safety defect (CCQ1469)
Legal Parties:
§
Mr. Farmakis, Plaintiff
§
Canadian Tire Corporation, Defendant
Facts/Decision:
§
Mr. Farmakis is 54 years old and purchased a step ladder to work on his retirement home in
Greece. He purchased it at Canadian Tire in Ontario and had it shipped to Greece. According to
rd
him, it was safely packaged in rubber, cardboard and plastic. When he was standing on the 3
step of the 5 step ladder, he lost his balance and the ladder collapsed – he broke his ankle and
heel. Farmakis sues, claiming he was not adequately warned concerning the use and risks
associated with the ladder.
§
Manufacturer’s defect: Farmakis got the ladder tested by a professional engineer who conclused
that the ladder must have had a prepurchase defect. However, another skilled engineering doctor
(expert) concluded that the met all industry standards and, under normal use, could not have
failed in the manner suggested by the plaintiff. The Court found that it is nearly impossible to
determine whether damage to the ladder was done before the purchase or after, say during the
transportation to Greece.
§
Inadequate labels: Farmakis’ expert now argues that there was insufficient signage on the ladder
itself. Howeve, it was found that the ladder did contain proper signage, but that Farmakis
removed it before using the ladder.
§
Decision: Farmakis knew or could have known of the potential defect à CCQ 1473: The
manufacturer of a movable property is not liable for reparation for injury caused by a safety
defect if he proves that the victim knew or could have known of the defect. Action dismissed
because Canadian Tire met with their duty to warn.

CASE 4 – WALFORD V. JACUZZI
Legal Issues:
§
Contributory negligence: CCQ 1478
§
Safety defect/ Manufacturer’s duty to warn
§
Causal connection
Facts/Decision:
§
A mother (Walford) purchased a 4foot pool which was very shallow and, separately, purchased a
10foot slide (possible danger). She warned her daughter not to slide head first, advising her of
the potential dangers. At the time, her daughter was 16 years old and decided not to listen to her
mother and broke her neck.
§
Mrs. Walford is now suing Jacuzzi for improper signage on the slide (safety defect). She argues
that there were insufficient warnings.
§
The court found that Jacuzzi was not the immediate and direct cause of the daughter’s injury. The
actual cause of the accident was Walford’s failure to listen to her mother. Also, the court
concluded that the daughter and mother should have known or foreseen the injury (CCQ 1473)
§
Decision: Jacuzzi should build more prominent, durable warnings pertaining to the use of water
slides. However, there was sustained by the plaintiff.

CASE 5 – MORSE V. COTT BEVERAGES
Legal Issues:
§
Safety defect (CCQ 1469)
§
Manufacture’s liability (CCQ 1468)
§
Compensatory damages (CCQ 1457)
Legal Parties:
§
Tami Morse, Plaintiff
§
Cott Beverages, Defendant
Facts/Decision:
§
Morse purchases a 2L bottle of pop. Unable to turn the twistoff cap, she decides to use a
nutcracker to get a better grip. The cap pops off and damages her eye.
§
Her and her lawyer go to look at the machines used to cap the bottles. The machine is said to cap
at different pound levels. The manufacturer of these capping machines, ALCOA, provided Cott
with a manual on how to properly use the machines. In the manual, it is stated that the soda
manufacturers should not cap past a 15lb pressure: “any improperly adjusted or maintained
capper can cause improper closure application, resulting in sudden closure ejection and serious
injury, often to the eye”. It is also stated that “high torque may lead the consumer to use a tool or
device to aid in removing the closure”.
§
Cott Beverages ultimately decided to cap at a 13lb pressure, within limits. However, they
realized this pressure was insufficient because numerous caps were coming off during
transportation to retailers. So they decided to cap at a 20lb pressure, highly above the suggested
limit. As a result, Cott Beverages is the immediate and direct cause of the injury.
§
Decision: Cott must provide the plaintiff with compensatory damages. Also, Cott’s fault is
intentional (i.e. they were aware of the possible injuries that could result from the increasing of
capping pressure) à punitive damages awarded.


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