Methodology of the Civil Law in France
  • Three principles for forming a code: 1) Complete in its field; 2) drafted in general principles; 3) principles should fit together logically as a coherent whole and to be based on experience
  • General principles permits a discussion between courts and jurisprudence; logic and experience through doctrine is used to elaborate legal rules and fill the gaps
  • In France, the Code’s authority has been reduced; numerous statues have been passed which have not been incorporated into the Code
  • Statutes do not have the generality of application; they are regulatory in nature and sometimes set forth extremely minute rules; often short-lived; have to be adjusted to new economic features
  • In order to restore statutory law to its traditional prestige, the 1958 Constitution expressly provided that certain matters are of a regulatory character and are under the jurisdiction of the executive acting by decree; statutes only determines fundamental principles, leaving it to the executive to determine the details of questions which may arise
  • It is the task of judges and lawyers, engrained with the general spirit of the law, to conduct the application of those principles. The legislator’s science consists in finding in every matter the principles most favourable to a general rule; the judge’s science is to make such principles operative, to ramify them, to extend them by a wise and reasoned application to given cases
  • The role of judicial decisions: to clarify the meaning of the rules in various circumstances which are submitted to the judge; to clarify what is obscure in the law and to fill its gaps; to adjust law to the evolution of the society, to provide against the law’s inadequacy to contemporary problems
  • One can observe the formation of a layer of maxims, judicial decisions, and doctrine which is clarified by practice and by the clash of views expressed in judicial debate
  • It is only at the level of the courts of first instance and courts of appeal that conflicting decisions may be found. Once the Court of Cassation has spoken, it normally will be obeyed
  • Wherever the code has permitted, the judges have fulfilled their task of modernizing law, i.e. law of unjust enrichment, abuse of right, liability of objects
  • France’s methods may not always work the best; decisions are anonymous with no dissenting or concurring opinions; extremely short decisions written in the abstract= it remains for the commentators and the lower courts to monitor how the rule is used in further decisions and to ascertain the meaning, scope, justification of the rule
  • The Court of Cassation hears 6,000 cases a year; it seems difficult to prevent the magnitude of decisions from decreasing the value of each as well as their cohesion, and thus, the clarity of the whole law; it is forgotten that the task of a supreme court is to clarify the law, to adjust it to contemporary needs
  • The Code was founded on experience: “Codes are made only with time. But, properly speaking, they are not made.” They are a collective, progressive, and noninstitutional creation
  • Articles of a code are not only rules of law, but also sources of law as well; the decision is less the application of a clear provision than the combination of a number of provisions, which lead to the decision more than they express it; only to the extent that the various provisions of the Code constitute a coherent whole can this method be successful
  • Doctrine plays a significant role; doctrinal writings comment on statutory law and judicial decisions in order to clarify them, to give of them a systematic view without which there would be no law. Of equal importance, however, is the purpose of guiding the courts and, more broadly, the lawgivers; doctrine exercises a certain influence on lawyers who study doctrinal writings in order to find arguments in support of their cases and then expressly refer to such writings

La Disposition preliminaire du Code civil du Quebec
  • The new CCQ does not codify private law, but rather the jus commune, which does not only encompass the private law
  • The goal of all codification is to interpret all ordinary human activity to prevent conflicts
  • There is always a question as to the usefulness, the need and the form that a preliminary provision to a Code should take
  • Many different examples: should it be long and all-encompassing (Germany) or short and sweet (Quebec); should the provision/articles be limited to its interpretation and scope? Should there be an organizing principle? Should its general weight in relation to other legislation be spelt out?
  • The CCQ went through 3 versions; it goes from establishing ‘the law’, to ‘private law’, and finally to ‘jus commune’
  • The first version seemed useless; we already knew that the Code was outlining the exercise of rights, and how the Code should be interpreted
  • The second version seemed too restrictive; it was not limited to simply private law, but there were provisions relating to the state as well
  • Thus we get to the idea of jus commune, the law of the land is found in this Code; like the common law in that it governs all people, unlike the common law as it is codified in one piece of legislation
  • Jus commune: l’ensemble des principes et des règles qui s’appliquent à tous les sujets de droit à moins qu’il n’y ait des règles exorbitantes de ce droit commun prévues dans les lois ou dans les règles de common law exclusivement applicables à la couronne ou aux corporations publiques
  • The need for a preliminary provision; to reinforce the importance of civil law in Quebec in the context of North America
  • Effects on doctrine; 1) Harmony with the Quebec Charter; 2) Harmony with the general principles of law; 3) emphasis on logical and coherent interpretation; 4) emphasis of analogy when interpreting; 5) ‘la lettre, l’espritoul’object’ are used as reference points for interpreting, that they are not exhaustive but they should always be considered, and that we must always start and end with the text of the code
  • The preliminary provision allows for a dynamic approach to interpretation; sometimes it used quite narrowly, other times quite expansively; it entirely depends on the nature and position of the other provisions and external statutes
  • The CCQ confirms that there is no Federal Common Law used to apply to the Crown’s immunity and privileges everywhere in Canada. It is the law of the provinces that constitutes the fundamental law in which federal statutes are interpreted
  • The Federal governmentaffirms this via the Harmonisation Law; equal authority is provided to the common law and civil when interpreting federal statutes
  • How it is used in jurisprudence: 1) To affirm that the Code is the fundamental law of Quebec; 2) To affirm its supplementary role when statutes are silent or insufficient; 3) The ability for statutes to fill silence or insufficiencies of the Code
  • CCQ has an organizational function: The code is the fundamental law in which other laws can supplement or expressly derogate from. It’s a law of general application which supplements all other law, but it leaves space for particular/special laws
  • In conclusion, the preliminary provision has reaffirmed the Civil Code’s jus commune as the absolute authority in the civil system

Notes

  • 1763 British Royal Proclamation abolishes civil law
  • 1774: Quebec Act; reaffirms civil law system in Quebec for all property and civil matters
  • 1804: France adopts Napoleonic Code
  • 1866: Quebec adopts civil code
  • Cotume de Paris (from 1663) was rather old; Quebec is much more different than France now
  • Influenced greatly by Napoleonic code, has some structural features from the Louisiana code
  • Several reasons to adopt civil code
  • Diversity of the substantive sources: local laws in addition to coutume to Paris
  • Diversity in language in the application of the laws
  • Quebec saw the advantages of codification in Louisiana and Europe
  • Old civil code was becoming stagnant; many statutes were adopted on the side; does this make civil law in Quebec an in-between common law and civil law
  • Preliminary provision: clear that the legislator wanted the civil code to be the foundation of all other laws; Statute now has to be adopted in light of the civil code
  • Although in theory the civil code is highly important in theory, more and more statutes are adopted because they are just easier: Faster, less costly, more precise
  • Statutes are usually adopted post facto; Civil code is adopted before the fact
  • Civil code is supposed to represent the values of society
  • But it’s always a bit late (delayed), the legislator cannot predict the values of society
  • But statutes are adopted in the meantime which can more suitably reflect the values of society
  • Is the civil law a good system?
  • Generality of rules?
  • Justice Holmes: general provisions do not decide concrete cases
  • Generality of rules gives greater discretion to the judge; is this a problem when compared to Common Law?
  • Civil code is a stagnation of the law
  • Civil code is always delayed in representing the values of society; this is remedied by statutes and case law which evolve the values
  • Predictability
  • Arguments for it being more of a civil tradition
  • There is a code
  • Legal training; Look directly at articles and not precedent
  • Use of doctrine
  • Can’t avoid historical heritage of Quebec
  • Judgements cite the codal provisions first; code update every year constantly evolving and not archaic
  • Arguments for it being more of a common law tradition
  • The code does not make sense without referring to precedent or statute
  • Open to interpretation
  • Need to have a professional background, counter to civil law perception
  • Courts in quebec inspired by common law tradition
  • Judgements are binding; We have dissents
  • Adversarial system not inquisitorial
  • Integration of common law ideas, like the trust

Class 3

Boodman «Third party Beneficiairies in Quebec Civil Law
  • A summary on how CCQ articles 1440-1450 work
  • Common law definition of privity: a contract cannot, as a general rule, confer rights or impose obligations arising under it on any person except the parties to it. It precludes parties to a contract from imposing liabilities or obligations on third parties. It prevents third parties from obtaining rights or benefits under a contract.
  • In civil law, the analogous term is the ‘relative effect/ relativity of contract’, codified under 1440
  • Historical context: Roman law found that stipulation for another was completely unenforceable with exceptions
  • Pothier accepted Roman exceptions into French law; stipulation for another be limited to instances in which the stipulator/promisee has a pecuniary interest and cases of a gift with a charge
  • In Hallé, the SCC stated that the codal requirement that the stipulation be a ‘condition’ made in a contract for the stipulator/promisee merely required that the stipulation impose an obligation on the co-contractant as a promisor
  • Current regime identifies the stipulation for another as an autonomous civil institution in that it need not be an accessory to another contract
  • The stipulator need only have a moral interest in bestowing a benefit on the third person
  • Other than CCQ requirements and that there is a clear express or implied intention on the part of the stipulator to benefit a third person, the stipulation is subject to normal rules of contract formation
  • Most significant legal effect is the immediate creation of a right in favour of the 3rd party to enforce performance by the promisor without need to implead promisee (CCQ 1444)
  • Consequently, the creditors have no claim upon the debt owed by the former to the 3rd party
  • 3rd party beneficiary benefits from any security granted by the promisor for performance of the benefit. The third party could sue for specific performance with or without damages
  • There is no contractual relationship between the stipulator and 3rd party; this is huge for revocation powers (check out 1447-1448); right to revoke is personal to the stipulator and cannot be exercised by his creditors
  • Revocation is not subject to any formal requirements; it terminates the 3rd party’s rights
  • Stipulation cannot be revoked after the 3rd party has advised the contracting parties their willingness to accept; even beneficiaries or heirs can accept (1449)
  • Reliance with knowledge of the stipulation would likely constitute an acceptance if known to parties
  • Problem: where the stipulation is purely gratuitous, revocation after acceptance could conflict with the revocation rules of inter vivos gifts (1836-1838 CCQ)
  • Existence of 3rd party rights affects contractual relationship between promisee and promisor: 1) Any remedy allowing promisee to terminate/resolve contract cannot be exercised without 3rd party’s acceptance
  • 2) A recourse in favour of the promisee in specific performance raises issue of sufficient interest where 3rd party is not part of the proceedings; Quebec courts allow this to the extent any harm is caused to him by non-performance of the promise in favour of the 3rd party beneficiary
  • Civil law contracts is predicated upon consensualism and freedom of contract rather than formalism; contracts only needs exchange of consents and not consideration which is how civil law gets around common law privity issues
  • Consent needed by all 3 parties; the rights in favour of 3rd party is precarious until acceptance
  • 3rd party can only gain rights and benefits, no obligations!

Bank of Montreal v Bail, 1992, SCC
Facts
  • Hydro Quebec awarded construction contract to Bail for a fixed price
  • Bail subcontracted part of the work to Laprise
  • Subcontractor complained of poor soil conditions
  • Hydro Quebec agreed to alter the work order to make up for poor soil conditions
  • Subcontractor went bankrupt , and Bank of Montreal, the assignee for the subcontractor’s accounts, commenced an action in contractual liability against Bail. Bail impleaded Hydro-Quebec in warranty.
  • Subcontractor received a copy of a geotechnical report that Hydro Quebec had, which would have been able to explain the difficulties the subcontractor was experiencing
  • The Bank brought an action in delictual liability against Hydro Quebec
Issue
Did Hydro Quebec owe a duty to disclose information in its possession concerning soil conditions to the subcontractor?
Reasoning
  • Given that there is no direct contractual relationship between Laprise and Hydro-Quebec, the Bank’s action must be based on Hydro-Quebec’s delictual liability
  • Houleratio: Although contractual and delictual liability may coexist even in the context of a contract, delictual liability must arise independently of contractual obligations and all the elements required to give rise to such liability must be found
  • For a third party, both the existence of a contractual obligation and the failure to perform that obligation are juridical facts, which do not entitle it to assert any claim. The facts must fulfil the conditions of delictual liability. We must determine whether the party whom it is sought to make liable behaved like a reasonable person toward the third parties
  • 1053 CCLC: expresses a duty to act reasonably toward third parties
  • 1024 CCLC: general duty of good faith in contractual relationships
  • A party to a contract must conduct itself just as reasonably and with the same good faith toward third parties as toward other contracting parties
  • Boucher v Drouinratio: The third party is not seeking to appropriate to itself the benefit of an obligation which is not stipulated in its favour, it is seeking compensation for the damage caused to it by the delictual act of the contracting party. The third party is asserting a right based on the fault for which the contract provided an occasion
  • It is possible that even in the absence of a contractual fault there may be the basis for an action in delictual liability if the contracting party failed in its general duty to act reasonably
  • The parties to a contract are delictually liable for the damage which they may cause to third parties in the context of their contractual relationship by their failure to meet the standard of reasonable conduct in the circumstances of the relationship
  • Two typical cases: 1) Obligations set out in the contract entail definite benefits for third parties, and the contracting party must avoid causing damage to the third parties
  • 2) Obligations stipulated for the exclusive benefit of the other contracting party; the duty is solely found in the contractual obligation, it is not a reasonable conduct standard that falls upon everyone
  • In the case at hand, the bank is invoking Hydro’s obligation to inform as set out in the contract between it and Bail as a basis for its action in delictual liability
  • There is a general theory of the obligation to inform based on the duty of good faith in the realm of contracts. This duty to inform exists when:
  • 1) Knowledge of the information, actual or presumed, by the party which owes the obligation to inform
  • 2) the information in question is of decisive importance
  • 3) it is impossible for the party to whom the duty to inform is owed to inform itself , or that the creditor is legitimately relying on the debtor of the obligation
  • Due to the inequalities in terms of information, the civil law imposes a positive obligation to provide information in cases where one party is in a vulnerable position as regards information from which damages may result
  • The obligation to inform and the duty to not give false information may be seen as two sides of the same coin
  • Do not confuse the obligation to inform, and the obligation to counsel in certain contractual relationships
  • duty to inform must not be defined so broadly as to obviate the fundamental obligation which rests on everyone to obtain information and to take care in conducting his or her affairs
  • a duty to inform may arise independently of a contractual relationship
  • The obligation to inform in contracts of enterprise dealing with large projects is characterized by the allocation of risk, the relative expertise of the parties and the contract’s continuing formation
  • the risk is generally assumed by the contractor which is in a position to assess the risk during the tender process
  • the party assuming the risk has a duty to become informed about it, however the other party must not by action or inaction contribute to distorting the evaluation of the risk by the party who assumes that risk
  • the owner’s obligation to inform increases with its expertise relative to the contractor’s, particularly when it provides information to the contractor within its field of expertise, and that information is incorrect
  • In a contract for a fixed price the owner has not reserved the right or privilege of changing the plans and specifications during the course of the work ; changes must be agreed upon between the contractor and owner
  • The issuance of change orders may lie on the borderline between formation and execution of contracts; there needs to be an exchange of consent throughout the entire execution of the contract; as a result, it is hard to distinguish between pre-contractual and contractual obligations to inform.
  • A subcontractor may invoke in its favour a failure by the owner to fulfil its obligation to inform the contractor, in so far as the owner failed to meet the standard of conduct of a reasonable person.
Applying law to facts