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Flashcards in Chapter 8 Deck (53):

What is a contract? (5 elements)

- An agreement of wills: CCQ 1378
- Good faith: CCQ 1375
- Onerous vs. gratuitous: CCQ 1381
- Instantaneous v. successive performance: CCQ 1383
- Oral vs. written contracts


(In 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.


(In What is a contract?)

- Good faith: CCQ 1375

1375. The parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished.


(In What is a contract?)

- 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.


(In What is a contract?)

- Instantaneous v. successive performance: CCQ 1383

1383. Where the nature of things does not preclude the performance of the obligations of the parties at one single time, the contract is a contract of instantaneous performance.
Where the nature of things requires that the obligations be performed at several different times or on a continuing basis, the contract is a contract of successive performance.


(In What is a contract?)

- Oral vs. written contracts

- When / how to use written?

-> Verbal contracts generally valid, but harder to prove (recording of a contract is not a contract itself, it’s merely the recording. + you can’t record someone without their consent)

-> Doesn’t have to be in any special form necessarily (ie you can just write it on a random paper and get the person to sign it)

-> Certain contracts must be in writing + special form (eg. Buying a house, there is a special form requirement, or for example a will). Most do not have a form (eg. You borrow a hundred bucks from a friend, you can legit just do it on a napkin)

-> Sometimes requires a witness (eg. For a will)


Formation of contracts:

- Offer (4)

* essential elements: CCQ 1388
* determinate vs. indeterminate: CCQ 1390
~ invitation to treat (i.e. newspaper ad)
* term: CCQ 1390
* lapses: CCQ 1392


Formation of contracts:

- Acceptance (4)

* express or tacit: CCQ 1386
* where acceptance occurs: CCQ 1387
* counter offer: CCQ 1393
* silence: CCQ 1394


(In "Formation of contracts - "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.

-> Two essential elements: price & item being bought.
-> Lease -> three: price, term, and item leased.


(In "Formation of contracts - "Offer")

- determinate vs. indeterminate: CCQ 1390
-> invitation to treat

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.

-> Indeterminate eg: I will buy a pen for 50 cents -> didn’t ask for anyone specific to sell to me

-> Invitation to treat: eg. Dog for sale $50. One guy comes and buys the dog. Next person comes, you say that the dog has been sold already. The guy goes like “well I’m owed to be able to purchase a dog for 50 bucks.” -> INVITATION TO TREAT: YOU ACCEPTING AN OFFER FROM THEM, NOT YOU REFUSING THEIR ACCEPTANCE OF YOUR OFFER.

-> A little different for professional sellers who send out flyers etc., eg. Black Friday sale but one really cheap TV (-> NOT ALLOWED), they have to have a reasonable amount of items in stock otherwise they have to say “Only 1 available”, or it’s false advertising (see Consumers Protection Act).


(In "Formation of contracts - "Offer")

* term: CCQ 1390

When can the offer be revoked?

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.


(In "Formation of contracts - "Offer")

* lapses: CCQ 1392

1392. An offer lapses 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 with respect to the offeree if he has rejected it.
The death or bankruptcy of the offeror or the offeree, whether or not a term is attached to the offer, or the institution of protective supervision with respect to either of them also causes the offer to lapse, if that event occurs before acceptance is received by the offeror.

-> Reasonable amount of time: essentially instantaneous / very short amount of time (unless there’s a term)


(In "Formation of contracts - "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.

-> Express: saying yes or signing a contract
-> Tacit: saying nothing but actions show that you accept the offer (eg. Taking my money and giving me the pen)


(In "Formation of contracts - "Acceptance")

* Where acceptance occurs

1387. A contract is formed when and where acceptance is received by the offeror, regardless of the method of communication used, and even though the parties have agreed to reserve agreement as to certain secondary elements.

-> If two people are not in the same place, the deal is concluded when I receive the person’s acceptance.


(In "Formation of contracts - "Acceptance")

* Counter offer

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.


(In "Formation of contracts - "Acceptance")

* Silence

1394. Silence does not imply acceptance of an offer, unless the contrary results from the will of the parties, the law or special circumstances, such as usage or a prior business relationship.


(In "Validity of a contract")

Four elements

Four elements: Valid capacity, cause, object and consent (+ sometimes some sort of special form)


(In "Validity of a contract")

- Capacity

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.

-> i.e. Are you able to enter into a contract (so over 18 and of sound mind)?
-> There can be a court judgement that does not allow you to enter in a contract even though you’re over 18 (then you need a guardian or a tutor)


(In "Validity of a contract")

- Cause

1411. A contract whose cause is prohibited by law or contrary to public order is null.


(In "Validity of a contract")

- Object

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


(In "Validity of a contract")

- Consent

1399. Consent must be free and enlightened.
It may be vitiated by error, fear or lesion. (vitiated = rendered null)


(In "Validity of a contract")

- Error

1400. Error vitiates the consent of the parties or of one of them where the error relates to the nature of the contract, to the object of the prestation or to any essential element that determined the consent.
An inexcusable error does not constitute a defect of consent.

-> You go to Costco, you want to buy piece of silver jewelry as a gift. You go to the counter and you ask the person at the counter: I want to buy a silver bracelet. The clerk takes you to bracelets and says “here are the bracelets”. When you buy it, you realize it’s the wrong kind of silver (eg tag says Sterling silver, the item is not sterling silver). So the bracelet was in the wrong box -> this is an honest error (no attempt to deceive anybody) -> YOU CAN NULLIFY THE CONTRACT

-> Inexcusable error: eg. Too good to be true price on wtv, turns out it’s not legit (like clearly marked made in china or whatever), you’re just too dumb, you don’t get your money back.


(In "Validity of a contract")

- Fraud

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.

-> Burden of proof is on you


(In "Validity of a contract")

- Fear

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.

-> “Sell me your phone for 20 bucks or I’ll break your arm / break the arm of the first guy I see outside”

1403. Fear induced by the abusive exercise of a right or power or by the threat of such exercise vitiates consent.

-> 1403 is when someone of authority tells you to do something (coercion)


(In "Validity of a contract")

- Lesion

1405. Except in the cases expressly provided by law, lesion vitiates consent only with respect to minors and protected persons of full age.

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 circumstances as a whole.

-> Eg if minor or protected person acts on its own.

-> Two types: you were ripped off (paid too much for item), you didn’t understand the nature of the transaction (like costs)-> eg. 17-year-old buys a car for 1000 for a shitty old car. (its worth 2000). Problem: license plates (350 bucks), insurance (2000/year), repairs / maintenance, gasoline, tires, parking, so you can’t afford to keep the car because of all extra costs


(In "Validity of a contract")

- Invalid consent

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.

-> If any of the reasons above, you can render null the transaction, get your money back and in the case of fear, fraud, lesion, you can get damages (so not honest error)



(In "Contract that is null")

- Nullity v. Cancellation

1422. A contract that is null is deemed never to have existed.
In such a case, each party is bound to restore to the other the prestations he has received.



Special rules

- Adhesion contract: CCQ 1379
- Consumer contract: CCQ 1384
- Interpretation: CCQ 1432
* illegible: CCQ 1436
* abusive: CCQ 1437


(In "Contracts" -> "Special rules")

Adhesion contract

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.

-> eg. Employment contract


(In "Contracts" -> "Special rules")

Consumer contract

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 or services as part of an enterprise which he carries on.

-> where a human being buys something for personal, non-business use from a professional seller.


(In "Contracts" -> "Special rules")


1432. In case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it. In all cases, it is interpreted in favour of the adhering party or the consumer.

-> ie interpreted in favor of the ‘weaker’ party.


(In "Contracts" -> "Special rules" -> "Interpretation")

Illegible contract

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 illegible, interpreted in favor of the consumer or adhering party (weaker party)


(In "Contracts" -> "Special rules" -> "Interpretation")

Abusive contract

1437. An abusive clause in a consumer contract or contract of adhesion is null, or the obligation arising from it may be reduced.
An abusive clause is a clause which is excessively and unreasonably detrimental to the consumer or the adhering party and is therefore contrary to the requirements of good faith; in particular, a clause which so departs from the fundamental obligations arising from the rules normally governing the contract that it changes the nature of the contract is an abusive clause.

-> Not only “harsh”, it has to deviate from the norms of that industry, outside of what is reasonably expected.


Breach of contract, measures that are available (6 + 1)

- Performance by equivalence:
CCQ 1602
- Specific performance (injunction: to do,
to stop, to prevent): CCQ 1601
* Interlocutory injunction
* Permanent injunction
- Resolution (nullity): CCQ 1606
- Resiliation (cancelation): CCQ 1606
- Reduction of obligations
- Other measures (i.e. seizures)


(In "Breach of contract")

- Performance by equivalence: CCQ 1602

1602. Where the debtor is in 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 application or the 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.

-> You didn’t do what I contracted you for, get someone else to do what you wanted to do, sue you for the difference (plus other direct damages if there are any)


(In "Breach of contract")

- 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.

-> Technically available for all breaches of contract, but usually only for when there’s something unique about what you’re buying (eg. Real estate)

-> eg. Sign offer to buy a house, when you go to the notary, except know you refuse to sell me the house. You can use an injuction to order you to sell me the house.
-> Show proof (the signed contract)


(In "Breach of contract" -> "Specific performance")

Two types of injunctions

* Interlocutory (temporary) injunction

-> When you first sue someone (since suing usually takes 3-4 years from start to finish), you ask for an interlocutory injunction (temporary) so you can’t keep doing what it was you were doing during the trial period. -> mini trial, usually takes within a month.

-> Never guaranteed to get an injunction (a judge has to approve -> discretionary)

* Permanent injunction


(In "Breach of contract")

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.


(In "Breach of contract")

Resiliation (cancelation): CCQ 1606

A contract which is resiliated ceases to exist, but only for the future.


Contractual damages: CCQ 1458, CCQ 1607, CCQ 1611

- Compensation: bodily, moral, material damages

+ damages that flow DIRECTLY from the incident


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 reparatory damages is wholly or partly assumed by a third person.

-> Where does this apply? Eg. Charter of human rights, psychological harassment in LSA

- Prevent
- Punish


Penal clause (liquidated damages): CCQ 1622, CCQ 1623

1622. A penal clause is one by which the parties assess the damages in advance, 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.

-> Courts have some say in the reduction of penal clause -> eg. if they can show that the creditor received partial performance


(In "Non-contractual liability")

Personal liability

1457. Every person has a duty to abide by the rules of conduct incumbent on 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 liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.
He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.

-> endowed with reason
-> duty not to injure
-> compensation: bodily, moral, material damage


(In "Non-contractual liability")

Product liability (3+1)

- Manufacturer’s liability: CCQ 1468
-> Distributor, wholesaler, retailer
- Safety defect: CCQ 1469
- Special knowledge: CCQ 1473


(In "Non-contractual liability" -> "Product liability")

Manufacturer's liability

1468. The manufacturer of a movable thing is bound to make 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


(In "Non-contractual liability" -> "Product liability")

- Safety defect: CCQ 1469

1469. A thing 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 design or manufacture, poor preservation or presentation, or the lack of sufficient indications as to the risks and dangers it involves or as to the means to avoid them.


(In "Non-contractual liability" -> "Product liability")

- Special knowledge: CCQ 1473

Under what circumstances is the manufacturer not liable?

1473. The manufacturer, distributor or supplier of a movable thing is not bound to make reparation for injury caused by a safety defect in the thing if he proves that the victim knew or could have known of the defect, or could have foreseen the injury.
Nor is he bound to make reparation if he proves that, according to the state of knowledge at the time that he manufactured, distributed or supplied the thing, 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.

-> Manufacturer has to warn the ordinary person of the risks associated with ordinary use of the item.

-> Recall notices if a product is defective


Limitation of liability (6 elements)

- Waiver: CCQ 1474
- Notice excluding liability: CCQ 1475
- Notice of warning: CCQ 1476
- Apportionment of fault: CCQ 1478
- Contributory negligence (p.339 textbook)
- Solidary (joint & several) liability: CCQ 1480


(In "Limitation of liability")

- Waiver: CCQ 1474

When does a waiver exclude / not exclude the operator of liability

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 looks to cover everything (all cases of death etc.) BUT law says that there are limitations.
-> Waiver protects operator from property damage / simple negligence
-> Waiver does not protect operator from bodily or moral injury


(In "Limitation of liability")

- 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, with respect to 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.

-> Verbal contract, eg. Coat check in a club -> usually there is a sign that says that they are not liable for loss / damage of the shit you check in


(In "Limitation of liability")

- Notice of warning: CCQ 1476

1476. A person may not by way of a notice exclude or limit his obligation to make reparation with respect to third persons; such a notice may, however, constitute disclosure of a danger.


(In "Limitation of liability")

- Contributory negligence (p.339 textbook)

A doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident.


(In "Limitation of liability")

- Solidary (joint & several) liability: CCQ 1480

1480. Where several persons have jointly participated in a wrongful act or omission 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 the injury, they are solidarily bound to make reparation therefor.

-> If I get beat up by 3 people, I can collect up to 100% of damages from any of the 3 people.