Lesson

8 is illegal, contravenes specific statutes,

Fiachi case will be on the mid-term; contrary to public order, it is offensive to the

cases=jurisprudence sense of what we are as a society; you don’t

Fiachi case raises an important point of law: have to ask for nullification, the judge will

difference between relative nullity and decide that this contract is null and void, it’s

absolute nullity of a contract. Nullity— illegal; contracts that contravene public good

judge takes the tape and rewinds it to the

very beginning; judge puts them back in the Fiachi case: common bond, culture; the two

same state they were before the contract was people (husband and wife) trusted him

formed; excusable—you were ripped off; the (restaurant owner); he says, I’m interested in

error kills your consent; without consent selling, you don’t have to say yes/no on the

there is no contract spot, come around, you’ll see what people

order; ultimately, the couple decide to buy;

relative nullity has to be requested by the the clincher? what has transformed

witness; witness must explain to the judge uncertainty into certitude? their countryman

she was ripped off, she is a victim of fraud, says, Here’s how you get profit, and explains

either by omission or commission; but if you to them that he has two sets of books, one

don’t ask the judge to nullify the contract, he book is for the government in which he lists

won’t do it, because a judge is not allowed to his supposed sales/expenses, for the

make a decision ultra petita (outside law purposes of tax assessment; but there’s the

suite/petition); if you don’t ask in your 2nd book, a book he keeps in the drawer;

petition, the judge can’t give it to you book that reflects the true business, the

actual sales; his message: if the government

absolute nullity—a contract which stinks, it catches the hidden book, they’ll tax you into
the ground, but if you use the other book, a made an excusable error; in such cases you

work of fiction, and show it to the are attacking the validity of the contract

government, the taxes will be low, this way itself, you say, Judge something wrong is

you’ll make a profit—a clear cut case of a with this contract, rewind the movie, take us

contract which was doomed to be nullified. back; can get RN on account of lesion(!), on

The judge was able to smell the rat; he the ground of fear (not on the mid-term), or

declared that the contract was an absolute you ask for RN because of error(!)—the #1

nullity but then he had a decision to make: consent killer, and of course lack of

the owner, who recommended that the capacity; two kinds of errors are excusable

buyers engage in the scam, took money from and inexcusable; inexcusable error—a

the couple; in many cases, when a judge sees foolish, compulsive purchase—will not result

a contract that absolute nullity (AN) will say, in RN; in RN you ask for it, if you don’t ask,

The contract is null, get out of here; but it you won’t get it; recourse/remedy which you

bothers the judge that the seller may end up use where yes you were ripped off, but you

a winner because he has already collected want to keep it—quanti minoris (I choose

money. Warning: this is just an intro, will not to keep the object, and ask that the other side

suffice for the mid-term, it’s a preview; must be condemned to pay me the difference

read the case between what it’s worth and what I paid);

you don’t have to just ask for nullity, but also

Golden Griddle vs Belcourt case: Relative damages (punitive, moral, material);

nullity (RN) and Breach of Contract, know punitive—don’t see very often, they mean

the distinction; for RN, you say, Judge damages that are meant to teach a lesson;

something bad happened during the material—a loss of goodwill; how do you

formation of a contract, I was ripped off, I make proof of a loss of future profits? you
make proof of this nature to accountants to do what he said he would do; this order is

referred to as Injunction—it’s an order

Breach of Contract(!)—every person is ordering someone to do something or stop

expected to honour his contractual doing it; whenever the circumstances allow

obligations; nobody is questioning the it, you can order a specific performance; 2)

validity of the contract; nobody is saying, can ask for Resiliation of the Contract;

Judge I was ripped off; here nothing is wrong contract of successive obligations; not a one

with formation of the contract; there was an shot deal; a landlord owns a shopping centre,

offer, acceptance, consent on both sides; a shop keeper isn’t paying the rent, you can

everybody has agreed; the contract, like any never ever ever go to court and ask for

contract, gives birth to obligations, and this specific performance when it comes to

person has not fulfilled his obligations, so paying money; can’t ask the judge to tell the

you have to sue; first you send a letter, and guy, Pay the rent now, can’t use injunction to

then sue; in the law suite you point out which order pay money, you get a Condemnation,

obligations he failed to honour; comes to but can’t use specific performance,

court and says, He promised to pay the rent, injunction, to force somebody to pay rent;

3 months I’m waiting; not saying that the landlord says to judge, The tenant isn’t

contract is null, whether relatively or paying the rent, I have a mortgage to pay, if

absolute, you say the formulation of contract the tenant can’t pay me, I can’t pay them;

is good, but the person didn’t honour the Judge, resiliate the contract for future, we are

obligations, he is in breach to fulfill the things in 5 months of a 36 month lease, he has not

he promised to do; what can the victim do? 1) paid a cent; can’t ask for nullity, what’s the

Specific performance (SP)—when you ask for point; you want resiliation—cancel for the

SP you are asking the judge to order the guy future—plus you want (3) a condemnation
for the money owned, + (4) damages operate the restaurant full-time (7 days a

where you can prove it, punitive—very rare, week, you keep it open). Question: if Belcourt

moral—yes, material—yes! is getting the rent faithfully on the 1st of

month, why do they give a damn if they open

a contract which was never born—vitiated for 1 hour, 3 days?—> it’s for the image of

(nullity); contract was born, but the guy is the mall—the business concept of synnergy;

not respecting his obligations—Breach of Belcourt wants the restaurant because it’s

contract; two scenarios, different understood that the person going there for

ingredients; breakfast, on the way out, will go to

drugstore and buy something; movement

Golden Griddle is a large American franchise and traffic is what the landlord wants; every

of restaurants; in Canada this company has commercial landlord wants an anchor tenant

never done well, especially in Quebec; they (Provigo, Jean Coutu)—businesses that bring

decided to take a chance and signed a people in, and which enable the landlord to

contract with some franchisees; franchisees rent out smaller places; all shopping centres

undertook to operate the restaurant under follow this strategy; the franchisees they do

guidance and control and instruction of the their best, they put up all the posters GG

GG company; they needed to rent a space, supplies them with, but can’t make a go of it,

found a space owned by Belcourt; Belcourt and the franchisees go bankrupt; so GG has

said, GG is responsible for the lease, not the to make a decision, should they find new

local franchisees; both sides came to the franchises to install a restaurant or should

table with lawyers/accountants; a they simply close it down? They decide to

commercial lease was formed; in the lease, close it because it is obviously a non-starter,

an important stipulation/obligation— they have no faith in the restaurant’s

viability, they simply shut it down; but they days/hour, 100 of people would be inside the

pay the rent; they honour the obligation; but building, that’s not true; Belcourt was

now, Belcourt discovers that one of the supposed to enhance our business with

stores in the shopping complex is shut down; advertisements; they made all sorts of

they’re very concerned; other tenants say to promises and projections about future

themselves, if this guy couldn’t make it, am I success which turned out to be false; it was

next? 6 months have gone by, and the Belcourt which failed to honour their

landlord hasn’t found anyone, it means obligations; the judge came to the following

nobody wants to do business here, now I’m conclusion(!): when one party to the contract

worried; this is why Belcourt stipulates that comes to the court and says to the judge

you operate through out the whole time of there were misrepresentations on the other

the lease; GG says we’ll pay the rent, but we sides, we were induced into error, we would

won’t pay the utilities, etc; Belcourt sued have not signed the lease have they not

them; first they sent messages, then Belcourt tricked us, the 1st thing judge does is he looks

sued GG; Remember: Belcourt asked the at the actors, is this a case in which a poor

judge for a specific performance order; ask little guy embarking on business for the 1st

the judge to order GG to continue to sell time is sitting against an experience real

pancakes as they undertook to do; GG came estate company…no! Judge starts asking

to court and said, Judge, why should we keep questions…were these things clearly

the place open when Belcourt themselves are explained to the little guy, but here the judge

in breach of the contract; what has Belcourt says, when we look at the actors we find we

failed to do? They lied to us; they were are dealing with two heavy weights, a multi-

accused of misrepresentation of the traffic national American cooperation and a large

(1st argument)…they told us that on certain real estate cooperation both sitting at the
table with platoons of lawyer and chartered restaurant open, I cannot consider the

accountants; when the judge sees parties are question of hardship, because GG had ample

equals in terms of resources, strength, the time to review this clause, keep the store

judge will come to conclusion that 1) nobody open, they had lawyers, their own marketing

got screwed over in negotiations 2) if GG people, they could have looked at the clause

signs something that turns out to be bad for and said to Belcourt: All’s good, but this

them it’s an inexcusable error; don’t blame clause has to go, but they signed the deal;

Belcourt, look to your own people; the actors they were forced to stay open for the entire

have got to be examined; who am I dealing period of lease; GG also argued that there

with (1st question to ask; the judge himself); was no prejudice to the landlord…said, Judge,

so GG says, Alright, but judge, to forcing keep be reasonable, we are paying the rent, what

a bad business open 7 days a week will cause more do they want; Belcourt came back with

us unnecessary hardship, it’s bad enough a synnergy argument; key(!): in cases like

that we pay rent for an empty store…undue this the landlord doesn’t have to prove

hardship that what GG argued for; undue prejudice… where is the prejudice (damage)

hardship if specific performance was to the landlord? Judge says, I don’t care…the

ordered; the judge goes to Civil Code…it asks tenant has to honour his obligations; a

if there’s breach of contract? Yes…what are possibility of damages; landlord could say:

the remedies? is a specific performance a this restaurant was closed for 3 months,

remedy? yes….is SP a remedy which can be here’s our accountant who can prove we lost

realistically implemented? is this a case that this amount, etc; but once the parties agree

allows for SP? Judge says: Yes, as long as the to specific performance, once they undertake

parties agree to keep the restaurant open, as obligation, this remedy will take a form of

long as it is feasible for GG to keep that injunction…the judge will order the tenant
GG to remain in operation for the whole (5* = five star, important; 10* = very very

duration; hardship is not a factor; prejudice important)

is not a factor; prejudice can only favour the

landlord; (!) can’t collect money thru an

injunction; can’t say, Judge order this guy to

pay me…injunction happens quickly…if you

get an injunction, the restaurant will remain

open

HW: Fiachi case + Richard vs Time + p108 —

Article follow into 3 categories: 1) MUST 2)

SO-SO 3) Forget about it

Article 6—5*; Art6—5*; Art 13.71—5*;

13.72—essential; 13.73—5*; 13.75—7*;

13.78—absolutely; 13.79—5*; 13.80—5*;

13.81—5*; 13.82—forget; 13.83—so-so;

13.84—5*; 13.85—10*; 13.86—12*; 13.87

5*; 13.88 5*; 13.89 so so; 13.90 so so; 13.91

so so; 13.92 so so 13.93 5* 13.94 5* 13.95

forget 13.96 5* 13.97 forget 13.98 5* 13.99

10* 14.00 10* 14.01 10* 14.02 so so 14.03 so

so 14.04 so so 14.05 5* 14.06 5* 14.07 20*

(key) 14.08 forget 14.09 forget 14.11 5*

14.13 5* 14.14 5*