LESSON

9 negotiate, it’s take it or leave it…pay the monthly

bill, or we’ll cut off the gas, electricity: contract of

Article 6: every person is bound to exercise his adhesion—nothing to negotiate

civil rights in good faith; 13.72: obligation arises

from a contract…; contracts give birth to contracts with which we deal are contracts by

obligations; 13.75: similar to article 6 — the mutual agreement…mutual agreement implies

party shall conduct themselves in good faith; that the two parties are sitting down and

13.78: classic article…to know it is to understand negotiating and giving their consent to each and

the essence of contractual law…agreements of every aspect of the contract; both parties have a

wills…obligate themselves to perform a right to make offers, counter-offers…until

prestation (giving something)…prestation of the consent is given

seller is the thing he delivers to the buyer;

prestation of the buyer is the money; synallagmatic contracts (as soon as the contract

prestation—is what you have to give; 13.78 (2nd is formed each party has to give something to the

part)—…contract may be divided into contracts other)…there’s an obligation towards another…a

by mutual agreement… contract of adhesion— contract of sale — a synallagmatic contract…a

think in terms of hydro-Quebec, Gaz Met, purchase of car = contract by mutual agreement

etc…talking about utilities, they sell energy to the + synallagmatic; unilateral contracts = very

public…this contract means that there’s a rare…unilateral means one; a wealthy man

fundamental inequality between two players…in undertakes and promises to make a gift to

the contract which is signed with you, there’s JMSB…JMSB has no corresponding obligation…if

nothing to negotiate…they stipulate the terms the man of wealth says to Concordia, I will gladly

and the price…can’t sit down with them and say, donate 1 million $ to your school, if you agree to

I don’t really use electricity much, what if you build the library and name it after my

give me a 20%…they’ll say, No…nothing to grandfather…if the uni says, Fine we agree, it’s a

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deal, let’s shake hands, it’s no longer somebody has to pay to somebody…one has to

unilateral…what contract is this? => a contract give somebody something of value… gratuitous

by mutual agreement + synallagmatic; now we contract = contract in which one of the parties

have two obligations…obligation of the man of doesn’t have to pay…wealthy man wants to

wealth to hand over the sum and the obligation decide and asks nothing in return, and the

of the uni to build the library…if the uni takes the contract is gratuitous for the uni…

money, builds the library, and then decides not

to name it after the grandfather…does the man communative and aleatory = forget

have a remedy against the uni? => is the remedy

going to fall under that category of remedies that keep in mind: contract which has to be

follow nullity or we’ll he exercise the breach of performed immediately is a contract in which

contract? => breach of contract! … Question: is you pay for a sandwich in a restaurant

the man of wealth going to be able to ask for the

money back? => can he ask for specific a contract of successive performance = live in a

performance? can he ask for judgment? if the uni house which is not yours, sign a contract with

chooses to name the library after somebody else landlord…what’s your prestation to the

is there a possibility of damages? all of these landlord? - the money/rent; classic example of a

options are available…the contract does not have contract of a successive performance…not a one

to be annulled in order to ask for a shot deal…paying rent for an apartment -

refund…somebody sold you what you believed to successive performance

be 100K brown sugar, you open the bags, and it’s

white sugar…can you get a refund? of course… some contracts are consumer contracts; when

the Civil Code says this: 1) there’s a special

next provision: onerous and gratuitous (money statute/law in the province of Quebec (consumer

in the bank)… an onerous contract — in which protection act)…a statute which is devoted to

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things like used car sales…meant to protect 1379: non-negotiable…contract of

consumer who very often are not on the equal adhesion…take it or leave it…

footing with the merchant…remember: Civil 1380: synallagmatic…buy a burrito and pay the

Code makes an important provision (!): if the 2$

judge decides that it is a consumer 1381: each party receives an advantage in

contract…insurance policy for your house…a car exchange for his obligation…wealthy man and

rental…car lease…Civil Code says to the judge, uni library…pay the money, make the donation,

We got to protect the little guy…ensure that the and grandfather’s name is on the library…each

insurance firm knows all the nuances…but the side gives something (onerous)…

little guy who wants to paid in case of an 1382: forget about it

accident, what does he know? … receives a 1383: instantaneous performance (unimportant)

contract of insurance… and looks at it and it’s 17 1384: consumer contract — field of

pages long…small print…languages is obligation…legislation mentioned is the

incomprehensible…Civil Law says: if it’s a Consumer Protection Act…

consumer contract and there is a Question: GG company signs a lease with

paragraph/stipulation which is not 100% clear Belcourt for a restaurant space in a shopping

then the judge is supposed to interpret the centre…this is a classic example of consumer

contract in favour of the consumer…insurance contract…true or false? => FALSE… cannot be a

company knows what each of their articles consumer contract if you’ve got two business

mean…the little guy doesn’t know…the contract people dealing with each other … GG signs with

is produced as an exhibit in the court…judge Beclourt …it’s a commercial contract…however,

reads it…it makes no sense… the judge favours if the president of GG decides to lease a car to his

the little guy…applies the article to favour the daughter, that’s a consumer contract

consumer… 1385: important (read 10x)…capacity…unless in

addition the law requires a particular form to be

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respected as a necessary condition of its payment…agreed to a contract of hypothec…if

formation or unless …a solemn agreement; it you don’t pay to the bank, bank has various

says: a handshake will do the trick…will confirm choices: can take you to court and ask it to

the exchange of consent…if you’re signing a declare that the bank is the owner of the house

franchising agreement with Burger King or (as usually happens) they go to court and say,

whereby you undertake numerous This man owes us a balance of 73K on his loan,

obligations…successive nature…in exchange for he has not paid, we have a hypothec on his

advertising…the Civil Code says, Once you house, do this: order the house to be sold at a

exchange your consent with BB, it’s legal…the public auction…order a bail to sheriff to give us

only thing is that you got to be foolish not to put the proceeds of the auction sales…there’s no

it down in writing…you can agree to each point such thing as a hypothec on a handshake (!!),

in the contract…once you exchange consent, it’s a must be prepared by a notary…must be signed

deal, but put it in writing, so that everybody by the parties…must be registered at the

knows with clarity what each is supposed to Bureau…if Jean-Paul and TD agrees on a contract

do…Civil Code says you don’t have to put in of hypothec, will a handshake be sufficient to

writing, except if the parties insist for a more form a contract? NO!

formal agreement but it’s up to you, you can

shake hands…one contact in the Quebec…which 1386: demonstration, do something to show that

must be written, writing it is a prerequisite of its you agree

formation…over and above giving consent: a 1387: contract is formed when and where

contact of hypothec…a contact whereby the bank acceptance is received by the offeror regardless

lands you money, so that you can buy a of the communication used…trick question: X

house…you say to the bank, If you land me makes an offer to A whereby he offers to sell to A

money I promise to pay it back, and if I don’t his ’98 car for the sum of 32K, the offer is made

then you have my house to guarantee a in the form of a letter sent by the seller’s

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attorney asking for an answer within 24 hours, wrights back, Yes I’ll buy the car… Yes I’ll pay the

the offeree gets nervous…got 24 hours to money in 5 equal instalments…the offeror says, I

respond, he sent me the offer under the letter want payments to be made in 2 instalments…has

head of his lawyer, got to find a lawyer quickly to a contract been formed? No it has no been

accept appropriately…no such thing is necessary, formed, because the acceptance doesn’t

the Civil Code is clear…you manifest your correspond to the offeror…Civil Code says, Look

acceptance in any way you want to…email, fax, at it as a counter-offer, but it’s not a contract.. a

text, that will do it…all you have to do is to prove contract is formed when each element is agreed

two things: 1) the sending 2) the receipt; to…

obviously use method of com-n that will allow 1394: silence does not imply acceptance…

you to confirm a receipt; send the acceptance by 1396: forget

registered mail and ask post office for a follow- 1398: consent may be given only by a person

up, let them provide you for a record…if you who at the time of … is capable of buying himself;

don’t do these things…the seller is liable to say, got to have the capacity to sign a contract

What text message? don’t take a chance 1399: consent may be given only in a free

1388: what has to go into an offer; offer must manner; may be killed by error, fear, lesion; an

have essential elements; is it a lease or a inexclusable error… excusable error or

sale…what’s the price, when do you expect a inexcusable error should we look in the mind of

payment to be made, if there’s acceptance of a swindler or the victim? => always the victim;

each element then the contract is formed and yes, the crook did something that’s

you are bound by obligations that flow there inexcusable…what he did is unacceptable but

from that only relates to his obligation…the victim is

1389, 91, 92 : forget the one who wants the contract to be annulled

1393: important—acceptance not corresponding on the ground of error…if the mistake is

to the offer … the offer is made, the offeree excusable or not always look at the victim;

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swindler isn’t asking for the contract to be Civil Code says, Contract is null if the cause of the

annulled contract is specifically prohibited by law or

1401: fraud; Maleck vs Giroux; commit fraud contrary to the public order…prohibited by law

thru concealment, failing to disclose crucial facts — there’s a statute somewhere saying that this

14.02: forget act is illegal, but the cause may also nullify the

14.03: forget contract if its contrary to public order; cause

14.04: forget may be contrary to public order: there may not

14.05: lesion kills consent only in respect to be specific prohibition but the contract is so

minors (under 18) who have no legal capacity to outrageous and offensive to public morals that it

contract; and those who are under protective is deemed to be a nullity…

supervision (dementia, mental illnesses which 1417: absolute nullity

precludes their ability to give 1418: absolute nullity may be invoked by any

consent)…protective supervision which has been person having interest in doing so; (!)-> victim of

ordered by the court; fraud who asks that the contract be annulled

1406: lesion results from exploitation… because of lack of consent is asking for relative

1407 (!): a person whose consent was killed has nullity and he must ask the court for nullity,

the right to apply for annulment … he may claim otherwise it’s not gonna happen, but 1418 says

damages as well or apply for a reduction of his that when the cause of the contract is illegal or

obligation… legal remedy when the person who contrary to public order you can ask for it but

was ripped off but wants to keep the thing: the judge can declare it null on the bench…the

quanti minoris judge can say, I don’t have to hear nothing else,

1408: forget this contract is illegal, and then declares its

1409: forget illegal; relative nullity—got to ask for it; absolute

1411: prohibited by law, contrary to public nullity—the judge will declare it

order…such contract is null; Fiachi case; nuance:

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Fiachi case: the woman asked for relative agreed to partake of the scam and that is enough

nullity…she comes to picture because it’s a to nullify the contract absolutely…an absolute

decided that the contract shall be in her name so nullity; what does the judge do? a thief should

that her husband could collect the not prosper; the victim gets her deposit back, but

unemployment insurance…as a signatory to the gets no damages.

contract, it is she who asks for relative

nullity…Fiachi misrepresented the financial 1420: relative nullity of a contract maybe

success of the restaurant…it’s her and her invoked only by the person in whose interest it is

husband…the judge says, she was a willing established…(!) may not be invoked by the court

participant in a scam, whereby the government of its own motion; look at 1418 and 1420; one

would be shown one notebook and the truth deals with absolute nullity and relative nullity

would kept in the shelf…two cash registers; the (victim has got to come to the court and ask for

judge has a problem: a dishonourable person it)

should not be allowed to be enriched by his

dishonest practice, a thief should not be allowed 1422: rewind the movie…

to prosper…judge also has to deal with an

established jurisprudence of past cases…when a read 1425, 26, 27, 29, 32 — establish principals

contract is absolute nullity, neither party should of law which are based on common sense; if a

walk away with money…entitled to relief; the judge is not sure about what a particular

judge said, the victims were willing participants paragraph means, he has to look at the intention

in a scam which aimed to defraud the of the witnesses…has to listen to them,

government, so the judge refuses to give the determine what it is that they want; did they act

victim any damages, however, if he throws them as a buyer or seller, or does their behaviour

out of the courtroom, this means that Fiachi, the reflect a behaviour of a tenant and

scammer, gets to walk away with a deposit; they landlord…how they conducted themselves…if

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the meaning is clear, then there’s no need to look obligation; the creditor apart form his other

any further; it makes perfect sense; sale vs lease remedies can ask the judge to force the party to

1432: in case of doubt, a contract is interpreted do what he promised to do; GG vs

in favour of a buyer; meaning: if a paragraph in a Belcourt…when a creditor asks for specific

contract isn’t clear and the judge has to performance, he has got to prove to the court

determine what it means the judge will interpret without specific performance he will suffer a

it in such a way as to favour the person who prejudice…FALSE, no prejudice has to be proved

agreed to it; in all cases, it is interpreted in to ask for specific performance

favour of adhering party or the consumer — in 1599: forget

case of doubt, in a consumer contract, the 1601: question: what is the name which we give

consumer gets the benefit of the doubt; in a to court order which orders specific order:

contract of adhesion, in case of doubt, the little injunction; can an injunction be asked simply to

guy gets the benefit of the doubt get the money back? — no; specific performance

1433: a contract creates obligations… means an order to the shopkeeper to keep the

1438: forget shop open as he promised; what is the remedy in

1458: category of BREACH OF CONTRACT; which the creditor of the obligation asks judge to

discussed nullity, now talking about a case cancel the lease right here? -> legal character for

where nothing is wrong with the contract but such a remedy: resiliation (cancels the contract

something happens…one of the parties doesn’t for the future); are you gonna ask for resiliation

fulfill the obligations; which calls for immediate performance ..no point

1590: creditor has right to demand the for asking for one shot deal..resiliation makes

obligation be performed in full and properly; if sense when there’s a rent to be paid

the debtor fails to perform the obligation, the (successive); ask for resiliation and damages

creditor may without prejudice to his rights do (moral, monetary); all these damages can be

the following: force specific performance of the requested

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another form of damages: punitive; case of contract; there’s an obligation on both sides,

Richard vs Time Magazine; this case is all about therefore if X is getting the money, X has

consumer protection; Mr. Richard gets a letter; a obligations to deliver the car in a good condition;

wording induces him into believing that he now Y is the creditor, and X is the debtor; you are

already won money; Time Magazine says, any at once the creditor of the thing the other guy

person reading the brochure would have owes you, and you are the debtor to the thing the

realized that they didn’t win, Supreme Court other guy expects from you; a reciprocal

said, When we have to evaluate whether your ad agreement; obligations expected from both

false…take an ordinary person…sure, a lawyer sides; can’t sue someone for the next 25 years of

who read the brochure would have said, This is a life…damages have to be direct and immediate

lie; the ordinary little guy on the street that’s the

standard; punitive damage: set an example, 1621: a man falls on the stairs…is entitled for

establish a norm, disallow all others to act in a funeral damages…you don’t get punitive

similar manner, discourage companies which damages for falling…ask for moral, material

may have similar schemes to cease doing; damages, but you won’t get punitive because the

primary goal: discourage other people from law has to stipulate this…in consumer protection

acting in the same way act…there’s a provision that says a punitive

damage can be awarded; has to be stipulated; the

1607: when the Civil Code refers to a amount of such damages may not exceed what is

creditor…they use different words: in sufficient to fulfill their preventive (?) … don’t do

synallagmatic contract we are once and at the this again…amount of award can not exceed the

same time creditor and debtor; X sells a car to Y; amount required to achieve that specific purpose

price is 12K; X is the creditor and Y is the debtor

of Y’s obligation to pay the 12K; X is Y’s creditor HW: Giroux vs Maleck, Fiachi (p125) …

with regard to paying the 12K; a synallagmatic concentrate on: p132 top of page, in February

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1992 underline the paragraph, judge tells us why

victim is suing … go down page, heading called

Issues, judge says, Was her error, if any, an

excusable misunderstanding…wrongful choice…

read the paragraph; paragraph called Discussion,

talks about credibility; read 132 - 133 and 134;

bottom of page 138, makes specific reference to

1422, considering all the facts of this sad story…

read from bottom 138 to 140 bottom; Time vs

Richard too.

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