Civil Law and Common Law

1

• Civil Law and Common Law
• International Study Center
• Queens University
• Class 2
• Michelle Cumyn
• Professor, Laval University, Quebec City
• michelle.cumyn_at_fd.ulaval.ca

2
Objectives of todays lecture

• Definition of an obligation. Structure of the law
  of obligations. Where to find the rules on
  contracts
• Formation of contracts
• Effects of contracts
• Remedies for non-performance
• Effects of contracts regarding third persons

3
Constituent elements of an obligation (art. 1371,
1373)
1. Creditor
3. Prestation
2. Debtor
4. An obligation confers on the creditor the
right to demand that the obligation be performed
in full, properly and without delay (art. 1590).
4
Book 5 Obligations

• Title 1 Obligations in general
• Chapter I General provisions
• Chapter II Contracts
• Chapter III Civil liability (see next class)
• Chapter IV Certain other sources of
  obligations (unjust enrichment)
• Chapter V Modalities of obligations
• Chapter VI Performance of obligations
• Chapter VII Transfer and alteration of
  obligations
• Chapter VIII Extinction of obligations
• Chapter IX Restitution of prestations
• Title 2 Nominate contracts

5
Book 5 Obligations

• Title 2 Nominate contracts
• Chapter I Sale
• Chapter II Gifts
• Chapter III Leasing
• Chapter IV Lease
• Chapter VI Carriage
• Chapter VII Contract of employment
• Chapter VIII Contract of enterprise (building
  contract) or for services
• Chapter IX Mandate (agency)
• Chapter X Contract of partnership and of
  association
• Chapter XI Deposit
• Chapter XII Loan
• Chapter XIII Suretyship
• Chapter XV Insurance
• Chapter XVII Transaction (settlement out of
  court)
• Chapter XVIII Arbitration agreements

6
General provisions on contracts (Title 1, Chapter
II) vs. nominate contracts (Title 2)

• 1377. The general rules set out in this chapter
  apply to all contracts, regardless of their
  nature.
• Special rules for certain contracts which
  complement or depart from these general rules are
  established under Title Two of this Book.

7
Suppletive vs. imperative law (rules of public
order)

• 9. In the exercise of civil rights, derogations
  may be made from those rules of this Code which
  supplement intention, but not from those of
  public order.

8
Abusive clause in adhesion or consumer contract

• 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
  not in good faith in particular, a clause which
  so departs from the rules normally governing the
  contract that it changes the nature of the
  contract is an abusive clause.