Jobin,+Amputer+la+responsabilite+contractuelle?

This article argues against the thesis of Remy (France) and Gardner and Moore (QC) that says that we should abandon the idea of implicit K obligations. They say we should limit K liability to the payment of the value of the replacement of the principal obligation of the K. All other liability should be dealt with extra-contractually. What's their reason for saying this? It's that the ambit of implicit obligations of K in France has become far too wide.

Jobin says that's alright for France, but in Quebec we don't need to take this approach. He says the structure and historical development of the CCQ doesn't allow for this.

Jobin says that in the CCQ, the two kinds of liability are integrated, and nothing prevents recourses in K for boldily and material prejudices (see art. 1458).

In France, during the industrial revolution, all that could be relied on for delictual liability were general dispositions on fault -- it was often really hard to meet the burden of proof. They had responsabilte du fait des choses, but that didn't cover everything either. Statutorily all they had was a Loi sure les accidents du travail. So for a lot of contexts, there was no recourse but to a new legal creation -- the K-al obligation of security. In Quebec, we had similar problems -- but they were not as serious. So we didn't have to make the obligation of security as wide. In France, the obligation got so wide as to create confusion on two fronts: first, on the question of whether or not we are in a K case or a delicts case. Second, on the question of the intensity of the obligation: obligation of means, result, or guarantee? Remy says things got all mixed up. But that was not the case in Quebec because the obligation was not as wide -- courts have resisted the temptation to expand it. Notably, French courts are starting to take a more restrictive view.

In QC, when we are dealing with transportation, rentals, and in some other areas (sports), it is more advantageous to sue in K. But our judges, unlike French judges, do not see Ks everywhere. We're also not wishy-washy about whether claims are contractual (the only area where this has happened is medical liability). So what this means is that unlike in France, we can't say that jurisprudence is causing confusion.

One example of how the implicit obligation of security got too wide in France relates to protection of the interests of the buyer. In France, every seller has to guarantee the safety of his product. In QC this is not the case.

One common point between QC and FR is transfer of guarantees of security from buyers to sub-buyers. The SCC imported this rule from FR in GM v. Kravitz. But Remy's criticism about this going too far cannot be applied in QC, because shortly after the government codified the SCC decision. So it was the legislator, not jurisprudence that ultimately was responsible for expanding the scope (this seems a bit bogus -- we learned last year that the SCC was clearly the impetus for codification -- it would not have happened without Kravitz).

Third parties: FR has an obligation to guarantee the security of the buyer and 3rd parties. Not so in QC. Thus, Remy's criticism of "overbreadth" does not apply here.

Jobin makes the point that Remy's view rests on the idea that extra-K liability is best. That's not so. Take for example, transportation. In XK liability, you would have to go through the whole 1457 process, but in K -- you can rely on 2037 which is much more favourable and gives you a better chance of recovery. In rentals -- same deal. You could rely on 1465 or 1467, but 1854 and 1912ff. are much more favourable. So we needn't necessarily go to XK liability to have a good chance at getting indemnified.