J.+PINEAU

__**"Brefs propos en l'air sur les avatars de la responsabilité contractuelle" par Jean Pineau**__ (in QUEBEC) pp. 101-08 du recueil de textes

__Introduction__ Will deal with the question of extracontractual responsibility versus contractual responsibility.

It used to be in Quebec that injury resulting from intentional inexecution of a contractual obligation led to delictual or quasi-delictual responsibility. e.g.: a taxi driver injures a passenger. The law saw only the delict, and ignored the contract between them. The extracontractual responsibility sphere was very large, and the contractual sphere much more limited.

Then came a time when the contractual relationship between the driver and passenger was noticed. A distinction began to be made also between 'obligation of result' and 'obligation of means'. Responsibility became a unitary notion with, however, a duality of regimes: delictual and contractual.

Rémy (doctrinal author in France) has questioned this attitude, stating that contractual responsibility is a false concept - that a debtor is not "responsible" for not performing an obligation but rather that an unsatisfied creditor is simply forcing execution or payment. -- Rémy is a big name in France, and sparked controversy. -- French authors deplored, not the falseness of the concept but the "forçage du contrat", enlarging of the contractual field to include obligations which weren't in the contract itself. e.g.: a train driver is responsible for a train passenger falling inside the train station, and not only inside the train. This is reading a lot into their contract. -- There was a reversal: first, the ECO sphere was invading the K sphere. Now, the K sphere is invading the ECO sphere. -- Obligation of security and duty to inform were implanted into K sphere with much difficulty. Now these have been brought back into the ECO sphere because of a general obligation to act prudently. It is a return in the 21st century to the 19th century, ignoring all the hard work of jurists in the 20th century.

There had been much less "forçage de contrat" in Quebec than in France because Quebec was slower at displacing ECO regime with K one. The Quebec approach was working so well that it was legislated in CCQ 1457 and 1458 (unity of responsibility, duality of regimes). -- However, doctrinal author Fabien questioned the duality of the regimes, saying that the presumptions of responsibility in ECO should play a role in contract.

__I. Sur l'élargissement du contrat__ - It is clear that in France the "forçage du contrat" went too far. If a train driver is responsible for a passenger in the train station, is he responsible for the passenger from the time she purchases a ticket to the time she arrives at destination, even if she goes home to get her bag? - But a train driver should be responsible if the seat the passenger sat on in the train broke. - The question is: where to draw the line between what is related to the contractual obligation and what is too distant. This is similar to a test for causal link. - **All harm closely related to the accomplishment of the contractual obligation and under the control of the contracting party should be in the sphere of K responsibility**. - To try to remove obligations of security and duties to disclose from the contractual sphere back into the ECO sphere does not lead to simplicity. Often a contractual obligation entails an obligation of security, if it is a dangerous object contracted for. A duty to disclose can be comprised in a K too, to know the extent of ones contractual obligation. Contractual error is the result of failed duty to inform. Even if the duty to inform preceded the contract, it could lead to error or fraud. This should be treated as contract and not brought back to ECO just for intellectual satisfaction.

__II. Sur les présomptions de responsabilité extracontractuelles__ - Arts. 1457, 1458 CCQ indicates that fault, injury and causation are identical in K and ECO responsibility. The notion of responsibility is united. - However the regimes have a duality. ECO responsibility can only be applied when there is no contract at all; while K responsibility is applied when there is a contractual obligation. - The CCQ states that contractual parties cannot opt out of the K responsibility regime in favour of more favourable rules in ECO responsibility. - How then can presumptions of responsibility operating in tort (such as articles 1465-69) apply to the K setting? And how can this be qualified as a //unified// regime of responsibility?

Example: // 1466. The owner of an animal is liable to reparation for injury it has caused, whether the animal was under his custody or that of a third person, or had strayed or escaped.// Case (a): a pedestrian run over by a stray horse Case (b): an equestrian who rented a horse is thrown off the horse -- If the presumptions of responsibility applied to the contractual situation, the plaintiff could recover through ECO in both situations, or cumulate his ECO and K claims.

- 1465-69 are entitled 'Du fait des biens' instead of 'Du fait des choses' - they're directly from the CCBC which dealt exclusively with ECO responsibility. - 1465ff. CCQ are //exclusively ECO responsibility and not K responsibility.// - Legislative will is for duality of regimes and absence of choice between te two. Allowing the use of the presumpions in 1466-67 in a contractual context would be opting for ECO rules, contradicting 1458, para. 2. - 1468 explicitly mentions "a //third party//". There is an equivalent in the K'al regime (CCQ 1442, 1730), but these are distinct. - The dispositions relative to 'fait des biens' do not have a 'portée générale' into Ks. - 1465 requires 'le fait //autonome// de la chose' - it doesn't apply to context where man's hand is behind the situation. - Some say it is unfair that two people identically hurt are treated differently based on whether they were linked or not by a contract to the author of the injury. Answer: the regimes of compensation have been disparate forever, and they will never be equal. It is without doubt preferable to be the victim of surgery than of a car accident.

- During the CCQ reforms, there was a bill passed to hav ea single regime of responsibility. There was uproar in the legal community. Even though it's great to treat victims equally, the rules are not so simple and there is possibility of insurance that one musn't forget. - Besides compensation, are the ECO presumptions so favourable to the victim as that? Contracts can include 'obligations of result' for which a creditor has a right to be compensated unless the debtor proves 'force majeure'. But most contracts are 'obligations of means'. Having one single responsibility regime means making 'obligations of result' and 'obligations of means' have the same compensation. - ECO responsibility is not so great for victims: it rarely compensates the family of a victim.