MOORE

This article is about the relationship between the LPC and the CCQ. The question is: should the LPC have been integrated into the CCQ or not? And what are the effects of having left it standing on its own?

__Section 1__

In 1866, there wasn't much thought given to equity in K law. Lesion for majors in matters of sale or of division of successions was taken away as a recourse. The idea was that it wasn't necessary to introduce equity into K law because of the old maxim of "qui dit contractuel dit juste." The idea was that because K reflects the will of the parties, and the realities of the market, we can assume that it is fair.

In 1974, we had reforms made to insurance law, and in 1973 we had reforms made to residential lease law, and in 1963, we had reforms of contracts involving credit. All of these reforms were integrated into the Code. So why, in 1978, did we not incorporate our consumer law reforms into the Code? This isolation of consumer K law, says Moore, is no longer useful.

__Is consumer K law an "autonomous" body of law, or is it based on the Code, or is it based on "Anglo-Saxon" law?__

Even in initial small-time reforms of consumer law in 1971, we see that Quebecois consumer law is heavily influenced by American law and Rest-of-Canada law. Traveling salesman law reforms, for instance, leaned heavily on already-existing laws from BC and SK.

Moore says that like many systems of consumer law, Quebec consumer K law is about making sure the consumer is better informed so that he can better protect himself against bad deals. This goal is achieved in 3 ways:

1. Though formalism and formailties -- like making sure that in certain cases, Ks can only be concluded when the parties sign off on them. 2. Through the introduction of a "cooling off period" for some sales (droit de dedit), within which a consumer can go back on his word and undo the sale 3. Through the introduction of forbidden consumer practices -- see art. 253 LPC

Guarantees: the legislator has recognized guarantees by K and by law. Now we have arts. 37 and 38, which say that a good has to be useable as far as its traditional function is concerned, and it must last for a reasonable period of time. Also, pursuant to art. 54, you can go after the manufacturer if you're taking an "action en garantie" These dispositions are important because they carve out some things from freedom of K and because they go against the principle of "relative effect" of Ks.

Lesion: Art. 8 seems to introduce lesion for majors in consumer matters, but it doesn't use the term. Moreover, the art. 8 based on 1040c of the CCLC, which imported "unconscionability" from an Ontario act. Was this a deliberate attempt on the part of the legislator to introduce the CML concept, which is much wider in scope? Is it that an explicit recognition of lesion between majors would contradict the CCQ? Whatever the answer, we see that consumer law is isolated and stands apart from the CCQ. This makes us question its connection to standard contract law. Moreover, lesion under the LPC has a very wide ambit (incorporates all of equity) whereas in the CCQ it does not...

Will of the parties: The LPC should not be interpreting as abrogating the will of the parties in K. Rather, the introduction of "cooling off periods" and formalities and the like is about protecting consent. The fact that consent is a primary concern of the LPC means that at least in some sense, it is connected to the standard K law in the CCQ. The sanctions for breaking the law of the LPC also link it to the CCQ.

Art. 253 of the LPC has been interpreted as "completing" the law of intentional fraud by reversing the burden of proof -- unlike in art 1401, you don't have to prove that but for the fraud, you would have contracted otherwise or not contracted -- this is presumed in the LPC. Again, the legislative influence here comes from other provinces.

Art. 13 of the LPC says that you can't ask a consumer in default for anything more than the price of the good plus interest. But this has been so restrictively interpreted that Moore says it has been stripped of all meaning. Had this article been more clearly linked to the standard law of Ks (i.e., had the LPC been incorporated into the CCQ), we would not have this problem.

LPC is also isolated by its vocabulary and not just its place outside the CCQ. See above notes on art. 8.

So is the LPC an "autonomous" body of law? Some say yes -- the unique language leads you to "read" situations differently. Others say it's specific but not autonomous. It has a specific function (consumer protection) and it is multi-disciplinary. But because it has a specific aim and applies only in certain contexts, it cannot be said that it is a truly autonomous body of law.

__Section 2__

The main idea here is that the LPC contributes to our understanding of standard K law. It has had such an influence that it might be argued that it should disappear and be integrated into the CCQ.

__Many LPC articles have already been integrated into the new code__:

-art. 1401, al. 2 is clearly a codification of art. 253, which says that no merchant, manufacturer or advertiser may fail to mention an important fact in any representation made to a consumer

-art. 8 of the LPC influenced arts. 1405 and 1406 of the Code. The Code uses the same phraseology, even though the presumptions are different (absolute under the LPC, "simple" under the Code). It also influenced these articles in the sense that it provides for two kinds of lesion: objective and subjective. Authors have stated that the concern with the CCQ was that subjective lesion between majors would open the door for lesion too wide. J-L Baudouin said that we don't want to be treating consumers like minors. But Moore says that this does not explain why objective lesion between majors was done away with -- objective lesion has to do with the deal itself and not the parties making it. So the LPC had a counter-productive influence in this sense.

-other influences: 1785 CCQ: "cooling off period" (you have to sign a promise to buy and have 10 days to revoke it) for home sales. 1436 CCQ: codified art. 25 LPC which says Ks must be clear. The spirit of 10 LPC is found in 1474 and 1475 CCQ: all of these articles deal with restricting the application of exclusion of liability clauses. 1432, which says that we interpret clauses in favour of the adherent is an importation of article 17. Similarly, 1730 (guarantie contre les vices caches) extends LPC 53 to all of K law. We also see that 142 LPC ( If, upon his default, the consumer has already paid at least one-half of the amount of the total obligation and of the down payment, the merchant cannot exercise his right of repossession unless he obtains the permission of the court) is codified in many places in the CCQ.

In France, consumer law "revived" K law. The same can be said for Quebec -- we have a "new contractual morality" based on good faith, which is now one of the foundations of K.

Moore ends with questions: When a professional buys something for his business, and that thing has nothing to do with his field of expertise (I run a hardware store and buy a printer for the office), should he benefit from the LPC? What about moral persons -- should they benefit? Should consumer protection extend to all Ks where there is economic and informational vulnerability (as there is in a sale)?

He seems to be arguing for an end to consumer K law at the end -- he says the rules should be replaced to apply to all Ks of adhesion or all Ks where there is asymmetry, inequality or vulnerability in the K. As Beauchard asks: "if the rules are that good and fair, why limit their application to consumers?"