Prévost-Masson+c.+Trust+Général+du+Canada


 * Pr****évost-Masson v. Trust-Général du Canada, 2001, SCC**

Note: The case quickly gets complicated because the two main parties to the case, Perras and Masson, have died. They are representated in court by their heirs or successions. To simplify, I will simply use "Perras" and "Masson" because the legal issues remain the same. If you do read the case, know that there are often people acting on behalf of either Perras or Masson.

- Perras sold land to Les Castels and its two shareholders (Céré and Pelletier) in 1988. - In 1989, Les Castels resold the land to 2639-1525 Quebec Inc. (hereafter "2639"), which has two shareholders (Weinberg and Roy). - Les Castels had not finished paying the sales price to Perras. 2639 agrees to finish paying the remaining balance of the sales price to Perras. - Perras asks 2639 to pay the difference immediately. He asks his accountant, Masson, to write up the remaining balance. - Masson makes a mistake, and bills 2639 for an amount short $170K of the real price. - Weinberg and Roy see the missing $170K but do not mention it. They pay to Perras only the amount Masson wrote. - Masson realizes his error a few months later. He prepares a new amount due, taking into account the $170K. 2639 refuses to pay, saying that the parties consented to pay $170K less by agreement. - Perras sues Les Castels, Céré & Pelletier, 2639, and Weinberg & Roy for failing to meet contracted obligations in the act of sale; and sues his accountant Masson for professional fault.
 * Facts:**

__**Definitions**__: [The case ratio is basically to explain the difference between these.]

Ex: the delivery of a painting. Money is always divisible.
 * Indivisible obligations (cf. CCQ 1519 ff.):** An obligation is indivisible if it is expressly stipulated so, or if, by its nature, it is not susceptible of division.

Ex: Two hunters shot A. It is not clear which did it, but likely it is B. B owes 60% of A's injuries, and C owes 40%. A can claim 100% of his injuries from either A or B.
 * Solidary obligations:** The object of the obligation is divisible. Many debtors __owe different fractions of the total debt__. The creditor can ask any one of the debtors to pay the full sum of the debt to him, and the debtors will settle between themselves (ie: sue each other later) about how to divide it up afterwards.

Ex: Masson's professional fault (__extra-contractual__) caused Perras to lose $182K. 2639's failure to pay the sales price (__contractual__) caused Perras to lose $182K. Both faults individually, independently caused Perras a loss of $182K. Both Masson and 2639 caused the total damage ($182K). Perras can sue either Masson or 2639 for all $182K. Whoever he sues can sue the other party later.
 * Obligations** //**in solidum**// **(cf. CCQ 1523)** //**:**// The object of the obligation is divisible. Many people owe the __//whole debt// (not a fraction of it), but for different juridical reasons__.

NB: The difference between "in solidary" and "in solidum", again: "in solidary" -- each party caused a FRACTION of the debt "in solidum" -- each party caused the TOTAL of the debt, by different juridical acts, but on the same object.

//Superior Court of Quebec:// - Condemns Masson as well as Les Castels, Céré & Pelletier, 2639, and Weinberg & Roy to pay solidarily $206K to Perras. - Finds the **__debt to be solidary__**.
 * Lower courts:**

//Court of Appeal of Quebec:// - Weinberg & Roy didn't have a personal obligation towards Perras so don't have to pay themselves the $206K. - Les Castels, Céré & Pelletier, 2639 still owe $206K, as does Masson. - Finds the __**debt to be indivisible**__.

The only person contesting the Court of Appeal decision is Masson. (1) There was fault on the part of Masson, but are there the other elements of tort (injury and causation)? (2) Is it fair to have Masson pay solidarily or indivisibly $206K? Shouldn't Masson only pay the $182K he was originally responsible for? (This price difference, at the time of the SCC trial, with inflation, between the $182K and the $206K is a difference of $300K to $600K.)
 * Issues:**

(1) - It is not disputed that there is fault on the part of Masson. - Masson argues there was no HARM since at the time of trial Perras had not yet sued 2639 to recover damages. Perras, the victim, should have done his utmost to minimize his harm, so he should have tried to recover the debt from his creditor 2639 first. - The judge says this is false. The quittance (agreement) given by Masson to 2639 explicitely said "this agreement cancels all other debts". So at the time of trial, Perras had no credit in his favour from 2639. - The harm was: Perras had lost his credit of $182 owed by 2639 due to Masson's fault.
 * Reasoning (LeBel J.):**

- Perras states that Masson is trying, through (2), to resuscitate the old theory by which a professional negligence claim is always secondary to a contracts claim. With that theory, a person had to sue all his debtors before he could sue his notary or accountant for professional negligence. - This theory has been abandoned. An appeal can be made as soon as the existence and amount of damages are shown.

(2) - The law of obligations has two aims: (a) to have a creditor paid quickly (so it's good to have many possible debtors who can pay) (b) to make sure there is no double-indemnity.

- __**The obligation is NOT 'indivisible'**__ (as stated the Court of Appeal). To be indivisible, the obligation has to involve an object that, by its very nature, is not susceptible of division. (Ex: a painting to be delivered.) The obligation to pay money can be divided, by its very nature. - __**The obligation is NOT in passive solidarity**__ because the money comes from two different sources. Solidarity is for when each debtor owes a fraction of the total debt, not the whole debt. - __**The obligation IS**__ //__**in solidum.**__// - In solidum obligations were created to solve the problem when debts were diverse but concurrent, when the object was, at least in part, the same. - These obligations exist in Quebec law. They allow a creditor, harmed by many injuries, to sue any one of the debtors for the total amount. Treats the case when two debtors owe the same amount of money, but due to different juridical acts. - Masson owes $182K from a delictual obligation (professional negligence). 2639 owes $206K from a contractual obligation. The two debts have the same object. - Perras can sue Masson for the totality of $182K. Masson can then sue 2539 to recover part of this. - 2639 alone owes the remaining $24K ($206K - $182K).