McGILL LAW JOURNAL
Volume 19
Montreal
1973
Number 4
Cause in the Quebec Law of Enrichment
Without Cause
J. David Fine *
INTRODUCTION
Articles 1041 and 1042 of the Quebec Civil Code ‘ introduce the
chapter “Of Quasi-Contracts”. It is in the title “Of Obligations”, in
the book “Of the Acquisition and Exercise of Rights of Property”.
This chapter of the Code lists two nominate quasi-contracts,
relating to the voluntary management of another’s business 2 and
the reception of a thing not due.3 Both of these existed as sources
of civil obligations in Roman law and continued to be so recognized
in most of the traditional legal systems extant in France up to the
codification and unification of French civil law in 1804.4 Texts
similar in both format and meaning to articles 1041 and following
of the Quebec Civil Code appear in the laws of France,5 Belgium,6
* B.S.F.S., Georgetown University School of Foreign Service; LL.B., McGill
University. Of the University of Windsor Faculty of Law.
I Hereinafter cited as “C.C.”.
2 Art. 1043 through 1046 C.C., entitled “Negotiorum Gestio”.
3 Art. 1047 through 1052 C.C.
4The fullest explanation of this development from the Roman era up to
the French codification appears to be that of Toullier, 11 Droit Civil Frangais
5th ed. (1830), 23-29, ss.15-21.
5Art. 1371 through 1381 C.C.F.
6 Art. 1370 through 1381 C.C.B.
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[Vol. 19, No. 4
and Louisiana. 7 All appear to follow from the formulations of the
Projet du Code civil des Frangais.8
Each of the two named quasi-contracts in the various codified
civilian systems is of a severely limited scope. Like the ancient
forms of action of the common law, these texts only give rise to
obligations justiciable in the law courts upon the fulfillment of
their respective time-honoured, enumerated conditions. 9 The exacti-
tude of pleading required to succeed in negotiorum gestio, for
example, before Quebec courts today probably is much the same
as that which would have been demanded by the French royal
courts of justice three centuries ago; it cannot be much less than
that demanded of a pleader in indebitatus assumpsit in the days
of Lord Mansfield. The plaintiff seeking recompense can qualify
to plead negotiorum gestio only if he has assumed the management
of some business of his own accord without the knowledge of its
owner during the owner’s incapacity. He must also have managed
it throughout in a prudent manner.10
The general introductory words of articles 1041 and 1042 C.C.
read as follows:
Art. 1041. A person capable of contracting may, by his lawful and vol-
untary act, oblige himself toward another, and sometimes oblige another
toward him, without the intervention of any contract between them.
Art. 1042. A person incapable of contracting may, by the quasi-contract
which results from the act of another, be obliged toward him.”
Since at least the 1892 Arr~t Boudier of the Cour de Cassation
in France, 2 and the 1929 decision of the Supreme Court of Canada
in Regent Taxi & Transport Co. v. Congregation des Petits Fr~res
de Marie,13 there has been judicial recognition at the most authori-
tative level of the proposition that an alternative source of civil
obligations, 4 most probably founded in the Code chapter “Of Quasi-
Contracts”, exists in the principle of enrichment without cause.15
7 Art. 2293 through 2331 C.C.La.
sAn II, 6dition officiel, 1804.
9 What follows in this paragraph is only an abbreviated attempt to sum-
marize the Quebec Civil Code provisions in point. For an excellent though
highly involved discussion of the requirements of the action in negotiorum
gestio in the law of France see Laurent, 20 Principes de Droit Civil 5th ed.
(1893), 341-68, ss.310-340.
10 Art. 1043, 1045 and 1046 C.C.
11 Cf. art. 1371 C.C.F., art. 1370 C.C.B., and art. 2293 and 2294 C.C. La.
12 16 juin 1892, S.1893.1281, D.1892.1.596.
13 [1929] S.C.R. 650, especially the dissent of Mignault,J., 689-92.
14 Per art. 983 C.C.
15 See also the early Privy Council appeal from Quebec in Price v. Neault
(1887), 12 App. Cas. 110, 115; 13 Q.L.R. 287.
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
Regardless of the juridical source for this species of obligation, as
conceived in the minds of doctrinal writers a posteriori,8
this
creature of the jurisprudence, the obligation arising because of an
enrichment without cause, can be said to arise in any situation
manifesting four broadly described factors.’1
Though formulated in different words, most authorities find
these enumerated conditions must exist to found the action:
(1) An enrichment of the defendant;
(2) an impoverishment of the plaintiff;
(3) a correlation between the enrichment and impoverishment;
and
(4) an absence of a civilly valid cause for this factual corre-
lation.1
It is submitted that the first three requirements are of fact, not
of law; in effect they merely require that the parties before the
court be those actually having a justiciable controversy inter se.
These factual criteria assure that an interested plaintiff has im-
pleaded the right defendant.
Such preliminaries aside, the respective courts in the reported
cases have had to deal with the sole legal issue between the various
parties. They have had to decide, for a given plaintiff to succeed,
whether or not his impoverishment and the commensurate enrich-
ment of the defendant sprang from a common source –
a source
which ranks as a cause of obligations that is held valid in the
positive civil law.
This cause, which bars the action de in rem verso 19 of the
plaintiff, may come into existence at either of two points in time.
First, the legal relationship between the parties may have provided
the cause for a resulting enrichment/impoverishment co-relation-
ship. For example, a delict may have been committed by the plain-
tiff against the defendant, and the former accordingly may have
given the latter a rightful recompense. Second, some legal relation-
10See especially the conclusions and evaluations of others’ theories in
Challies, Doctrine of Unjustified Enrichment in the Province of Quebec 2d ed.
(1952), 56; and Gendron, Nature de l’enrichissement sans cause, (1962) 5 No. 1
C. de D. 104.
17 Most writers also add that there cannot be available to the plaintiff some
other cause of action; see Jean-Louis Baudouin, Les Obligations (1970), 222,
s.425, n.672.
‘8 E.g. Paul Esmein et al., 2 Obligations; volume 7 of Planiol and Ripert,
Traitd Pratique de Droit Civil Frangais (1954), 56-57, s.756.
19 The term from Roman law used to designate (if not to describe) the cause
of action for an enrichment without cause in modem civil law.
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ship may, at the operative moment, afford the plaintiff a cause
of action against the defendant. An example of this would be found
in the non-fulfillment by the defendant of his duties towards the
plaintiff under a synallagmatic contract between the parties.
The following pages will analyze the manner in which the courts
have dealt with this elusive concept of cause in dealing with those
situations in which all of the purely factual criteria have been
established to exist by the party seeking recompense for another’s
enrichment, which is allegedly without cause, past or present. The
idea of cause, this central theme in the action for enrichment with-
out cause, will be seen to play a determinative role in situations
ordered into the following categories of legal relationships:
I. Cause in a Civil Obligation.
A. Valid Contract Inter Partes.
B. Illicit Contracts.
C. Ineffective Contracts.
II. Cause in Other Situations of Gain.
A. Obligations Imposed by the Civil Law.
B. Obligations Imposed by the Public Law.
C. Unintentional Enrichment of a Defendant.
D. Gifts and Officious Acts.
III. Additional Sources of Cause.
A. Natural Obligations.
B. Custom.
IV. Relativity of Obligations.
A. Cause and the Stipulation Pour Autrui.
I. CAUSE IN A CIVIL OBLIGATION
A. Valid Contract Inter Partes
Though the Quebec Court of Appeal avoided the issue in a 1962
decision, 20 a later case required it to declare that the presence of
a contractual obligation proven to exist between the parties and
giving rise to the established co-relationship of impoverishment and
enrichment precludes the giving of judgment for an enrichment
without cause.”1 This ratio decidendi of Godon v. Dame Perault22
2oVille de Sept-Iles v. Tr~panier, [1962] B.R. 956, 958, per Taschereau,J.
21Godon v. Dame Perault, [1968] B.R. 877, 879. (An unpaid workman’s
action de in rem verso against a proprietor for enrichment without cause was
barred by the finding that the proprietor was also the workman’s co-con-
tractant.)
22Ibid.
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
provides authority in Quebec’s positive law for a proposition un-
questioned in other civilian legal systems23 and accepted by Que-
bec legal writers.24
Notwithstanding this basic principle, at least three reported deci-
sions of Quebec courts have allowed claims in de in rem verso actions
while recognizing the existence of valid bilateral contracts govern-
ing the parties’ relationships. In one dated case a questionable
award –
affirmed on appeal as “having rendered perfectly justice
to the parties”2 5 –
gave a man of full age an extra sum for work
done on a parish church pursuant to a notarial contract with the
local fabrique. In essence, it is submitted that the decision saw
the Court of Appeal disregard the strictly drafted lesion provisions
of the then three-years-old Civil Code.
Two puisne justices of the Quebec Superior Court appear, with
all due respect, to have offered meaningless chants of “enrichisse-
ment sans cause” in cases clearly determinable under the law of
contract. They thus betrayed gross misunderstanding of the actual,
precise meaning and scope of the term. In one case, almost half
a century ago, a defendant’s husband had a plaintiff install a cen-
tral heating system in her building. This was done as part of a
scheme to renovate and convert the building into a “maison de
rapport”. The learned judge began by finding for the plaintiff in
contract: “Considdrant qu’il est notoire pour les parties que la dite
vente se faisait pour le bingfice exclusif de la d~fenderesse…. 26
It was added for good measure –
perhaps it should be read only
as an obiter dictum –
that the case could be solved too by mere
reference to the simplest rule of law: “Considdrant que plusieurs
dispositions du Code civil, consacrent ce principe d’iternelle iquiti;
‘Nul ne peut s’enrichir aux ddpens d’autrui’ “27
Gratuitous use of such homilies, in these and other similar
cases,28 does not alter the following conclusion: all sound Quebec
authority affirms the principle that proof of enrichment pursuant
23 E.g. Algemeene Bankvereeniging en Volksbank van Leuven v. Crddit
Lyonnais, Tribunal d’arrondissement de Luxembourg, 30 janv. 1932, Pas. 1933.
126, 128d; aff’d, Cour d’appel de Luxembourg, 7 avril 1933, supra, 130c.
24 Baudouin, supra, 225, s.431-432, n.687 and 689, and authorities cited therein.
25 Fabrique de Ste-Julie de Somerset v. Paquet (1869), 1 R.L. 430, 432; 20
RJ.P.Q. 353 (CA.).
20Gurney-Massey Co. Ltd. v. Dame Godreau (1925), 63 C.S. 294, 295 per
Bruneauj.
27 Ibid.
28 See also Ostiguy v. Coopgrative de l’glectricitd de l’Ange-Gardien et St-
Alphonse, [1947] R.L. 31 (Cousineau,J.); phrases like “dquivalent a” make it
difficult to grasp the precise meaning of the learned judge’s opinion.
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to a valid bilateral contract is preclusive of an action for enrich-
ment without cause.
The Civil Code provides that consent to a contract may arise
by implication.2 9 It follows then that facts establishing a defendant’s
implicit consent to a synallagmatic contract which impoverishes
the plaintiff through expenditure of professional skill and time,
while also leading directly to the defendant’s enrichment, would
cause a court to declare the plaintiff’s right to recover in contract.
No action would lie for enrichment without cause The impor-
tance of this distinction would relate to quantifying the plaintiff’s
damages: is he to receive an award for enrichment without cause,
limited to the amount of the defendant’s benefit and his own loss,
or the full measure of the implied promise of payment? (Needless
to say, this same difference as to quantification of damages applies
as -regards any contractual action, contrasted with the action for
enrichment without cause.)
If Quebec’s jurisprudence be devoid of serious consideration
about why the same facts cannot give rise to rights in both con-
tract and enrichment without cause, there has accumulated judicial
opinion on an allied matter of something less than overwhelming
profundity, viz. whether or not both contract and enrichment with-
out cause may be pleaded in the alternative in the same action.
The score in terms of reported Superior Court cases stands at 4: 1,
with one tie. Four judges have rejected such double-pleading out-
right, on the basis that the notions are “absolutely incompatible
the one with the other, as the action de in reni verso precludes
the existence of any contract”.3 1 One (unreasoned)
judgment fa-
vours allowing pleading in the alternative. 2 Yet another judgment
allowed the alternate pleading only because the defendant had
failed to raise a timely dilatory exception 3 3 –
even though the
presiding judge had commented on their “absolute incompatibility
the one with the other” only two years earlier.8 4 The Court of
Appeal, faced with an award supposedly founded in both contract
29 Art. 988 C.C.
3 Cardin v. l’Archevgque, [1947] R.L. 157 (Duranleau,J.).
3′ Challancin v. Guilbault (1956), 60 R.P. 160, 162 per Brossard,I.; followed
in Active Business & Realty Co. v. Ziss, [1963] R.P. 426. Similarly, see the
reasoning of Ouimet,J. in Bddard v. Bddard Transport Co. Ltde, [1960] C.S.
472, 475; followed in Epiceries Modernes Ltge v. Chaikin, [1961] C.S. 155
(St-GermainJ.).
32 Langlois v. Labb
33 Mailloux v. Commissaires d’icoles de la Municipalit6 du Village de St-
(1914), 46 C.S. 373, 377 per Lafontaine,J.
Cisaire, [1958] C.S. 577, 579 per Brossard,I.
u Cf. Challancin v. Guilbault (1956), 60 R.P. 160, 162.
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
and enrichment without cause in a 1962 case, failed to deal with
the question of alternative pleading though, significantly perhaps,
it affirmed the award in contract only.35
A century of case law which has produced only a score of 4:1:1
at first instance cannot be said to have been finally determinative
of this issue. Moreover, it appears that the scanty expressions of
the mere
judicial reasoning have overlooked one essential fact:
allegation of the existence of a contract cannot be taken as proof
of the existence of cause for the enrichment. It is fatuous to assume
that a claim advanced in an adversarial forum proves the existence
of the alleged state of fact. Judicial refusal to hear both claims is
therefore open to severe criticism. The result has the same ring of
the absurd as would denying relief to a plaintiff who, in the course
of trial, proves the defendant deliberately ran him over (a delict),
because the original plea as to the defendant’s fault may have
sounded alternatively in terms of negligent driving (a quasi-delict).
Kafka is alive and well and sitting in the courts of Quebec. One
now can only hope for future clarification by the appellate -tribunals.
B. Illicit Contracts
A situation might arise in which one person enriches another
pursuant to a civil obligation and the civil obligation later fails
because of nullity judicially pronounced. As the judgment will
affect title given in the object of the contract retroctively,3 6 one
must ask whether such an annulled contract provides “cause” for
an enrichment.
Except in the cases of successive contracts (Mignault gives the
example of the rental of a house by the year for a term of five
years), 3 cause is to be identified at the outset of an obligation. 8
If the law is to be consistent, the annulment of a contract, one
might argue, would have to be viewed as retroactively revoking
whatever claim that contract might have had to serve as the
legally cognizable cause for an enrichment/impoverishment co-
relationship. However, other considerations intervene.
Taschereau,J.
35 Ville de Sept-Iles v. Tr~panier, [1962] B.R. 956, 958; [1963] R.L. 85 per
sGBaudouin, supra, 14249, ss.249-262; Russell v. Lefrangois (1884), 8 S.C.R.
335, 355, 357 per Taschereau,J.; Plasse v. Plasse (1937), 75 C.S. 142, 144 per
Trahan,J.
375 Droit Civil Canadien (1901), 202.
38Ibid.; Aubry and Rau, 4 Droit Civil Frangais, 4th ed. (1871), 321, s.345, n.2;
Henri Mazeaud et al., 2 Legons de Droit (1966), 217, s.267; Bernard, De la
cause dans les contrats, (1958) 9 Th~mis 12, 19.
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It appears well established in Quebec civil law that a contract
formed by the parties for a subjectively illicit purpose, “oh le but
que les parties ont voulu atteindre est illicite ou immoral”, will be
declared null.39 Baudouin cites 38 examples from the Province’s
jurisprudence.40 It should follow that the parties’ status regarding
one another, having been determined by normal rules of contract,41
is beyond the scope of an action based on enrichment without
cause.42
It is submitted that the action for enrichment without cause
cannot properly operate in this field. Unfortunately, courts in both
France and Quebec have done damage to the symmetry of the
legal system through rulings to the contrary. A clear example of
such a miscarriage appears in the Arr~t Kerboua of the Cour de
Cassation.43 A and B contracted, quite simply, to bribe a policeman,
C. Though the high French court declared the nullity of the contract,
which clearly violated public order, it also ordered the return of
the monies paid by the plaintiff under the contract, reasoning that
the null contract could not offer a properly cognizable cause for
the enrichment of the party in possession of the funds. 44
Quebec case law is remarkably scanty on this point. In Ste-
Catherine Improvement Co. v. Lacroix,-45 however, a private com-
pany’s four shareholders conspired to deceive a potential investor
by each issuing a $2,000 demand note to the company. This was
done on a tacit understanding that payment never would be de-
manded of any of the conspirators. As the shareholders were not
previously indebted to the company, its demand for payment four
years later was refused, the Superior Court saying “it would be a
classic case of enriching one at the expense of another without any
consideration whatever”.4 6
39Baudouin, supra, 136, s238.
40 Ibid., 136-37, n.396-399.
4′ Note that this determination is to be made by the juge d’office even if
not raised in pleadings: L’Association St-Jean-Baptiste de Montrdal v. Brault
(1900), 30 S.C.R. 598, 604-05.
42 Quaere the effect in civil law of an illegal mode of performance, accepted
by both parties, of a contract formed for a legitimate motive on both sides
of the bargain. E.g. agreement after contractual formation to the use of a
truck inadequate to transport a heavy load, in violation of the applicable
law: Ashmore, Benson, Pease & Co. Ltd. v. A.V. Dawson Ltd., [1973] 1 W.L.R.
828 (CA.).
43 Kerboua v. Hiouel Ali Ben Salah, Cass. civ., 19 dec. 1960, Bull. Cass.
1960.I.447, no.548.
44 Ibid., 448b.
45 (1932), 38 R. de J. 44 (Greenshields,J.).
46Ibid., 47.
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
“Consideration”, in the common law sense of the term, might
well have been absent; cause, quite arguably, was present for the
defendants’ notesY4 Still, given the illicit character of this cause
–
the contract was motivated by a wish to deceive investors –
one must find the mode of problem-solving adopted by Green-
shields,J. questionable in the extreme. Its only possible justification
might lie if one were willing to extend that common law import,
the infamous corporate veil, into still further fields of Quebec
law4 7 a Such a dubious extension should call for a good measure
of discussion by the Court. None is to be found.
Having found the fraud of the plaintiff and defendants mutually
conceived, enrichment without cause could have no role at all in
the circumstances. The principle nemo auditur propriam turpitu-
dinem allegans and articles 989 and 990 of the Civil Code should
have foreclosed any action to the parties for recovery of funds
already paid under a contract violative of public order and good
morals. To quote Trudel in this context:
Si l’engagement a dt6 exdcutd, celui qui a payd la somme promise n’a
aucune action civil en rdpgtition; … Cette rigueur est le corollaire de
l’intdrdt qu’a la socidtg dans la rgpression des crimes.48
The courts apparently will not allow a mistress to claim an
award for enrichment without cause for her services qua mistress.49
However, this may not be the case for any other services she may
provide. A man whose mistress tends his children and businesses
for four years while he serves in the army must make restitution
for his patrimonial benefit and her loss of the opportunity to seek
similar work for gain.”
The general attitude of the law in point is in accord with that
of the law of obligations generally. If principles of public order
and good morals are seen to prevent the enforcement of contracts
47 Regarding the distinction between the two legal systems’ respective
requirements see Litvinoff, 1 Obligations, volume 6 of the Louisiana Civil Law
Treatise Series (1969), 494-96, ss.278-279.
47a On the general question of the proper place in Quebec law of the doctrine
of corporate personality and the narrower issue of when to lift the corporate
veil, see Martel and Martel, 1 Les aspects juridiques de la compagnie au
Qudbec (1971), 4-15.
4 8 Trudel, 7 Traitd de Droit Civil du Quebec (1946), 135-36. See also Mignault,
5 Droit Civil Canadien, supra, 203: “La cause est illicite, non seulement lors-
qu’elle est prohibie par la loi, mais encore lorsqu’elle est contraire aux bonnes
moeurs ou b l’ordre public”.
49 Joly v. Bonnafet et Alabardi, Cour d’appel de Paris, 15 juin 1939, D.H.
1939.409, 409d-410a.
5O Ibid., 410a.
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with an objectively valid cause because of the subjective motiva-
tions at play, so too would one expect the law to deny relief where
the person claiming to have been impoverished without cause
must plead her own illicit motivations for the course of conduct
which led to that impoverishment.
C. Ineffective Contracts
There are two different types of legal situations in which the
layman might find himself to have provided goods or services
pursuant to a seemingly valid contract, yet be unable to secure
a legal judgment against his co-contractant.51 In the first case, the
contract may have been legally valid at the moment of formation
but have fallen to an obstacle de droit at some later date. Alterna-
tively, the would-be plaintiff for enrichment without cause may
have seen his contract rendered ineffective at conception for non-
compliance with requirements of form.
In the first instance, obstacles de droit, because they do not
affect the existence of a valid contractual cause at the moment of
formation (the time at which cause is required to exist),62 prevent
success in an action for enrichment without cause. They similarly
bar a contractual or delictual remedy, as the case may be.
A prescribed cause of action, une ddchdance, or a situation of
res judicata each are exemplary instances of enrichment of one
party which, though perhaps unjust in the circumstances to some
other party, all occur pursuant to a valid cause. 3 Indeed, to give
a remedy in such cases would be to judicially overrule specific
texts of law,5
texts which are, presumably, intended to assure
justice in legal proceedings. One commentator has put it this way:
Le systame gdndral de preuves institud par le Code civil [frangais] I’a dtd
dans un but d’intdrdt gdndral qui n’est point contraire ?& Pdquitd, et l’dquitd,
qui est a la base de l’action de in rem verso, ne commande en aucune fagon
qu’il y soit dirogd.55
This was said in relation to a case where a creditor’s action on
a contract of loan failed for lack of a commencement of proof in
51 Situations where he has received an unenforceable judgment on a contract
but wishes to proceed against another person who has received a benefit are
considered in Division IV, infra.
52See n.33 and 34, supra.
53The list is that given by the Cour de Cassation in Dame Masselin v. De-
aens, 29 avr. 1971, D.1971.Somm.197, 197c.
54 E.g. art. 2183-2270 C.C.
55 Naquet, S.1918-1919.1.41, 41, col. 2.
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
writing; the courts rejected his second action for enrichment
without cause. 6
One can only add, further to the observation of Me Naquet
just quoted, that though the rules of enrichment without cause
may well have been developed by the courts to further a general
desire for justice in civil litigation, nothing could be more unjust
than to allow this cause of action for enrichment without cause
–
to abridge these long-
enacted and commonly relied upon rules of civil law.
arbitrarily and on an ad hoc basis –
If the result of this reasoning process appears harsh, perhaps
even unconscionable in certain instances, this may perhaps be
ascribed to the Civil Code’s formalized requirements of proof and
its rigid and complex prescription texts. Be these articles beneficial
or inequitable on balance –
an important question, but one beyond
the scope of the present article –
rules of enrichment without
cause, properly and consistently applied, cannot be appealed to
for dispensation from such nominate rules.
Situations also have been litigated in which contracts purporting
to transfer valuable prestations –
property or indebtedness –
have been executed by persons suffering from an incapacity of
exercise. When the contract is held invalid ab initio, the co-
contracting parties have claimed recompense for, the enrichment
without cause of the parties suffering the incapacities. The Quebec
courts uniformly have allowed a recompense for the enrichment,
since no cause could come into existence through the medium of
a purported contract devoid of legal effect.5 7 Such a result might
be held as foreseen by article 1042 C.C.
The only discordant voice is that of the Honourable Mr Justice
Barclay, dissenting in the Province’s Court of Appeal.58 He appeared
prepared to accept that a null promise given by officials of a town
without the required authorization of its council, would provide
good juridical cause for the supposed counter-prestations, a notary’s
5 Vve Clayette v. Liquidateur de la Congrdgation des Missionnaires de la
Salette, Cass. civ., 12 mai 1914, S.1918.1.41, 43, col. 1. See also Laurens, syndic
de la faillite Soc. Miquel et Tarayre v. Marty, Cass. civ., 12 f6vr. 1923, D.P.
1924.1.129 (failure to register a construction privilege) and comment of Rouast,
loc. cit. Quebec jurisprudence is to the same effect: Durand v. Graham, [1955]
R.L. 510, 512; [1956] C.S. 97 (Jean,J.).
57Pdloquin v. Commissaires d’9coles pour la Municipalitg de la citg de Sorel,
[1942] C.S. 200 (Archambault,J.); Vervile v. Commissaires d’dcoles de la Mu-
nicipalitd scolaire de Ste-Anastasie-de-Nelson, [1955] C.S. 114 (Edge,J.); Ville
de Louisville v. Ferron, [1947] B.R. 438.
58 Ville de Louisville v. Ferron, [1947] B.R. 438.
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professional services. Thus Barclay,J. would have denied the notary
relief for the town’s enrichment without cause, even though he
acknowledged the invalidity of the town’s contractual obligation
to pay for the services its officers requested and it received.” We
thus learn that a contract which is not a contract is a contract.
Bearing in mind the essential factor of cause, which is sought
in all actions de in rem verso, the actual results observed in cases
involving these two species of ineffective contracts appear true to
the starting premises of the law of obligations.
II. CAUSE IN OTHER SITUATIONS OF GAIN
A. Obligations Imposed by the Civil Law
In most instances the principle of freedom of contract requires
that the intention of two parties, found from the meaning of their
deeds or general rules of interpretation, governs their legal relation-
ships0 0 Exceptionally, however, specific texts of law ascribe a
precise legal consequence to forms of conduct. Persons allowing
others to hold their immovable property without executing a lease
are presumed by the civil law to be in a contractual relationship
of lessor and lessee;”‘ certain types of builders are presumed by law
to supply all labour and materials pursuant to an initial contract0 2
In such situations, no claim can be raised outside of the legally
imposed contract by. alleging an enrichment without cause. Learned
writers may use the short-hand device of speaking of the “subsi-
diarity” of the action de in rem verso. The most accurate explanation
of these situations is that a cause is provided by a contract which
governs the relationship inter partes. This contract, which has been
imposed by some rule of the civil law which is of general application,
offers a cause for any enrichment and impoverishment.6 According-
ly, the enrichment cannot be claimed to have been without cause.
The Civil Code texts used as examples thus far in this Division
are unambiguous, well-litigated and of long standing. Unless the
statutory words in point are extremely clear, however, the court
seized of such a matter may have to decide whether the intent of
59 Ibid., 454-55.
60 Art. 1013 C.C.
61 Art. 1608, 1657 C.C.
62 Art. 1793 C.C.F., art. 1690 C.C.
63 Epiceries Modernes Ltde v. Chaikin, [1961] C.S. 155, 157 per St-Germainj.,
a presumed lease; Ville de Bagn~res-de-Bigorre v. Briauhant, Cass. civ., 2 mars
et 8 juin 1915, D.P.1920.1.102, 103a.
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
the legislature was to create a contractual lien de droit between
the parties, or merely to create by fiat a special right in one party
and a correlative liability in the other. In the latter instance, where
there arises no legal presumption of some pre-existing civil obliga-
tion of the defendant which could have served as cause for the
plaintiff’s impoverishment, the plaintiff will retain any rights he
may have had to an additional remedy for enrichment without
cause. The jurisprudence of France provides an example of such
a quandary in legislative interpretation. A legal decree of 29 July
1939 04 dealt with the situation of the child who worked on the
family farm during a significant period of his adult life without
receiving wages from his parents. The child, if he qualified,65
received the benefit of something termed “a contract of labour for
a deferred wage”,66 a benefit which could be opposed only during
the devolution of the “debtor” parents’ succession.
At least three of France’s regional Courts of Appeal have had
to deal with the nature of this right, following civil claims by
beneficiaries of the right described in the 1939 decree for the
enrichment without cause of their parents. These were traditional
civil claims, pursued outside of the rights conferred by the decree.
The Courts at Besangon 6 and Orl~ans0 9 each found that the
decree’s intent was to provide an additional right to the child, and
not to impute a civil contract in those circumstances where it
applied. These courts thus allowed the claims for enrichment
without cause. The Court at Amiens held exactly to the contrary
and dismissed the civil suit.” Though the interpretation of the
intent of the 1939 decree is uncertain on the basis of the existing
case law, the approach of the courts in France would be applicable
here if Quebec courts faced the task of deciphering a civil enact-
ment in similar circumstances.
B. Obligations Imposed by the Public Law
Social interactions increasingly are regulated by special statutes
which dictate specific solutions to conflicts in the community.
Accordingly, a validly enacted law, which serves to deprive one
64 Ddcret-loi relatif & la famille et & la natalitg frangaise, Gaz. Pal. 1939.2.1165,
D.P. 1939. 4.369, art. 63 et seq., entitled Du contrat de salaire diffgrd.
05 Ibid., art. 69.
00 Ibid., art. 64.
07 Ibid., art. 64, 67.
0S8Epoux Grosjean v. GrosJean, 17 mai 1944, D.C.1944J 66.
69 Morin v. DLLe Morin, 5 janv. 1949, Gaz. Pal. 1949.1.147.
70 Loncke v. dpoux Loncke, 19 mai 1958, Gaz. Pal. 1958.2.76.
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person of a patrimonial benefit to the advantage of another for
some public purpose may well be seen as abridging the right of
the former to a civil remedy for the latter’s enrichment. 71 In essence,
the statute itself may provide a legitimate cause for the civil co-
relationship of gain and loss.
This is quite analogous to the case of civil enactments of general
application, as exemplified by the French farm wage decree. 72 It
often may be difficult to decide whether any given confiscatory
statute, which confers a special right in one party or in a public
authority over the patrimonial interests of another, also intends
to affect the more general right of the latter to recompense for
benefits received in the process.
A general principle applicable to the interpretation of statutes
in the common law (the legal tradition which underlies Quebec
public law) is to presume that the legislature intends to cause the
least possible disruption of vested private rights by its passage of
any public act.73 Accordingly, it is reasonable to presume that any
subsisting rights in private persons to sue for the enrichment
without cause of the confiscating authority or of fellow citizens
remains undisturbed, save by express enactment to the contrary.
The Provincial Court of Appeal accordingly could hold 74 that a
statute 75 giving a city fire brigade authority to raze buildings in
the path of a fire did not of itself abridge the traditional civil law
right 76 of the proprietors to seek recompense for the enrichment
without cause of leeward proprietors or of the city.77
C. Unintentional Enrichment of a Defendant
The case law includes litigation arising in situations where a
plaintiff allegedly acts in his own self-interest, but also coinciden-
7 1 Nyczka v. Communautg des Soeurs de Charitg de la Providence, [1944]
C.S. 119, 121 per CasgrainT., regarding a statute (S.Q. 1926, 16 Geo.V, c.8, s.7)
granting an asylum the benefit of the labours of its mental patients. Note
of course that the law must be validly enacted: Gaume v. Chauveau, Cass.
comm., 24 juin 1953, Bull. civ. 1953.111.167, no.240 (illegal wartime confiscation
order).
72 Division IIA., supra.
73Jacobs v. Brett (1875), L.R. 20 Eq. 1, 7 per Iessel,M.R.
74 In Citg de Qudbec v. Mahoney (1901), 10 B.R. 378.
75 2 Vict. (Que.), c.30, s.12.
76 See Bossu v. Habert et Lerousseau, Trib. de la Paix de Vanves, 26 juill.
1927, D.H.1927.535.
WBut note the dissent of Lacoste,CJ., 10 B.R. 378, 392-93, who would have
read an exemption from this duty of recompense as implicit in the statutory
right of confiscation.
1973]
ENRICHMENT WITHOUT CAUSE IN QUEBEC
tally provides a benefit to a defendant. The plaintiff then brings
an action for enrichment without cause. Almost invariably, the
plaintiff will be able to prove some resulting impoverishment to
himself.7 8 Should the person impoverished have been motivated in
his act by a desire for personal gain at another’s expense –
should,
in effect, the “cause” of the fait juridique be an unfulfilled desire
for unjustified personal profit –
the party cannot succeed in an
action de in rem verso.79 Thus, just as in contractual litigation the
court would have to enquire about the subjective cause of an
underlying obligation, it must evaluate too the validity of motiva-
tions for unilateral acts resulting in situations of correlative impov-
erishment and enrichment.
A simple case in which an action might lead to enrichment
without cause at the expense of the actor occurs where the actor’s
reasonable and honest expenditures benefit another at the actor’s
expense. The Court of Appeal considered just such a case before
the promulgation of the Civil Code. 0 This case involved a long-term
farm tenant, whose efforts to improve the land enriched the pro-
prietor, who ultimately re-took possession of the land.81
The courts have also seen unfounded claims, equally clear in
their result, raised by the person whose acts bring some small
benefit to another’s patrimony, but which are motivated by a desire
for a far greater personal gain. One case of this latter type involved
a son who repaired a house owned by his mother, a house in which
he lived and which he expected to own himself shortly. The courts
rejected his claimfu
78 He will be out of court immediately, of course, if his conduct happened
to benefit the defendant at absolutely no cost to himself: Tanguay v. Price
(1906), 37 S.C.R. 657, 666, adopting the reasons of Lacoste,C.J.K.B., dissenting
(1905), 14 B.R. 513, 518-19. Also, Labat v. dpoux Chassaigne, Cass. req., 22 juin
1927, S.1927.1.328.
79 Gerente v. Primard, Cour Royal de Grenoble, 12 aoftt 1836, S.1837.2.330,
332; aff’d Cass. civ. 6 nov. 1838, S.1839.1.160. See also Challies, Doctrine of
Unjustified Enrichment in the Law of the Province of Quebec 1st ed. (1940), 68.
80 The Commissioners charged with the codification of the laws of Lower
Canada in civil matters did not feel art. 1041 et seq. C.C. to be an alteration
of pre-existing local law: de Lorimier, 8 Biblioth~que du Code Civil de la
Province de Qudbec (1883), 86 ff. Neither did the Quebec Legislature, retro-
spectively, in 1874. They were not listed among the articles of the Civil Code
suspended in operation as regards the hearing of matters delayed by the
burning of the court house at Quebec City: An Act to Provide a Remedy
for the Losses Occasioned by the Burning of the Quebec Court House, 37
Vict. (Que.), c.15, s.19.
81Lawrence v. Stuart (1856), 6 L.C.R. 294, 296-97, 301, 303-304.
82 Alain v. Dame Frenette (1937), 75 C.S. 177, 180.
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People’s motives are not always so clear. More than one legal
or moral duty may be at play in any given situation. These in turn
may be balanced against a party’s economic self-interest. The courts
then are bound to identify the principal motivating factor resulting
in an enrichment in order to decide what the cause of that enrich-
ment is, and thus to pass upon the success of the de in rem verso
action.13 If, however, A undertakes conduct to the enrichment of B
after having agreed contractually that it is to be at the expense of B,
A can always collect the sum from B, regardless of A’s motivations
at the moment of the action. As between A and B, the contract would
govern their respective legal rights. Once again, the presence of
cause in a contract ousts any claim for enrichment without cause.
So too a special text of law may apply to characterize the nature
of an enrichment. Thus, for example, U, a usufructuary, leases to L.
L forces U to effect major repairs,84 so as to afford L useful enjoy-
ment.”5 U sues B, the bare owner, for the enrichment to B at U’s
expense, citing Civil Code provisions making a bare owner respon-
sible for major repairs to property subject to a usufruct.80 The
Court of Appeal for Paris, in upholding the action of the usufruc-
tuary for the enrichment without cause of the bare owner, effec-
tively found that the subjective cause motivating U –
the success-
ful suit by L compelling repairs by U as lessor – was overridden
by provisions in the Code governing the mutual obligations of a
bare owner and usufructuary of propertyY The law has irrefutably
imputed a cause for U’s actions, for all purposes.
D. Gifts and Officious Acts
A gift is a contract at civil law.88 Accordingly, a patrimonial
benefit derived from a gift arises in a situation of valid legal cause.
To show that the impoverishment of the donor and the enrichment
of the donee are devoid of cause, one must establish the absence
of a desire by the donor (the person impoverished) to benefit the
83 Socidtg d’applications gazi~res et dlectriques v. Socidtg Dupleix, Cour
d’appel de Douai, 23 oct. 1952, D.1952.733, 733d. A sub-lessor and sub-lessee
shared heating expenses. The sub-lessor was denied relief for the expense of
a new heating system, since it was found to be an expenditure motivated
on his part mainly by a desire to reduce his own future expenses.
84 Cf. art. 1612.3 C.C.
5Art. 605 C.C.F., cf. art. 468 C.C.
86 Cf. art. 468, 1641.1 C.C.
87Epoux Cldmengon v. Vve Crespin du Gast, Cour d’appel de Paris, 27 juill.
88Art. 755 C.C.
1928, Gaz. Pal. 1928.2.697, 698a-b.
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
donee by a unilateral act. That is, one must disprove the existence
of the contract.
Conversely, should A offer to benefit B for reward, and, after B
has refused to contract, A nevertheless proceeds to act in B’s benefit,
a presumption will arise that A intends to give B a gift of this
benefit. On this simple fact pattern the cases show that an action
by A against B for enrichment without cause will fail,89 the
presumed contract of gift providing sufficient causef 0 This meddle-
some, officious act will be deemed a gift.
The jurisprudence has established certain classes of situations
albeit a rebuttable one 91 – will arise
in which a presumption –
that a gratuitous gift will or will not furnish the cause for an
impoverishment/enrichment correlation. A professional person
acting within the very broadest bounds of his calling 92 may be
presumed not to intend a gift of his services.9 3 Benefits to charities
may be presumed to be gifts 94 and so too, aid to close relatives 95
if not to mere friends.9 6 Apparently, a gift from a non-relative is
–
not to be presumed the cause of the enrichment of a person in
extremis. 7 This very reasonable counter-presumption applies espe-
cially when a “donor” would likely have foreseen the exercise of a
right to recompense from one owing a civil 98 or a natural obliga-
tion 9 9 of support and maintenance to the recipient of the benefit. 10 0
Another class of presumptions exists in the case law: the elderly
relative, E, promises to leave the young relative, Y, something in
his will in exchange for services in E’s lifetime. Since principles of
freedom of testation are generally recognized as rendering null any
89 Adams v. Dame Adams (1919), 28 B.R. 278, 281 per Lamothe,CJ.
90 See also Beliveau v. Corporation du Village Saint-Sauveur (1934), 40 R.L.
182, 192-93 per Archambault,J.
91 Ibid.
92 Chauvin v. Bickerdike (1938), 76 C.S. 451, 457 per McDougallJ.: advocate
receiving an award for business advice given to a legal client.
Trunk Railway Co. (1896), 9 C.S. 336, 338-39 (physician).
93 Ville de Louisville v. Ferron, [1947] B.R. 438 (notary); Paquin v. Grand
94 Louisiana College v. Keller (1836), 10 La. 164 (S.C.). Note especially the
discussion of the cause of the obligation in such circumstances at page 167
of the judgment.
95 Alain v. Dame Frenette (1937), 75 C.S. 177, 181 per Langlois,J.
96 Gagnon v. Hiritiers d’Honorius Perron, [1959] C.S. 90 (Jean, J.).
07 Ibid.
98 Lord v. Oliver n.d. (ca. 1887), 10 L.N. 356 (Gill,J.).
99 Alguire v. Leblond (1937), 75 C.S. 130 (ArchambaultJ.).
100 Natural obligations as cause for enrichment is discussed in Sub-division
III.A., infra.
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alleged contract of this sort in the law of Quebec, 10′ a remedy is
sought for the alleged enrichment without cause. Because a null
contract cannot offer juridical cause for such an enrichment/im-
poverishment correlation, one should expect an award to follow, all
other conditions for the action de in rem verso being established. 02
Cases to the contrary appear to arise in situations where the conduct
or relationship of the parties leads to a presumption that a gift
inter vivos was intended during the lifetime of the deceased. 03
III. ADDITIONAL SOURCES OF CAUSE
An examination of civil law cases discloses situations in which
the courts tend to reject actions for enrichment without cause,
though all of the traditionally required elements for such a suit
4 Sometimes the enrichment/impoverishment
appear to be present
is present and no civil obligation or other legally
relationship
mandated situation of gain and loss is proven to exist. Yet the legal
mind still responds to the facts of the case by judging the enrich-
ment to be justifiable for some reason.
Such situations, where the courts do allow remedies as they
strive for abstract justice between the parties to various suits, all
involve types of lower level obligations. Two such classes of obli-
gations which appear to have been relevant to reported lines of
jurisprudence are discussed in the following Sub-divisions.
A. Natural Obligations
The civil law recognizes the existence of a right, personal to
the individual, for support from certain close relatives in times of
need.0 5 Such rights, however, will be held beyond the bounds of
commerce, or transference by contract, due to their extrapatrimonial
character. 0 6 Nonetheless, acts done pursuant to such natural rights
and obligations during the lifetimes of the parties 107 which result
101 But cf. Fortin v. Fortin (1916), 49 C.S. 267 per Guerinj. (C.R.), sed quaere.
See also Dame Boisvert v. Blanger (1930), 48 B.R. 395, 397.
102 Gaudet v. Dame Gaudet, [1959] C.S. 230, 232 per Ferland,J.
103 Bernier v. Bernier (1901), 7 R. de J. 277, 278-79 per Pelletier,J.; followed
in Bernier v. Bddard, [1957] R.L. 485 (ChoquetteT.).
‘0 4 See Division I, supra.
105 E.g., art. 166 C.C.
106 Proulx v. Proulx (1909), 10 R.P. 13.
107 0r thereafter, such as the burial expenses of a father borne by children
who renounced the succession, according to one Provincial Court case: Com-
pagnie d’assurance fundraire de Montrdal Ltde v. Dalpd, [1970] R.P. 61 (Ron-
deau, Prov.CtJ.).
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
in the actors’ respective impoverishment and enrichment will be
regarded as being founded upon a legally cognizable cause.
Still, since the obligation is personal to the parties within the
stated degrees of relationship, a claim by a child upon whom his
father called for aid against his brother to defray a portion of the
expense cannot succeed in an action de in rem verso. The impover-
ishment of the first son, and the consequent enrichment of the
second, found their cause in the right which the father chose to
exercise against the first son.
By and large, in the legal system of today, just as in the days of
the Romans, it is impossible to conceptualize multilateral civil
relationships. The lien de droit is only a bipartite animal. Thus the
action for enrichment without cause in the instance last considered
is not permitted to alter the essentially personal, extrapatrimonial,
bilateral character of the right of a parent to his child’s support. 08
B. Custom
Though most of society’s recognized duties of people towards
one another find expression in nominate texts of law within civilian
systems, it is to be recognized that an ever-evolving framework of
positive obligations, some necessary to the very functioning of
society, exist still by force of custom alone. “[T]hough not on a par
with the laws enunciated by Parliament or found in texts of the
Civil Code, custom and usages play, in an undeterminable yet
certain fashion, a considerable role in juridical life.”‘1 9 Thus, the
existence of a customary duty might legitimately be the legally
cognizable cause of an enrichment/impoverishment correlation.
One class of cases in point relates to situations where a family
relationship may allow one to call on another for certain types of
services. Once rendered, this customary obligation offers a legally
cognizable cause for the enrichment and correlative impoverish-
ment.
Courts in France appear to be prepared to find “un pacte familial
coutumier”u”0 to offer a sufficient cause for the unpaid labours of
108 Ripert, criticising the decision in A.P. v. J.P., Tribunal Civil de Bar-le-Duc,
5 juin 1943, D.1944J.18, 18d, 19b.
109 Louis Baudouin, Les Aspects gdngraux du droit privg dans la Province
de Quebec (1967), 59, translated. Cited especially are notarial and commercial
forms, and examples of the adoption of custom within the Civil Code; e.g.
art. 445 (usufruct), 1016 and 1024 (contract), 1530 (sale), 1635 and 1639 (lease
and hire): supra, 56-58.
130 Epoux Bergez v. Epoux Bergez, Tribunal civil de Pau, 22 mars 1940, Gaz.
Pal. 1940.1.475, 476b.
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an engaged couple on the farm of the fiancd’s father. In one such
case, a court decided as follows:
Attendu qu’en rdalitg c’est un pacte familial coutumier qui a rdgi les
rapports des parties, un pacte qui comporte point la stipulation d’un
salaire actuel ou diffdrd jusqu’au jour de la rupture.
Attendu que l’action de in rem verso n’dtant que subsidiaire, le seul
fait de l’existence de ce pacte suffirait a la rendre irrecevable.111
Similarly, a Quebec case saw a wife claim $30,000 for her services
as a legal secretary and bookkeeper to her husband over a term of
six years. The court deemed such an arrangement, intended during
its currency to benefit the married couple generally, a bar to the
wife’s action for enrichment without cause.112
A key factor in such decisions appears to be whether or not a
reasonable man would expect monetary remuneration to pass in
any given dealing between relatives. 31 The exceptional character of
services rendered, or the distance of the relationship, all militate
against the finding in custom of a cause for an enrichment, and
accordingly in favour of the success of the action de in rem verso. 1 4
Universal and even localized usages and expectations may offer
a customary cause, civilly cognizable in enrichment situations, even
outside of familial relationships. A common duty to apprehend
thieves provides a valid cause for the impoverishment of an individ-
ual who takes time to ride at the head of a posse to effect a thief’s
capture and the recovery of a bank’s stolen money.”5 Similarly, a
proprietor who accedes to a local custom allowing the transport
by a carrier for reward of goods across a body of water he owns
cannot, it has been held, retroactively claim the carrier to have
been enriched without good cause.”6
Occasional usage “suffices to constitute just cause”, at least for
actions prior to the litigation.” 7 It might be supposed that one can
“‘1 Ibid., Epoux V. v. B., Cass. civ., 26 mai 1965, D.1965.628, 628b affirming
the reasons for judgment of the Court of Appeal for Orldans.
112 Dame L. v. B., [1970] C.S. 87, 90 (Trdpanier,J.). This judge, however, saw
it in terms of an implicit ‘contract’ between the spouses; sed quaere.
113 Dame Deschamps v. Rougerie, Tribunal du Grand Instance de la Seine,
8 juin 1960, D.1960.Somm.125. The case applies these principles in a situation
of services rendered by a mistress.
“4 Sicotte v. Dame Desmarteaux (1934), 73 C.S. 59, 63 per Forest,J. Award
to nephew for eleven years’ labour for an aunt who raised him.
115 Wark v. People’s Bank of Halifax (1900), 18 C.S. 486, 488-90 (Circuit Court,
Lemieux,I.). Although Wark was denied $35 for performing a hazardous duty,
he was awarded $5 for his work in effecting the arrest: supra, 487.
116 Consorts Polverel v. Vve Arnal, Tribunal civil de Florac, 17 juin 1952, Gaz.
Pal. 1952.2.286, 288d.
117 Ibid.
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ENRICHMENT WITHOUT CAUSE IN QUEBEC
prevent such common usages from providing a cause for another’s
enrichment only by serving notice of an intention not to be a party
to the custom before anything is done in reliance upon the partic-
ular usage. An analogy might be drawn to the disproving of a liberal
intention by purported donees, as discussed in Sub-Division II.D,
supra. Unfortunately, the limited reported litigation in this most
interesting area allows for little speculation on the precise scope
of customary obligations as sources for the cause of civilly justi-
fiable enrichment.
IV. RELATIVITY OF OBLIGATIONS
A. Cause and the Stipulation Pour Autrui
It is a general rule of the civil law of obligations, subject to the
specific exception of the stipulation pour autrui,-1s
that the
“effects” 119 of contracts are limited to the contracting parties. Yet
a recurring question in the law of enrichment without cause is
whether a contract between A and B can provide the cause for a
benefit which is enjoyed by C, though provided by B, and at the
expense of A. If, for example, A offers a prestation in exchange for
B’s (worthless) promise of future payment, and C enjoys a benefit
from this prestation, does A have an action de in rem verso against
C?
Very learned authority in France suggests the answer to this
question is that A can succeed provided the relationship is not too
extenuated (trop gloignge).’ It is submitted that, at least in the
civil law of Quebec, the test should be whether the contract between
A and B included, expressly or implicitly, a valid stipulation for
the benefit of C. If, and only if, this test is met can the contract
produce juridical effect extra partes, and offer a cause for C’s
enrichment, without doing violence to the general rules of the
relativity of obligations.
No case, either in the legal history of Quebec or of France, has
come to the attention of this author in which the reasoning here
proposed is adopted by a court. However, with the exception of a
few cases following a line of thought which will be questioned below,
the outcome of most reported cases is not in conflict with this
theory.
118 Art. 1029 C.C.
119 “D’effet” in the French-language text of the Code.
120Paul Esmein et al., 2 Obligations, supra, 56, s.755. No more specific
guidance is offered.
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In situations where A, in contracting with B, did not know of the
necessary benefit to C, and hence they could not mutually intend the
contract to be to C’s benefit as required by article 1029 C.C.,121 an
action will lie by A against C. C’s enrichment is without cause vis-h-
vis A.122
The converse also would follow. Thus, where A and B intend C
to benefit and a stipulation pour autrui in C’s favour can be identi-
fied,’23 a “cause” accordingly exists vis-h-vis A and C for C’s benefit;
A’s action de in rem verso against C will fail. 24 Again, it is to be
admitted that the proposed theory is not expressly accepted in any
reported Quebec case. But neither are there rationes decidendi –
or
even rationes scriptae –
cogently adopting any other legal reasons
for the judgments rendered. The theory of the express or implied
stipulation pour autrui alone appears to be in accord with the general
law of the relativity of civil obligations.
B. Another View
Only one reasoned Quebec judgment does not accord in its result
with the theory proposed in the last Sub-division. This case, Mer-
chants Coal Supply Co. v. Dame Ellison, 2 has been followed in Que-
bec,” 6 and has at least one counterpart in the jurisprudence of
France. 127 Consider the situation where A sells to B without know-
ledge of C’s existence. C benefits, however, this having been B’s
motive for contracting with A. Cause exists in the contract between
B and C, either due to an alimentary obligation 128 or to a contract of
gift.’20 The Merchants Coal theory finds C enriched at the expense
not of A, but of B, by claiming the goods were already in B’s patri-
mony at the time when C was benefited. 30
121 See Halle v. Canadian Indemnity Co., [1937] S.C.R. 368.
122 Lafleur v. Dame Damiens (1931), 69 C.S. 79 per Greenshields,A.C.J.;
Edouard Gohier Ltde v. Dame Taillefer (1936), 75 C.S. 46 (Demers, J.); Hocquart
v. Vve Mignot, Cass. req., 4 fdvr. 1901, S.1902.1.229.
12 3 Halle v. Canadian Indemnity Co., [1937] S.C.R. 368.
12 Corporation du College de l’Assomption v. Morin, [1944] C.S. 69 (Salvas,J.);
contra, Schroeder v. Rieger, Justice de Paix de Luxembourg, 16 mars 1900, Pas.
1901.4.46.
125 (1933), 71 C.S. 486 (Circuit Court, Archambault,J.).
126Vipond-Tolhurst Ltd. v. Dame Racine, [1946] C.S. 266 (Tyndale,S.).
‘ 2 7 Moreau v. Roberts, Tribunal civil de la Seine, 22 fdvr. 1913, Gaz. Pal.
1913.1.634.
128 Merchants Coal and Vipond-Tolhurst cases, supra.
129 Moreau v. Roberts, supra.
130 Cf. Debien v. Dumoulin (1919), 56 C.S. 271, and additional reasons for
judgment reported at page 542 (Court of Review).
1973]
ENRICHMENT WITHOUT CAUSE IN QUEBEC
It is submitted that this criterion for differentiating the well-
founded from the unfounded action, based upon the existence of
cause between the person enriched and a party at arm’s length from
the one actually impoverished, is artificial and unworkable. B can
engage in a contract of gift to C of the goods of A; A can still recover
from C.131 The relationship of C to B would not be material to A’s
action. Also, if this theory be adopted the legal solution differs ac-
cording to the moment that A and B agree for title to pass to B.
To allow the contract or other obligations between C and B to
influence the de in rem verso action between C and A appears an
unwarranted departure from the over-all scheme of the civil law. No
textual authority for such a departure has ever been offered.
CONCLUSIONS
The establishment of the action for enrichment without cause in
the jurisprudence of Quebec as a legal institution, certain in appli-
cation and just in effect, can only stand to further the equitable
administration of civil justice in the Province. 3 s And it is precisely
such certitude of application and scope at the bench and bar which
would make this relatively obscure action a force which contributes
meaningfully to the over-all justice of the civil litigation process.
Essential to this understanding is an appreciation of the manner in
which the presence or absence of cause determines the appropriate-
ness of the action in various circumstances. Factors including civil
bilateral obligations of differing sorts, legal obligations and gifts,
natural and customary obligations, and the relativity of obligations
must all be appreciated. A mindless kotow in the direction of vaguely
relevant formulations out of the most convenient dusty law book
does little to engender respect for the legal process.
The very formulation of this action as one for enrichment without
cause potentially allows the civil law to achieve a level of certainty
131 Art. 593, 583, 406 C.C.
132 This conclusion is drawn notwithstanding the fact that a major civilian
system obviously can flourish without the existence of such a cause of action.
See Nortje en’n v. Pool, N.O., 1966 (3) SA. 96 (A.D.), where the Appellate
Division of the South African Supreme Court decided, 3-to-2, that no gener-
alized cause of action for enrichment without cause exists in uncodified
Roman-Dutch law; this decision was made after consideration of Quebec
authorities, inter alia. But cf. obiter dicta to the contrary in Pretorius v. van
Zyl, 1927 O.P.D. 226 (de Villiers,J.P.), and Hauman v. Norte, 1914 A.D. 293.
Note also the similarity of early Dutch doctrinal expressions to those in French
law from which the modern action in Quebec and French law supposedly
follows: Grotius, Jurisprudence of Holland, 3.1.15, 3.30.1; Voet, Commentary
on the Pandects, 6.1.36.
McGILL LAW JOURNAL
[Vol. 19, No. 4
in justice above that found in the comparable quantum meruit’8 3
and quantum valebat34 counts of the common law. Rather than
deciding in each case very subjectively whether a court is faced with
a claim for a “recovery of deserving amounts”, 35 a Quebec court
ought to be able to relate its judgment of the appropriateness of each
claim to a logical, developed, yet flexible and ever-developing, concept
of cause.
It is for these reasons that the general theory of cause in the law
of obligations must be better understood in the context of the action
for enrichment without cause than has been the case in the bulk of
Quebec case law to date.13 6
133Action for the value of services rendered: “for such promise to pay
tantum quantum meruerit [sic] is certain enough, and he shall make the
demand what he deserves; and if he demand too much, the jury shall abridge
it according to their discretion.” (Hall v. Walland (1621), CroJac. 618, 619;
79 E.R. 528, 528-29.)
134Action for the value of goods received: differentiated from quantum
meruit in Boult v. Harris (1676), 3 Keeble 469; 84 E.R. 828.
135 Stoljar, Law of Quasi-Contract (1964), 165 (emphasis added), and passim.
See also Goff & Jones, Law of Restitution (1966), 11-14, 16-26, where factual
criteria limiting the scope of the action are enumerated; the authors claim
(page 14) that these relate to the injustice of allowing the plaintiff to obtain
an award in certain given circumstances, circumstances which have distilled
out of centuries of case law.
136 The author’s research was assisted by a grant from the Wainwright
Trust Fund of the McGill University Faculty of Law. The gracious counsel
of the Fund chairman, Professor Paul-A. Cr6peau, also was sincerely appre-
ciated.
