CONTRACTUAL AND DELICTUAL RESPONSIBILITY IN QUEBEC
THE REDISCOVERY OF CONTRACT
Daniel N. Mettarlin*
The determination of the borderline between contract and delict is among
the most difficult of legal problems. The delictual responsibility of art. 1053
C.C. is by nature so broad as to encompass almost all of human activity, and
certainly most situations envisaged by contract. Indeed, if one were forced to
reduce our law to one phrase, it would be that “one must repair the damage
est l’une de
caused by one’s fault,” or as Mazeaud has put it “Le principe …
ces grandes r~gles d’6quit6 qui pourraient 1 elles seules r~sumer le droit tout
entier”.1
Thus he who first approaches what Prosser has called the “Borderline of
Tort and Contract” must feel as Maitland did on approaching the study of
legal history:
“Such is the unity of all history that anyone who endeavors to tell a piece of it, must feel
his first sentence tears a seamless unit.”2
The Code has created a distinction between contract and delict; but how
to give the differences flesh and blood in view of the encompassing generality
of 1053, is nowhere to be found within its confines.
Art. 984 C.C. lists the four requisites to contractual formation. 3 Once these
prerequisites are met the contract is formed. The buyer and seller of property,
the lessor and lessee of a premises, the train company and passenger, the doctor
and patient, all fulfill these requirements in their relationships and so form a
contract between them.
However the question arises as to what was agreed on, especially in view
of the impossibility of foreseeing all future circumstances. Are such events as
the collapse of a tenant’s gallery or the failure of a doctor to maintain4 secrecy
concerning his client’s ailment, contractually or delictually oriented? Similarly
are the accident occurring to a train passenger on his journey, the negligence of
the doctor in treating a patient, or that of the barber in giving a haircut, within
the scope of the contract, or simply delicts between persons who are bound by
*This is a chapter from a third-year essay, which won the Arnold Wainwright Prize for the bct
essay on the civil law topic. Mr. Mettarlin is presently continuing his studies in Toronto.
‘Mazeaud and Tunc, Traiti theoriue et pratilue de la responsabilite dulictuelle et contractuelle (1957)
5th ed., vol. 1, p. 16.
2Prosser, W., Selected Topics on the Law of Contract and Tort (1954), p. 380.
3Capacity, consent, object and lawful cause.
4Vineberg v. Foster (1903) 24 S.C. 258.
No. 1]
REDISCOVERY OF CONTRACT
agreement on some other point (such as the lessor of a car who is run down by
his lessee)?
The Quebec courts faced with the problem of determining the content of
contract have unfortunately not viewed it as a general problem, but have
decided without a system or guiding principle, whether each particular relation-
ship is contractual or delictual. Each decision indicates “it is clear that the
parties entered into a contract on this point or did not”. Why it is clear, or
on what basis the courts have decided, is not stated. The results have been a
series of incompatible judgments, such that with each relationship brought
before the courts one has no way of determining what the answer will be.
Let us first turn to the problem of transport. The customer buys a ticket,
paying the price, or obliging himself to pay it in the future. In return the
transporter (taxi, train, autobus) promises to bring him to his destination.
If he does not pay the price, clearly he the traveller is contractually responsible;
while if he does not arrive at his destination, through some fault of the
company, the latter may be sued for breach of agreement.
Of course numerous events may occur during the trip, all of which have
found their way into our courts. A collision or derailment may occur, causing
injury to the passenger, or he may alight on an icy platform causing him to fall
and injure himself; similarly he may be served poisoned food in the train
dining room, or may be attacked by a drunken passenger. Are all these circum-
stances encompassed by the contractual relationship between the two, or are
they outside it, in the delictual field?
A limited jurisprudence has held that the transporter contractually, has
more than the limited duty to carry the passenger to his destination but that
he must bring him there safely and soundly. In other words, these cases impose
an obligation of result on the carrier, indicating that he is contractually
responsible to the passenger for certain accidents and eventualities arising
during the voyage.’
A similar decision was reached by Letourneau J. in Daignault v. N.Y. Central
Railway :6
“Personneliement, j’incline vers cette theorie d’une responsabilit6 contractuelle chez le
voiturier. Trop longtemps notre jurisprudence a paru h~sitante et flottante 1 ce sujet …
Car n’cst-ce pas une obligation que contracte le voirurier i 1’6gard du voyageur, et cette obliga-
tion n’est-elle pas de rendre celui-ci A destination sain et sauf?”
The Superior Court in 1948 agreed:7
“Le demandeur avait fait un contrat de transport avec la d6fenderesse et elle est oblig&e
de le rendre i destination sain et sauf.”
5MrDonald v. Montreal Tramways Company (1920) 28 R. de J. 533; Carrier v. Canadian National
Railway Company [1942] S.C. 372.
6[1945] K.B. 457. Note Judge Barclay makes no comment on the matter.
7LDicary v. Taxis janes Ltie. [1948] S.C. at 240; see also Dame Boucher v. Laporte [1943) S.C. 36.
McGILL LAW JOURNAL
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Again in 1957 the Superior Court reached a similar decision:
“Consid&ant qu’un conducteur d’autobus a envers ses voyageurs une obligation dc s6cu-
rit6… Consid&ant qu’cn France la cour de cassation a, le 28 juin 1955, d~cid6 quc le fait d’un
tiers n’exonarc pas le gardien on le dbiteur d’une obligation contractuclle d6termin&c.”‘ s
However, these are isolated decisions amidst a wealth of cases which have
imposed the most minimal contractual obligation on the carrier; namely, to
simply provide the customer with a functioning vehicle; any accident that
occurs during the carriage is considered as not envisaged by the parties and
hence outside the contractual regime.9
The Queen’s Bench has recently affirmed this long line of jurisprudence.
In Transport Urbain de Hull Lt6e v. Dame Daly the Court of Appeal, 10 citing a
long line of cases reversed the lower court which had held the relationship
contractual.
Mr. Dennis, commenting on this case in the McGill Law Journal, declares:
“The reason why the courts have consistently applied the dclictual regime of civil responsi-
bility to the carriage of persons, and thus have required proof of fault or negligence of the
carrier by the victim-passenger, has been the failure of the courts to accept the distinction
between obligations of means and result.”‘”
Thus he feels that the courts, if they wish, could apply the obligation of
means to the contractual relationship, achieving the same result as far as the
burden of proof is concerned; that is, placing it on the plaintiff. 12
However, I respectfully submit while this may have been the courts’
reaction in a few cases, 3 the courts of Quebec have, by and large, accepted this
distinction discovered in 1925.14 And even if one argues they have not, I submit
the real reason for the failure to include accidents to the passenger within the
scope of contract may have been, in a few isolated instances, due to a fear of
shifting the burden of proof, but in the main it has been caused by a refusal to
expand the content of contract beyond what the courts have envisaged the
“parties agreed to”.
This decision of the courts as to the contract of carriage is contrary to French
law which, since 1911, has held that the carrier is under a contractual duty to
transport his passenger safely and soundly to his destination, an expansion of
TRodrigue v. Autobus Lac Frontire Lte [1957] S.C. 152, at 153-4.
‘The early leading case was M.T. Co. v. Pistchick (1926) 41 K.B. 324; cf., also Mtl. Tramways Co. v.
Starkey [1955] Q.B. 503; Autobus Saguenay Inc. v. Dame Reverin [1957] Q.B. 586; MacIntyre v. Binder
(1938) 76 S.C. 6; Gagne v. Godbout [1946] S.C. 16; Parent v. Cie. de Transport Provincial [1947] S.C. 254;
Morgan v. Montreal Tramways Co. [1954] S.C. 146; Chevalier v. Monteith [1956] S.C. 407.
1[1959] Q.B. 773; cf., also Lussier v. Marquis [1960] Q.B. 23.
11(1960) 7 McGill L.J. 73.
“Cf., “Discussion on burden of proof”, Ibid. p. 75.
“Cf., Desmeules v. Renaud [1950] K.B. 659; and Daignault v. N.Y. Central Railway [1945] K.B. 457;
cf., also judgment of Rinfret J. in Godbout v. Marchand [1960] K.B. 1132, at 1136.
14Cf., Rajotte v. X (1936) 74 S.C. 369 as early as 1936; cf., the cases which have imposed an obliga-
tion of result on the carrier.
No. 1]
REDISCOVERY OF CONTRACT
the content of the contract of carriage which exceeds the content envisaged by
the Quebec courts.15
Moreover, the majority of modern Quebec authors feel that the French law
is correct on this point. Morin, writing in 1939, reached the conclusion that
transport involves a contract to carry the passenger safely to his destination. 16
Nadeau also concurs in this result:
“Les tribunaux ne devraient pas h~siter i reconnaitre la nature contractuelle de cette
faute… Une simple analyse du contrat form6, dans lequel on ne peut pas manquer de voir
l’obligation, permetrair de conclure 1 la faute contractuelle.”‘ 17
Prof. Cr~peau writing in the 1960 Revue du Barreau reaches a similar
conclusion. 18 However, be this as it may, under jurisprudential Quebec law,
the relationship is delictual. The present view may be summed up by Desmeules
v. Renaud at p. 663. ”
“‘1l y a beaucoup a dire en faveur de la rcsponsabilit6 contractuelle du voiturier a l’endroit
des personnes comme des choses mais il faut reconnaltre que la jurisprudence qui exige la
preuve d’une faute est fermement 6tablie… I me parait bien diflicile de demander aux tribu-
naux de mettre de c6t6 une jurisprudence que l’on peur dire avoir &6 unanimement suivie depuis
Un si grand nombre c’ann&es. Le revirement que suggare Me Andr6 Nadeau devrait au moins
erre l’ocuvrc du plus haur tribunal du pays. Je me demande s’il ne faudrait pas l’intervention
du lgislateur.”
The courts have held in numerous other relationships that the content of
the contract does not extend beyond the most minimal possible obligations
undertaken.
Thus in the case of a ski-tow operator it was held that he is not contractually
responsible for accidents occurring to the skier, but following the decisions
relating to transport, only the delictual field was open to the victim. In other
words the operator only undertook to carry him to the top of the hill. 20
Similarly, a private school which provided supervised recreation was not
held contractually responsible for an accident during a school bus trip.2’
In an interesting case the Superior Court 22 held the restaurateur who serves
soup with a bone therein, delictually liable for damages to the customer.
Presumably the only contractual relationship of the restaurateur is to provide
the customer with the meal ordered, regardless of its condition. Any damage
“Cass. Civ. 21 Nov. 1911, (S.1912.1.73); cf., also Brun, “Rapports e domaines des responsabilits
contractuelle et dlictuellc” (1931), p. 207 for a discussion of French jurisprudence.
5″Morin, Larersponsabiliti dans les transports. PrenierCongres International de l’Association Henri Capitant
de 1939.
5 Nadeau, Trait de Droit Civil de Quibec (1949), vol. 8, p. 145.
‘5 Cr~peau, “La responsabilit6 m6dicale et hospitaliare dans la jurisprudence qubcoise r~cente”
(1960) 20 R. du B. 433, at p. 438.
29Supra.
20Arvida Ski Club v. BoucLer [1952] K.B. 537. This reversed the decision of the lower court which
found the operator responsible for a contractual obligation of result.
21Les Clercs de Saint-Viateur de Montreal v. Charbonneau [1958] Q.B. 390.
2DuI
v. Laurin (1941) 79 S.C. 308.
McGILL LAW JOURNAL
[Vol. 8
that results due to the improperness of the food is unforeseen by the contract,
and delictual. On the other hand the courts have, without giving any reason
for so doing, extended the content of other contracts to include more than the
minimal obligations found in transport and the restaurant trade.
The courts have continually held a cleaner liable for the damage caused to
the goods entrusted to his care, imposing on him a contractual obligation of
result.23
The courts have also held that the barber or hairdresser who causes damage
to his customer is contractually liable, having assumed a contractual obligation
of care.
“II me parait vident que le barbier n’a commis ni dlit ni quasi-d~lit mais qu’il agissait
dans l’execution d’un contrat qui lui donnait le droit et lui imposait l’obligation d’un hommc
soigneux … que mame H’inhabileti dans l’ex~cution ne constitue pas un quasi-d~lit, mais un
dfaut d’ex~cution de contrat.”1
The courts have also held a Chartered Accountant contractually responsi-
ble, 25 and the Notary who does not take proper care of his client in drawing up
a mortgage. 2
The courts have also found a contractual duty of supervision over sub-
contractors on the part of the main contractor. 27
As far as medical responsibility is concerned, the courts have alternated
between finding only a minimal contractual relationship on the part of the
doctor 28 (of simply appearing -when called), and of writing into the contract
a contractual obligation of means on his part to effect a cure. However, one
can find no logical reason in the decisions, for the alternation, or the preference
of one philosophy to the other.
In France medical responsibility was originally delictual, as it was felt too
great a burden of proof would be placed on the doctor, thus discouraging
medical advances. However, aided by the notion that the burden of proof
shifted not according to the source of the obligation but according to its
nature (i.e. means or result), the French courts reversed themselves, and from
1936 on have held the relationship contractual.29
Many Quebec cases have held the doctor liable contractually, only for the
most minimal duties. Any accidents due to lack of skill during the exercise
of his profession are held delictual.
PCorbeille v. $1 Cleaners (1937) 75 S.C. 193; Bachand v. Birs (1921) 31 K.B. 365; Gincherau v. Wright
(1924) 36 K.B. 150; and Bourget v. Aita [1947] S.C. 25.
24Mahking av. Robitaille 51 S.C. 17, at p. 19. Cf., also Robillard v. Merineau (1939) 77 S.C. 503.
2Guardian Ins. Co. of Canada v. Sharp [1941] $.C.R. 164.
2GLalonde v. X (1936) 74 S.C. 164. Traditionally though he has been held delictually liable. Cf.,
Nadeau, op. cit., p. 259.
27Ek-Ser Construction Ltd. v. Newton Construction [1945] K.B. 529.
28Indeed of most professional responsibility.
2
9Cass. Civ. 20 mai 1936, (D.1936.I.88).
No. 1]
REDISCOVERY OF CONTRACT
“‘Quanti la responsabilit6 du m~decin elle est d&ermin~e par l’art. 1053 ..
. Le principe
de I’art. 1053 et 1382 C.N. s’applique 3; ceux qui exercent une profession lib&alc tclle que
]’art de gu&rir.”30
Similarly in Fafard v. Gervais it was held, admittedly in an obiter dictum:
“Considrant que la responsabilit6 6dict&e par P’art. 1053 C.C. s’applique aux hormes
de profession, m6decins, dentistes, avocats. ” 3
Recently in Munro v. Paul5 2 it was held that while the French law has
changed, Quebec courts have traditionally held medical responsibility delictual,
and it was not for the Superior Court to change the law.
However, in spite of this decision, there is a strong tradition in Quebec for
holding the relationship contractual.
In Griffith v. Harwood3 the doctor was held contractually liable for his lack
of skill, and the defendant’s plea that the action was prescribed by one year
(art. 2261 C.C.) was dismissed.
Similarly in Rajotte v. X the Superior Court held the relationship contractual,
quoting the French jurisprudence and doctrinal opinion, and the Harwood
case.34 However, the higher courts refused to adjudicate on this point.
In 1939 L&tourneau J. indicated:
“II y a aujourd’hui tendance apparente en France a voir une rcsponsabilit6 contractuelle
dans ce cas des services du mdecin, non seulement comme autrefois pour Ic service–mme du
. l’obligation du mdecin ne serait pas de gurir, mais tout au plus de donner des
mdecin ..
soins assidus &lairds et prudents … Obligation de moycns et non de r~sultat.” s
Within the last three years there has been a marked tendency on the part
In X v. Mellen,
of the Queen’s Bench to find the relationship contractual.
Bissonnette J. indicates:
.Qu’un lien contractuel se soit &abli entre le pire de l’enfant et le chirurgicn, ceci ne peur
souffrir de doure. .. un contrat de soins professionnels.” 36
A similar decision was reached by the same court in 1960:
“It is now accepted that the relationship between a surgeon and patient is contractual
with the result that actions such as the one now under discussion are subject to prescription
by thirty years.”’37
3 Caron v. Gagnon (1930) 68 S.C. 155, at pp. 156-7. Similar decisions are rendered in Vacbon v. Moffat
(1911) 40 S.C. 166, where a veterinary was held delictualIy liable; Pincovsky v. Tessier (1930) 36
R.L. 327 (dentist); Bouillon v. Poirc (1937) 63 K.B. 1; Casavant v. Dr. X (1939) 77 S.C. 447; St. Onge
v. Bernier 70 S.C. 205 (dentist).
3’tFafard v. Gervais [1948] S.C. 128, at p. 129; cf., also [1942) Revue du Barreau 412.
-“[1956] R.L. 359.
-(1900) 9 K.B. 297.
14(1936) 74 S.C. 369; cf., also Bordier v. S. (1934) 72 S.C. 316.
3Nelligan v. Clhment (1939) 67 K.B. 328. Note that there are several cases in which the courts
have not indicated their preferences except to state that the burden of proof is on the plaintiff.
In view of the possibility of option, and the fact that in contract or delict the burden would be the
same, one cannot definitely say that these decisions dismiss contractual responsibility. Such are
Elder v. King [1957] Q.B. 87 and Royal Victoria Hospital v. Ducharme (1943) 69 K.B. 162.
“6[1957] Q.B. 389, at p. 408.
37G. v. C. [1960] Q.B. 161, at p. 164.
McGILL LAW JOURNAL
[VCol. 8
Justices Taschereau, Pratte, Galipeault, and Choquette all agree, the latter
quoting Rajotte v. X with approval.3 8
The recent decision of Godbout v. Marchand” also considered the problem.
However, the determination of the relationship was obiter since the main point
was decided on another issue. Taschereau J. who, as we have noted, favours
the contractual relationship, did not discuss the point. Hyde J. at page 1134,
indicated that the relationship is contractual, although allowing option.
Rinfret J. seems to indicate that the relationship can be contractual (allowing
option) but also indicates that the relationships between the two can be other
than contractual. However he lays down no rule as to when the relationship
should be contractual or delictual.
Thus it would appear that a majority of the judges on the Queen’s Bench
who have committed themselves on the subject seem to favour an extended
contractual content. This appears to be the dominant trend in Quebec juris-
prudence.
Surprisingly enough, very few Quebec authors have expressed a personal
opinion on the matter, only Prof. Crtpeau, indicating that he favours a
contractual liability. 40
The determination of contractual content by the courts and the authors
appears to be arrived at, in my opinion, most arbitrarily.4″
Thus the carrier and ski-tow operator have been held delictually liable for
their lack of care, while the barber is contractually liable for his lack of care;
the restaurateur has no contractual liability towards his patrons for dangerously
prepared food while the cleaner of rugs may be held contractually responsible
for his carelessness; the private school has a delictual obligation of super-
vision towards its pupils; the contractor a contractual one as regards his
subcontractor in favour of other subcontractors.
How then can we determine where the contractual field ends and the delictual
begins? The courts and the Code have answered, “Include only those obliga-
tions to which the parties have agreed, since the contract is based on free will
of the parties, upon the meeting of minds. Whatever is not AGREED TO is
part of delictual responsibility.”
However this is to answer the problem by posing it another way. For the
problem now is, “What is agreed to?”
Is the doctor agreeing to simply treat
the patient, to bring all the skill at his disposal to cure him, or promising to
cure him? Similarly, is the ski-tow operator promising simply to provide a
functioning apparatus at the skier’s disposal, to use all his skill in lifting him
to the top of the hill, or to carry him to the top with no accidents? And
3 8
Supra.
39[1960] Q.B. 1132.
4 0Cripeau, P., La responsabilite civile du midecin et de l’Tetablissement eospitalier, (1956).
4 For example there can be no reason why Nadeau considers the obligations of skill towards the
passenger by the carrier to be contractual and accepts that of the doctor as delictual.
No. 11
REDISCOVERY OF CONTRACT
secondly, for what circumstances are these debtors promising these duties.
It is evident that the parties cannot foresee all accidents and eventualities.
In which circumstances have they consented to act with care and which are
outside the realm of their agreement?
There are then two problems involved in the determination of the content
of contract. Firstly, what situations does the agreement cover; that is, for
which circumstances and duties will the debtor be responsible. Does the
contract of medical care envisage a duty on the part of the doctor to maintain
secrecy in regard to his patient’s ailment? Does the contract of lease and hire
of a workman’s services contain the obligation on the part of the employer to
prevent work accidents? Is there in the contract of carriage, the duty on the
part of the carrier to prevent damage to the passenger caused by unruly customers
or concessionaries (e.g. newspaper vendors on board)? Similarly, is the accident
to a boarding school’s pupils, while on a bus tour provided by the school, part
of the contract of education?
Once one has determined the circumstances for which a debtor will be
responsible, then one must determine what care the debtor has promised to
carry out these obligations.
The terminology of obligations of “means and result” has often blurred the
duality of the problem. For one must do more than determine whether the
carrier has an obligation of means or result; one must decide to which situation
these obligations apply. For once it has been said that the carrier is under an
obligation of result in his duties, it does not tell us what these duties are.
Thus, we are faced with the problem: was an obligation consented to or
imposed in regard to a certain event, and if so, what degree of care is necessary
to carry it out? We must not only discover whether the care promised is of
means or result, but to what circumstances these duties of care apply.42
To proclaim that the “intention of the parties” answers the problem is an
extremely unsatisfactory, and indeed illogical, principle, which has somehow
become enshrined in the legal cant.
Firstly, in many areas, the courts are dealing with circumstances entirely
unforeseen by the parties at the time of the contract. As to who will bear the
responsibility for these unimagined circumstances there is no agreement; e.g.
the traveller’s being struck, by an unruly fellow passenger in the course of the
voyage, or the doctor in the midst of an appendectomy negligently removing
another diseased organ which must be extracted.
Secondly, the so-called intention of the parties is often but a euphemism
for a personal preference rationalized in legal terminology. Thus the carrier
will maintain he promised only reasonable care in transporting his passenger,
421 have indicated in a previous chapter that an obligation of result may be viewed as a promise of
care greater than that of means, i.e. the debtor promising all that is humanly possible, being exoner-
ated only by acts beyond his control (force majeure) or if prevented by the creditor himself, through
the latter’s fault.
McGILL LAW JOURNAL
[Vol. 8
(i.e. an obligation of means) while the latter will maintain that the train
If
company undertook to ensure his safe arrival (an obligation of result).
there ever was a conscious meeting of minds on this point it would be lost in a
flood of mutual recriminations.
While I shall discuss the inadequacy of the “intent of the parties” as a
determinant for contractual content at greater length, suffice it to say that
from the above examples, it is clear that the courts cannot glibly maintain the
pursuit of a common intent which is either non-existent or impossible to
discover.
What therefore is needed is a comprehensive meaningful theory to enable
the courts to deduce rationally the content of all contracts; a theory which will
consistently apply to all contractual situations, (whether of medicine, carriage,
dry-cleaning, etc. . .) and to which the courts may turn when circumstances
causing damage are unforeseen, or not adequately envisaged by the contract.
Two legal theories have been evolved albeit in other jurisdictions which
provide a ready explanation of the tendency of our courts either to give a
minimal content to contractual obligations, or to expand the content of the
contract to a wider sphere. While of foreign origin, the reasoning of these
theories is applicable to Quebec as a means of comprehending the Quebec
courts’ dual and inconsistent reaction to the problem of contractual content.
The problem of the content of contract appeared early in common law, and
the ferryman who overloaded his boat causing damage to the passenger, the
negligent surgeon, smith and barber are all to be found in early English
jurisprudence. At first almost all responsibility was held to be in tort, for the
false representation of trade. However, as soon as the idea of the “assumpsit”
or undertaking was developed, the unfulfilled contract became the real founda-
tion of many actions, and the problem of what Prosser has called the
“Borderline between Tort and Contract” arose.
However the common law soon made a distinction between what is called
misfeasance and nonfeasance. If the doctor acted negligently in the performance
of his duty this would be “misfeasance”, or a negligent performance. However
if he did not come at all, then there would be a complete non-performance, or
In other words when the defendant did something more than
non-feasance.
remain inactive he would be liable in tort,43 all positive acts resulting in
damages being delictual. Thus one might say that the Quebec courts in finding
the carrier or doctor delictually liable for his lack of skill for accidents have
been finding him guilty of a misfeasance, which they have declared brings
actions only in delict. They have drawn the line for contractual obligations at
43I do not wish to discuss the common law as such. I am only drawing on it to obtain a concept
which I find useful in explaining the trend towards minimal contractual obligations in Quebec Law.
It should be again emphasized that I am attempting to find a rational approach to the determination
of the content of contract, other than the mere meaningless statement that one is following the
consent or will of the parties.
No. 1]
REDISCOVERY OF CONTRACT
complete non-performance of the obligation. Once he undertakes it and by his
positive actions causes injury he is liable in tort. 4
As indicated there is another line of jurisprudence and doctrinal opinion,
which has extended the content of contractual obligations. Again the courts
have indicated they are following the consent of the parties, but as I have
pointed out this is really no explanation. The courts are writing obligations
into the contract, based in this case, largely on social policy; that is they are
basing their determination of what “was agreed to,” on what they feel society
should demand of the parties.
“Disputes and disagreements do come up, and the law of contract may thus be viewed as
an attempt to determine the rights and duties of the parties under circumstances that were
not anticipated in the same way… One can say that the court’s adjudication supplemented
the original contract as a method of distributing gains and losses.”‘ 5
The approach of writing into contracts obligations according to the social
needs and theories of the time has found much approval in France.
At the turn of the century with growing French industrialization, it was
found that the Code Napoleon, drafted for an agricultural country, placed too
great a burden of proof on the victim of industrial accidents, allowing the
employer to escape, too often, from responsibility. Thus French authors looked
for ways to insure greater protection to the workman. One of the means was
an attempt to broaden the contract of lease and hire to include an obligation
of security on the part of the employer; in other words, the employer, by
hiring the employee, promised him protection against work accidents (an
obligation of result, involving more than the promise of necessary care which
would not have shifted the burden of proof).
The courts however declared that there was no evidence of such an agreement
or meeting of minds on the subject, especially as the employer could justly
proclaim that he had no such intention of making such a contract, that is,
covering work accidents. However the theory had been formulated, that it
was possible to have a content of contracts greater than mere non-feasance, and
4A similar theory has been proposed by Savatier who views every contract as containing a benefit,
which is the content of the contract. A delict may be envisaged as a prejudice suffered other than
the loss of benefit pnvisaged by the contract. This theory is somewhat similar to the common law
one, and it is interesting to note Cardoza J.’s judgment in H.R. Mock Co. v. Rensrilaer Water Co. 247
N.Y. 160:
4
“If the conduct has gone forward to such a state that inaction would result not negatively
merely in withholding a benefit but positively or actively in working an injury…”
However Savatier’s answer is to me only another way of stating the problem. What is the benefit
envisaged by the contract; e.g. of the carrier? Is it to carry one to one’s destination, to provide the
facilities to carry (i.e. begin to carry) or to carry with all reasonable care?
The common law theory is more useful, since while Savatier envisages the withholding of a
nebulous benefit, nonfeasance involves the complete nonperformance, negative acts rather than
positive poor performance. One can foresee, of course, difficulties in applying this theory as indeed
any theory to the spectrum of possibilities that may occur in life, but it is a useful framework on
which to hang the tendency of Quebec courts to see no more than minimal undertakings in contract.
4H5 lolmes, The Common Law (1881) p. 222.
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in 1911 the obligation of security found its way into the contract of transport,”6
the court holding that the carrier undertook to transport the passenger safely
and soundly to his destination and was responsible for all damages en route,
not beyond its control.47
That this is a socially possible, and indeed even laudable decision is not
arguable; indeed one could even maintain that it is logically deductable from
the contract of carriage. However, one cannot rationalize such a decision as
resulting from the will of the parties. One can only explain it as being a policy
decision on the part of the courts.
“C’est par un acre d’autorit6 qu’elle a fait pntrer, dans ]c contrat de transport, l’obliga-
tion de s~curit .” 48
Or as Planiol, who is very critical of this trend, points out, it is to
“entrer dans le domaine des suppositions gratuites et faire l’arbitraire juridique.”4
In France this policy of reading clauses into the contract is quite pro-
nounced, however it should be realized that it does not emanate from the will
of the parties, but rather from the will of the judge.
Thus, we are still faced with the main problem of the selection of a rule
which will lead us to a consistent and rational determination of the extent of
contractual obligations. The continual references to the so-called intent of the
parties are meaningless unless one develops some rule to determine what
obligations not mentioned in the contract the parties have consented to or may
be presumed to have consented to.
The dominant view in Quebec law envisages only a consent to, or foresight of
minimal contractual obligations. 0 Contracts, as a course of damages, consist
4CCass. Civ., 21 Nov. 1911, (S.1912.1.73).
47It will be seen we are concerned with two problems which the terminology of means and results
tends to obscure. Firstly, for what circumstances or duties is the debtor bound by the contract.
Secondly, what degree of care (means or result) must be taken in preventing them or carrying them
out; i.e. what circumstances are envisaged and what degree of care promised for them?
48Brun, Rapports et Domaines des Responsabilites Contractuelle et Dflictuelle (1931), p. 207.
4PQuoted in Brun at p. 207, op. cit.:
It is interesting to note that his criticism of the French courts’ attitude has been on the grounds
that the parties did not consent to such an obligation. Thus for example, in a criticism of decisions
imposing an obligation of security on the head of an institution for accidents to his pupils Planiol
says:
“There is in these decisions of condemnation an abuse of the idea of contractual responsi-
bility. One should not find such responsibility except where there exists an obligation of
warranty voluntarily assumed …
it is certain that a person does not intend to undertake upon
himself the burden of accidents which may happen to his co-contractor by the fact alone that
he has the obligation to permit him to perform an act of whatever kind.”
I think that Planiol’s criticism misses the mark. He is saying the parties never agreed, and the
courts are saying that we feel this is the obligation which society demands of them. They are talking
on two different levels. The carrier does not agree to carry safely and soundly, nor the doctor to
use care. The courts impose these obligations, and if they are going to rationalize it as consent, then
Planiol’s criticisms are valid, but they are then valid of the whole trend of French jurisprudence
since 1911 and not simply of a few which Planiol feels go too far.
“0Note the statement of LetourneauJ. in Aero Insurance Co. v. Curtiss-Reid (1933) 55 K.B. 421, where
he held that in a contract of lease and hire the collapse of the building is not stipulated for; it is an
eventuality unforeseen in the contract. Cf., also Vineber& v. Foster, supra.
No. 1]
REDISCOVERY OF CONTRACT
only of complete non-performance, or non-feasance, and not misfeasance.
A rational doctrine of contractual content can be built on such a premise, by
which the parties are presumed to consent only to non-feasance, any positive acts
causing damage leading to delictual responsibility being outside the realm of
intent. Such an approach would result in a consistent judicial attitude, enabling
each party to know exactly what duties he has obliged himself to perform and
what consequences flow from his failure to live up to his contract; e.g. what
damages are payable, where the action will be taken against him, how long he
may be held accountable.
However, there has been a strong doctrinal and evolving judicial trend to
follow present-day French law in expanding the content of contract. Moreover
much of the expansion of contract has been to my mind unfortunately without
a rational a priori principle, such as non-feasance. This extension of contract
had involved two “approaches.” The first of these is theoretically based on the
consent of the parties, its proponents indicating that “it is clear” that the
parties intended more than mere nonfeasance, without stating the principle on
which they base themselves; the result to my mind is pure arbitrariness.
Thus, for example, Bissonnette J. in X v. Mellen states:
“qu’un lien contractuel se soit &abli entre le pare de 1’enfant et le chirurgien, ceci ne peut
souffrir de doute . .
. En effet, das que le patient p~nhtre dans le cabinet de consultation du
mndecin, prend naissance entre celui-ci et Ic malade, par lui-mme ou pour lui-mame, un contrat
de soins professionnels.”51
or as Nadeau points out:
“Une simple analyse du contrat form, dans lequel on ne peut manquer de voir l’obligation
de transporter la personne same et sauve 1 destination.” 2
Both appear, with all due respect, to misstate the problem. That there is
a contract between doctor and patient and carrier and passenger, there is no
doubt. As to what obligations they contain, there is the greatest of doubt, and
both Bissonnette and Nadeau fail to give any principle for their determination.
Indeed Nadeau can later accept the delictual nature of the doctor’s duties of
skill for accidents with no difficulty, the result of a lack of a guiding principle.
The second approach, prevalent in France, has been the determination of
contractual content by the means of social policy. This approach may be seen
in the early efforts of French theorists to include contractual obligations of
security against industrial accidents, in the contract of the lease and hire of
services, and in the efforts of such Quebec authors as Morin53 to write into the
contract of the carriage of persons an obligation of result, with regard to
accidents during the course of the voyage. Such proponents of contractual
expansion argued that the delictual recourse places too great a burden upon the
damaged victim, offering him but a poor recompense. Hence they feel the
contract should be expanded, depending on social exigencies.
51[1957] Q.B. 408-9.
” 1Nadeau, at p. 145, op. cit.
53Morin, op. cit., p. 32.
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However, the determination of the content of a contract based on social
desiderata has almost insurmountable obstacles.
Firstly, as a solution of social problems, it is of limited applicability. The
classicists believed that the burden of proof shifted with the origin of an
obligation, i.e. whether it was contractual, or delictual; we have come to
believe that the burden of proof shifts rather with the nature of the duty, i.e.
whether it is of means or of result. Thus one might say that while earlier
theorists viewed all contractual obligations as being of result, we, in greater
harmony with the Code, 4 envisage numerous contractual obligations of means,
whereby the burden of proof is still placed upon the victim. Thus there would
appear to be no social reasons whatsoever, why the obligation of a doctor, or
. , should be contractual or delictual. It is obvious that
hairdresser, etc. .
social policy cannot provide a comprehensive basis for contractual expansion,
but only the incentive.
Moreover from a theoretical point of view the question of social policy does
appear to be irrelevant to the problems of a contractual-delictual delimitation.
The division of obligations into those of means and result has tended to blurr
the dual nature of contractual obligations. The party to a contract promises
two things. Firstly, he undertakes certain duties of care (means or result), but
these are undertaken only in regard to certain circumstances, actions and
eventualities. The problem of determining the content of contract is largely a
problem of determining to what circumstances the duties of care apply, and
then, what amount of care was promised. Surely social policy cannot determine
whether a contract will cover the numerous circumstances that may arise
between the two parties. It is only after one decides that such circumstances
are to be contractually oriented that social policy may play a role in deter-
mining whether the contractual obligations undertaken are to be of means or
result, e.g. social policy cannot determine whether a contract will cover the
numerous circumstances that may arise between two parties.
Lastly, if one did, in spite of the above difficulties, decide to allow the judge
to determine on the basis of social desiderata, as he views them, which of a
myriad of circumstances would be contractually envisaged, and which delictual-
ly oriented, one could see that the entire field of responsibility would be opened
to the Cybella of confusion and chaos. Neither the parties, nor society, nor
even the judges themselves would have a basis of determining the extent and
consequences of their obligations until a judge had spoken and even then this
decision would be subject to personal preferences of another.
While one should not be blind to the extent of judge-made law in our society,
surely one should not make such a practice a basic principle of our legal system.
Let the legislature enact social legislation, and let the judge apply principles
which lead to certainty.
54Thus the Code speaks of contractual obligations of means on the part of the mandator, lessee,
depositee and many others. Cf., arts. 1710, 1626 and 1802.
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REDISCOVERY OF CONTRACT
As I have noted above there are, of course, strong and impelling social
arguments for an expansion of contract. Since delictual obligations of care,
with the exception of those imposed by art. 1055 C.C., are always of means,
the shift of the burden of proof for many accidents onto their perpetrator, or onto
those who have the facts more readily at their disposal, can only be achieved
by the legislator (e.g. through the Workmen’s Compensation Act) or by making
such duties, obligations of result. This latter goal can only be achieved by an
expansion of contract, which I feel is a social necessity.
However, while social imperatives may provide the incentive for such an
expansion, the expansion itself must be based on legal wisdom, and not on the
abdication thereof, through the apotheosis of social policy. For it is only
judicial wisdom which will provide the social neutrality of legal principles,
transcend particular viewpoints and
temporary interests and provide an
adjudication process both neutral in its ideology and logical in its application.
A NEW APPROACH
the social position assumed by the parties
Such a principal may be found in examining the nature of the contract and
particularly,
to the contract.
One might say that each contracting party by entering into the agreement
assumes a broad social position vis-a-vis the other party, from which events
and consequences flow. Thus the doctor towards his patient assumes the position
of someone who is going to take certain steps to cure him. If, as a result of
this position, certain accidents occur, I maintain that these accidents flowing
from the general contractual position assumed by the doctor, (i.e. the nature
of the contract of medical care) are contractual. Similarly the carrier, ski-tow
and carnival operator have assumed the position of carrying the passenger in
a public conveyance. Accidents resulting therefrom are part of the contractual
relationship 5 flowing from the position of transporting passengers.
“Lorsqu’en vertu d’un contrat quelqu’un regoit la puissance de travail d’un homme, com-
ment concevoir que cc ne soit pas 6galement en vertu d’un contrat qu’il s’engage A prendre
toute les precautions n&essaires pour r~duire au minimum les risques inh&ents aux tiches
auxquelles il I’emploiera.” 56
Similarly, the restaurateur undertakes the position of preparing and serving
food to his customer. It is obvious that as a result of his preparation, illness is
a logical possibility and eventuality, and hence poisoning resulting from poorly
prepared food is a consequence envisaged by the contract; i.e. flows from the
social position agreed to by the restaurateur through the medium of his contract.
A recent case involving the serving of food is instructive along these lines.
The employee of a restaurant serving the food in a rather extravagant manner
injured the plaintiff. Clearly the restaurant had undertaken to serve the food
151t will be noted I am not discussing who will bear the risk for these accidents, or what degree
of care is necessary. I am simply stating that resulting from the nature of the contract, or social
position assumed by the parties certain accidents will flow.
5GMazeaud, op. cit., at 201.
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to the plaintiff by its contract, and accidents resulting therefrom are contractual-
ly envisaged.
Should the waiter have caused the damage while serving another client, the
relationship should have been delictual, since the accident occurred not from a
relationship assumed vis-?-vis the client, but from a relationship assumed with
another party, to which the client would be a third party. A distinction must
be made between the general social position of the restaurateur and his particular
status vis-A-vis his contractor.
Obviously the question of social position is not without difficulty. Its
determination in borderline cases would depend on two factors. First, a deter-
mination of the CONSENT to a social position vis-A-vis a particular person,57
and secondly the interpretation by the courts, of certain terms and concepts.
In the case of the children’s camp, clearly the camp has undertaken the
social position of providing amusement and recreation, and accidents resulting
from let us say a poorly driven bus on a conducted tour, flow from this assumed
contractual position.
However, what is the situation of the boarding school? It undertakes to
provide for the education of the child as well as room and board, and some
athletic activity. Accidents resulting therefrom are contractual. However,
should a supervised bus trip take place, would this be contractual or delictual?
This would depend upon the meaning the court gave to the word education;
i.e. would it include educational visits to another city, or would this be
considered an extra recreation not part of education, and hence the basic social
position of the school. In this latter case the problem would be: Had the
parties expressly consented to assume this obligation accessory to the social
position of the parties? This would be a problem of the express consent, and the
existence of accessory obligations which I will now discuss.
A theoretical difficulty in the solution outlined above lies in certain
accessory obligations not being part of consensual social position but resulting
unilaterally from the relationship of the parties; e.g. the hotel keeper in the
country will often meet his clients at the station and drive them to the hotel;
or the private school will provide a tour of the city which results in injury to
the children entrusted in its care, or the landlord will install an elevator in the
building which collapses, or the ski-tow serving hot chocolate at the bottom
of the hill gratis, poisons a skier.
The problem is not as difficult as it first seems. For in many cases there is
no contract, no juris vinculum; (e.g. as in benevolent transport,5″ which the
courts have held to be governed by art. 1053 C.C.).
r7Thus the doctor, who undertakes to perform a specific operation; e.g. appendectomy, and dis-
covering another ailment, removes the diseased ovaries, should be held delictually liable for accidents
resulting from any treatment for that disease, unless the other party consented to it. The social
position clearly consented to was to cure a diseased appendix, not diseased ovaries. B. v. M. (1939)
77 S.C. 298.
s8Cf., McLean v. Pettigrew [1945] S.C.R. 62.
No. 1]
REDISCOVERY OF CONTRACT
One cannot imagine the guest of the hotel suing the hotel for not picking
him up at the station, or the parent suing the school for not properly
entertaining his son. Thus the problem here does not appear to be one of content
of the obligation, but the very existence, as part of contract, of this accessory
obligation itself. In other words, what is involved is the problem of whether
there has been consent to this obligation, or whether it is merely a gratuity
performed on the part of the hotel. Thus, should the hotel in its brochure
indicate that included in the price of the room will be transportation to and
from the station, it may be assumed to have consented to such a contractual
obligation with the customer. Otherwise, we are in the field not of contract
but of delict. Thus the courts must decide, is one of the prerequisites of art. 984;
i.e. consent present, and has the party indeed consented to the extra obligations.
These obligations are not part of the general posture or status created by the contract.
They are more or less a gratuitous service added on,59 unless explicitly made
part of the contract.
Thus the owner or supervisor of a boarding school wouid be responsible for
accidents happening to children if they flow from recreational activities, i.e.
assuming the court does not define them as educative, only if these are expressly
agreed on by the parties, otherwise they are gratuitous unilateral acts whose
performance cannot be demanded by the parent, and which are within the
delictual regime.
The idea of contractual consequences flowing from the social relationships
assumed by the parties has, I believe, a measure of support in the civil code in
art. 1024, an article whose full implications have rarely been discussed.60
Art. 1013 et seq. in the chapter on the interpretation of contracts deal with
expressed but unclear contractual provisions. Art. 1024 on the other hand
deals with the interpretation of contracts when the parties remain completely
silent. I believe that a reasonable interpretation of art. 1024 will indicate
this is a general article applying to all contracts, which will enable the
expansion of contractual content to take place. The scope of art. 1024 C.C.
depends on whether one uses the French or English translation of the article.
According to the English version of art. 1024,
“The obligation of a contract extends not only to what is expressed in it but also to all
the consequences which, by equity, usage or law are incident to the contract, according to its
nature.”
This version of art. 1024 places the emphasis on the words equity, usage and
law which appear to apply to contract when the parties are silent. However,
the French version adds another source, namely the “nature of the contract”,
51A problem would arise in the cases where a customer knew of the extra service, and this was the
reason for his signing the contract. Such knowledge would be personal and there being no exterior-
izaton of it, it is a meeting of minds, not expressed, and hence not valid.
09Dennis, M., (1960) 7 McGill L.J. 73.
McGILL LAW JOURNAL
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or as I have expressed it, the social position assumed by the parties which
makes it differ from any other agreement.
Les obligations d’un contrat s’6tendent non seulement A ce qui y cst exprim6, mais encore
a toutes les consequences qui en decoulent, d’apras sa nature ct suivant 1 iquit6, l’usage ou
la loi.”
Trudel, Langelier and Cr~peau all view the nature of the contract as an
important source of contractual obligations,
“On est d’abord frapp par l’absencc de distinction entre tel ou tel contrat. Toute conven-
tion est soumise a l’art. 1024 C.C.: l’6quit6, la loi, l’usage et ]a nature de l’engagement servent
toujours de complkments … Plus encore l’art. 1024 C.C. est lc principe premier de l’inter-
proration contractuelle.” 61
and again at p. 342: “A la lettre des stipulations s’ajoute tout ce qui en d6coule
d’apras leur nature, l’6quit6, l’usage et la loi.”6 2
However, it should be realized that both Trudel and Langelier (unlike
Cr~peau), do not give this phrase the wide meaning I would extend to it.
Indeed I have been unable to find any jurisprudence so interpreting it.63
Thus I believe the Code offers support to the theory that from the social
position assumed and created by the contract and the parties, certain conse-
quences flow logically and naturally, which form part of the contractual
relationship.
Once one has decided that the consequences flowing from the nature or
social position assumed by the party, with his co-contractor, are to be dealt
with contractually, the question then arises: what is the debtor’s responsibility
for those events, resulting from his having voluntarily assented to or assumed a
certain social position?
Whether the parties be strangers or bound by contract, once the debtor can
cause damage to another, it is his duty to take precautions of a reasonable
nature to prevent this damage from occurring. In other words, I would write
into all contracts a duty of care or an obligation of means. 4
As far as the obligation of result is concerned, this is largely a matter of
social policy in each contract, and it becomes difficult to see as a matter of legal
61Trudel, Traiti de Droit Civil deQutbec, vol. 7, pp. 338-9. Cf., also F. Langelier, Cours de Droit Civil,
vol. 3, p. 415.
6The concept of obligations flowing from the nature of the contract is also envisaged by art.
1612 C.C.:
“The lessor is obliged by the nature of the contract”:
1. To deliver to the lessee the thing leased.
2. To maintain the thing in a fair condition for the use for which it has been leased.
3. To give peaceable enjoyment of the thing leased during the continuance of the lease.
63There are but a handful of cases on art. 1024 C.C., mostly dealing with usage.
64Even if one does not accept the social argument that every contract contains an obligation of
means, one might write in this obligation to most contracts as resulting from the nature of the
agreement. Thus the business man or professional in entering into contract, holds out a certain skill
in his calling, i.e. he promises to execute with the skill and care which he has held out to the other
by his position in society.
No. 1]
REDISCOVERY OF CONTRACT
principal when a person should be obliged to merely take reasonable care and
when he should go beyond and ensure a result. The answer depends obviously
on one’s social views, exemplified by the following statement of Mazeaud’s,
in considering whether the obligation of the employer in the contract of lease
and hire should be to take care to prevent accidents to his workmen or to
guarantee precautions against accidents.
-11 semble incontestable en effet que l’employeur a l’obligation de prendre toutes les
prfcautions utiles pour assurer autant que possible la scurit6 de son employ6 et l’on ne voit
pas pourquoi cette obligation, bien que rsultant de la loi et des principes gfnraux du droit,
ne s insererait pas dans le contrat autant que l’obligation de transporteur. Lorsqu’cn vertu
d’un contrat quelqu’un regoit la puissance de travail, d’un homme comment, concevoir que cc
ne soit pas 6gaIemcnt en vertu d’un contrat qu’il s’engage i prendre toutes les precautions
ncessaires pour r~duirc au minimum les risques inherents aux tiches auxquellcs il 1’emploiera.” 6 5
Traditionally in France the courts have determined on the grounds of
modern social and economic philosophies, whether the circumstances bringing
contractual responsibility into play involve obligations of means or result.
I am not convinced that this is the proper role for the courts, but rather that
the legislature should deal with such matters. Thus, for example, should it
be found that railroad accidents are too manifold, Parliament should impose
obligations of result to limit them. This demands sociological and economic
studies-a task better suited to the law makers. However, if the courts are to
impose it themselves quasi-legislatively, they should do so with restraint.
Means is the basic obligation of our law and result should be only imposed
with the greatest of care.
There is but one area where I feel the courts may justifiably declare an
obligation to be one of result without the legislator, and that is where the
burden of proof is too difficult on the plaintiff, since the defendant may have all
the facts and technical knowledge and the plaintiff may, at great difficulty
and expense, have to discover facts easily hidden. In such cases the courts are
justified in saying that the burden will be on the defendant; in other words,
that the obligation is one of result. This, I feel, is a matter upon which the
courts may decide; otherwise they should await the decision of the legislator.
In conclusion, I may state that what I have attempted to arrive at is a
principle for a rational approach to a determination of contractual content.
I have attempted to give a rationale to the minimal content often given to
Quebec contracts by borrowing on the common law distinction between non-
feasance and misfeasance. However, I feel not only is it logical to extend the
content of contract (which has been done in France and for which there are
important advocates in Quebec among the authors and the jurisprudence) but
that if one wishes to impose more obligations of result, which will become of
greater necessity in society, only an expansion of contract – one based on
legal principles –
can achieve this social end. However I feel much of the
extension has been done either with complete and contradictory arbitrariness
(often resulting from a mistaken assimilation of the problem of when a contract
nMazeaud, op. cit., at 201.
McGILL LAW JOURNAL
[Vol. 8
is formed to its content,)66 or in the name of social policy, which I believe to be
a pernicious doctrine.
I believe that the social position of the parties or nature of the contract
reinforced by the French version of art. 1024 will provide such a valid principlc.
The so-called “consent of the parties” cannot determine the extent of the
obligations undertaken by them, for it is obvious that the parties do not, or
cannot consent to all the consequences which might occur.
Where consent can play a valid role is in determining the social positions
consented to by the parties vis-a-vis one another. 7 Such a theory would give
a legitimate role to consent, a consent which can be determined RATIONALLY
by the courts.
Once the social position of the parties is determined then the consequences
and accidents flowing from their assumed social relationships may be considered
as being inherent in the basic position they have assumed contractually and
hence viewed as part of the contractual relationship.
6Cf., Bisscnnette J. in X v. Mellen, supra.
6The determination of the social position of the parties, created by their consent is not without its
borderline or penumbral problems. However, I have tried to indicate a rational solution to these
based on consent and rational definition.
