THE REDHIBITORY ACTION AND THE
“REASONABLE DILIGENCE” OF ARTICLE 1530 C.C.
John W. Durnford*
1. Introduction.
2. The reason for the requirement of “reasonable diligence”.
3. The distinction between the redhibitory action and the action
to annulfor error.
4. The length of the “reasonable diligence” delay.
A. Introduction.
B. The special case of the animal stricken with tuberculosis.
C. Factors governing the length of the delay.
(i) The nature of the defect.
(ii) The date from which the delay begins to run.
(iii) Fraudulent representations as to the condition of the thing sold.
(iv) Settlement negotiations and undertakings or efforts by the vendor to remedy
the defect.
(v) The existence of an express guarantee.
5. What the buyer must do.
6. Must the failure to act with reasonable diligence be pleaded?
7. The types of action covered by article 1530 C.C.
8. Conclusion.
1. Introduction.
In the contract of sale the vendor is obliged to warrant the buyer against
the latent defects of the thing sold (article 1506 C.C.). In the absence of a
private agreement of warranty, it is the legal warranty set forth in the Civil
Code which applies (article 1507 C.C.). The parties are free, however, to
provide in their contract for their own terms of warranty (article 1507 C.C.),
which is frequently done in such fields as appliances and automobiles. –
Where the thing sold suffers from serious defects which were not apparent
and of which the purchaser was ignorant (articles 1522, 1523 C.C.), under the
legal warranty the buyer may take the redhibitory action to have the sale
cancelled, the action quanti minoris fqr a reduction in price (article 1526 C.C.),
or a variant of the latter, consisting of a claim for the recovery of the cost of
removing a latent defect. The criteria of what constitutes a serious defect are
*Associate Professor of Law, McGill University.
No. 1]
REDHIBITORY ACTION OF ARTICLE 1530 C.C.
given in article 1522 C.C.: those latent defects in the thing sold and its ac-
cessories as render it unfit for the use for which it was intended or so diminish
its usefulness that the buyer would not have bought it, or would not have
given so large a price, if he had known them.
The Civil Code, having given the buyer the right to sue his vendor because
of latent defects in the thing sold, then specifies that his action must be taken
with “reasonable diligence” (article 1530 C.C.). The purpose of the writer is
to ascertain what is meant by this term and how it has been interpreted by
our courts.
2. The reason for the requirement of “reasonable diligence.”
Unless it is otherwise stipulated in the contract, the vendor’s warranty
extends only to those defects which existed at the time of the sale.’ A long
passage of time would make it difficult, if not impossible, to establish that the
defect really was present at the time of the sale. The seller must consequently
be protected from facing a claim which it would be exceedingly difficult to
disprove owing to the passage of time, 2 especially in the field of animals,
where an illness can strike suddenly or may be caused by poor treatment on
the part of the buyer, or in the more modem field of appliances and automobiles,
where deterioration can be rapid, particularly where the item is sold second-
hand.
There is a more fundamental reason, too. The law recognizes that it is not
in the public interest that the rights of creditors who are not diligent in pro-
tecting them should be allowed to remain enforceable for an indefinite period,
to be pressed a long time afterwards upon the unwary defendant or his heirs
who may no longer have the evidence with which to make a defence.
The law protects us against old claims by the means of extinctive prescrip-
tion, the other purposes of which are to reduce the amount of litigation and
to increase the stability of society.’ While the delay of article 1530 C.C. may
not be exactly the same as ordinary prescription, the same principle applies.
3. The distinction between the redhibitory action and the action
to annul for error.
Extinctive prescriptions are of widely varying lengths of time: for example,
the general period is thirty years (article 2242 C.C.), for commercial claims it
is five years (article 2260 C.C.), and for damages resulting from bodily injuries
1Mignault, Le Droit Civil Canadien, VII, page 114 (by inference); Faribault, Traiti de Droit Civil
du Quibec, XI, page 301; Marler, The Law of Real Proptrty, page 251.
‘Mignault, op. cit., VII, page 120; Brown v. Wiseman (1901) 20 S.C. 304, at 307-8 (Archibald, J.);
Fic-patrick v. Tremblay (1915) 21 R.L.n.s. 148, at 158 (Court of Review); Laverdure v. Lahaie [1945]
R.L. 69 (Loranger, J.).
3Mignault, op. cit., IX, pages 336-337; Rodys, Traiti de Droit Civil du Quibec, XV, pages 31-32;
Gosselin v. Beaulieu [1958) S.C. 23 (Marquis, J.).
McGILL LAW JOURNAL
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it is one year (article 2622 C.C.). They are each, however, for a definite period
of time. In contrast, the term “reasonable diligence” is by nature elastic.
The redhibitory action is separate and distinct from the action to annul by
reason of error as to the substance of the thing.4 Thus if I pay a substantial
sum for a painting believing it to be the work of a famous artist and later
discover that it was done by an unknown, I am entitled to demand the resilia-
tion of the sale on the ground of error. A prescription of ten years will apply
to this latter action (article 2258 C.C.) instead of the “reasonable diligence”
of article 1530 C.C. 5
4. The length of the “reasonable diligence” delay.
A. Introduction. Although the general principle may be put forth that
the delay must be short enough for it to be evident that the defect existed
at the time of the sale while at the same time long enough for such defects to
have revealed themselves, 6 the length of the delay will also be affected by
various factors, some of which we shall now examine.
B. The special case of the animal stricken with tuberculosis. Article 1530
C.C. specifies that as regards an animal stricken with tuberculosis the red-
hibitory action will be considered as having been taken within a reasonable
delay if taken within ninety days of the delivery. The article adds that the
vendor will have the burden of proving that the animal was not so stricken
at the time of the sale. Presumably the reasons for these provisions are the
lengthy nature of this illness and the difficulty of discovering it, together with
the desirability of stamping out a disease injurious to human health (in the
case of a cow, for example) by putting a heavier onus on the vendor.
The ninety day delay concerning tuberculosis is in sharp contrast to the
short delay generally called for in the case of an animal.
C. Factors governing the length of the delay. The speed with which the
buyer must act in order not to lose his rights will depend inter alia on the
following factors:
(i) The nature of the defect.
As already seen, we must exclude from this discussion animals stricken
with tuberculosis, which are specifically covered by article 1530 C.C.
For example, see C61 v. Laroche (1890) 16 Q.L.R. 15 (Andrews, J.); Socilt Coopfrative Agicoh de
la Rivire Malbaie v. Girard [1955] Q.B. 542, together with the case comment thercon by Gonthier
(1956) 34 Can. B. Rev. 316. See also Manseau v. Colkie [1955] S.C. 2 (Perrier, J.).
‘Mignault, op. ci., VII, pages 114-115; Faribault, op. cit., XI, pages 300-301; Ripert ct Boulanger
Traiti de Droit Civil d’aprks hc Traitl de Planiol (1958), III, pages 509-510; Walter Johnson, “The Red-
hibitory Action” (1952) 12 R. du B. 322, footnote 2; Gfrald Aubin, “De la ‘Diligence Raisonnablc’
dans l’action r&lhibitoirc” (1955) 2 Les Cahiers de Droit 16, at 17; see also Denis v. Montreal Invest-
ment and Realty Company Limited (1918) 54 S.C. 116 (Panneton, J.); Canadian Armature Works Inc. r.
Beaulieu [1953] R.L. 129 (Montptit, J.).
SMignault, op. cit., VII, pages 114 and 120; Hanakova v. Girard [1957] S.C. 344 (Brossard, J.);
Simoneau v. St. Jacques [1958] S.C. 325 (Marquis, J.).
No. 1]
REDHIBITORY ACTION OF ARTICLE 1530 C.C.
Traditionally, a very short delay was allowed in the case of sick animals
because of the difficulty of establishing that the sickness existed at the time
of the sale. Eight or nine days was the period generally settled on, unless the
circumstances were such that the buyer could not have acted sooner.7 The
source of this eight or nine day delay rule was apparently a usage in Paris
under the old French law. 8 Pothier 9 tells us that under the Roman law the
delay was six months but that in France the local usages governed and they
allowed much shorter periods. He says that in his own district the delay for
the redhibitory action in the cases of horses and cows was forty days from the
date of delivery, but he cites Mornac to the effect that in that latter author’s
day the delay had been nine days. Pothier mentions that under the Coutume
du Bourbonnois the delay was eight days. We find that in Normandy the delay
was thirty days. 10 While article 1648 C.N. is almost identical to the first
paragraph of article 1530 C.C., laws subsequent to the Code Napoleon were
passed in France which set fixed delays for domestic animals of nine days or
thirty days (depending on the types of defects giving rise to the redhibitory
action which were specified in the legislation), which delays were applicable
to the whole of France, thereby replacing the varying delays of the local
customs.,,
The foregoing French legislation does not apply to Quebec; in fact, the codi-
fiers decided against adopting specific delays in favour of leaving the period
to local usage and the discretion of the Courts.” 12 Thus article 1530 C.C.
“….
provides that the redhibitory action “. .
. must be brought with reasonable
diligence according to the nature of the defect and the usage of the place where
the sale is made.”
It is to be noted that the usage to be applied is that “..
of the place where
the sale is made.” It is respectfully submitted that this excludes the automatic
Faribault, op. cit., XI, pages 302-303; Mignault, op. cit., VII, page 120; Dart v. Kemdy (1871)
15 L.C.J. 280 (Berthelot, J.); DaM Titreault v. Duffy (1899) 16 S.C. 89 (Court of Review); Brown v.
Witman (1901) 20 S.C. 304, at 308 (Archibald, J.); Guilmette v. Langevin (1907) 31 S.C. 331 or 13
R.L.ns. 154 (Court of Review); Trimblay v. Socil d’Agriculture do Charkvoix (1930) 48 K.B. 171
(cited in Payeurv. Toussaint (1939) 67 K.B. 463 at 471); Rimiard v. Beaulu [1962) S.C. 657 (Challies,
J.). For an example of circumstances preventing the buyer from acting within eight days, see Picard
v. Morin (1887) 13 Q.L.R. 223 (Angers, J.).
Faribault, op. cit., XI, pages 302-303; Mignault, op. cit., VII, pages 120-121; Argon, Imtita tion
am Droit Franfais, 8th edition, (1753), II, pages 245-246.
9Pothier, Traiti de Vente, ed. Bugner, paragraph 231.
‘Paytai v. Towtsaint (1939) 67 K.B. 463, at 469-470.
t Duvergier, Colka ion complUt des Lois, Direts, Ordonnances, RZgkments a Avis d Conil d’Etat,
(1838), XXXVIII, pages 329ff; Rogron, Code Civil Expliqui par ses Motifs, 14th ed. (1850), II, pages
1537ff; Marcad6, Explication Thioriue a Pratiue du Code Napollon, 5th edition, (1855), VI, pages
283-284; Guillouard, Traitl de -la Vente a de F’ichange, 2nd edition, (1890), I, page 483; Dalloz,
Encylopidie jfidijqu, Riptadre de Droit Civil (1955) V, pages 729-730 (paragraphs 135ff); Aubry cc
Rau, Le Droit Civil Frangais, 6th edition, (1946), V, pages 88ff.
“Codifiers’ fourth report, page 14.
McGILL LAW JOURNAL
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application of the old Parisian usage of nine days. This period would therefore
only apply if this usage had become established in this Province. While it is
true that a number of judgments have applied a delay of eight or nine days
(cited supra), there is an important series of judgments to the effect that this
period does not apply, and there being no other usage in the Province,” the
question as to whether the buyer has shown reasonable diligence will be in the
discretion of the court, which will base its decision on the other criterion in
article 1530 C.C., namely the nature of the defect (which will depend in part
on the nature of the object) along with the circumstances of the case.14 Let us
examine in particular the Court of Appeal decision in Cayer v. Drolet 5 and the
Superior Court judgment in Mercier v. Saucier.16 While these cases involve the
sale of cows rather than of horses, both are domestic animals giving rise to
similar problems, and the judgments disclose a generally less rigid outlook on
delays and a greater reliance on the ability of medical experts to establish the
existence of a disease for a more extended period into the past than was previous-
ly possible.
In Cayer v. Drolet, plaintiff had bought from the defendant seven cows on
November 9, 1948, which were immediately transported to plaintiff’s farm.
On arrival (on November 9), one of the cows was found to be sick. It was
treated by a veterinarian on the following day and lived until November 25
when it died. A second cow died on November 11 and a third on November
16. Two more of the cows purchased died between this latter date and No-
vember 25 (we are not here concerned with further cows mentioned in the
judgment as already belonging to the purchaser which also took ill or died).
The action was taken on December 18, being forty days from the date of the
sale and of the appearance of the illness of at least one of the cows. The ma-
jority of the Court of Appeal’17 took the following into consideration: the
…
circonstances particuli~rement p~nibles dans lesquelles s’est trouve le
demandeur, et de l’inexp~rience que d~montre sa conduite”, the fact that the
cow which had been found ill on the day of the sale and delivery (November 9)
only died on November 25 and it was not until December 5 that a medical
3Girald Aubin, “De la ‘Diligence Raisonnable’ dans Faction r~dhibitoire” (1955) 2 Les Cabiers
de Droit 16, at the bottom of page 16.
“4Lanthier v. Champagne (1874) 23 L.C.J. 253 (Court of Appeal); Donihee v. Murphy (1879) 2 L.N.
94 (Court of Appeal); Tiernan v. Trudeau (1887) 15 R.L. 444 (Mathieu, J.); Houk v. Ceti (1887) 13
Q.L.R. So (Court of Appeal), (there was an express guarantee but the judgment does not seem to
have turned on this); La Compagnie du Chemin de Fer Urbain de Montrial v. Lindsay (1890) 18 R.L.
695 (Court of Appeal); Cayerv. Drolet [1950] K.B. 790 at 796; Mercier v. Saucier [1960] S.C. 305 (Lacroix,
J.); Baker v. Provancber (1903) 24 S.C. 137 (Langelier, J.); I think it would also be fair to cite Brown
v. Wiseman (1901) 20 S.C. 304, at 306-7 (Archibald, J.) and Picard v. Morin (1887) 15 R.L. 317 (Angers,
J.)-in this case there existed both an express guarantee and difficult circumstances. See also the
remarks of St-Jacques, J., in Gauthier v. Comite de Realisation de la Citi-Jardin [1955] Q.B. 100, at 106.
15[1950 K.B. 790.
1[1960] S.C. 305 (Lacroix, J.).
r7per Gagn, J., at page 796 of the report.
No. 1]
REDHIBITORY ACTION OF ARTICLE 1530 C.C.
certificate was received establishing the sickness that had attacked the cows,
and that the lawyer whom plaintiff then consulted could not be blamed for
taking about ten days to prepare his action. One can sense here a certain measure
of embarrassment on the part of the Court at having rendered what may have
appeared to them to be a decision based on equity rather than strict law. It
is true that generally speaking the delay begins to run from the date that the
defect appears (see infra), which would mean the date the cow showed signs
of sickness rather than the date of death. Mr. Justice St. Jacques dissented,
simply holding that the delay had been unreasonable.’ 8 Was this really so?
We have already seen that the aims of article 1530 C.C. are to cause the delay
to be short enough so that it is evident that the defect existed prior to the
sale and to prevent vendors from being plagued by claims when they are no
longer able to defend themselves. It is submitted that both these aims have
been fulfilled in this case. It was clear that the sickness was in existence at
the time of the sale, and forty days can hardly be considered as prejudicing
the vendor where the medical evidence is plain.
In Mercier v. Saucier, plaintiff had bought a farm, including its equipment
and cows, on April 23, 1957. In mid-July plaintiff discovered, on being so
advised by a government agricultural expert, that the animals had brucellose
(a disease in which animals drop their young prematurely), which constituted
a hidden defect as it was only discoverable by means of tests. The action was
taken on August 22. The Court held that the purchaser had shown reasonable
diligence despite the four months’ delay since the date of the sale. The judg-
ment seems to have turned on the fact having been clearly established by the
medical experts that the sickness had existed prior to the sale, and that the
period in which “reasonable diligence” must be shown runs only from the
date the defects appear. This resulted in a delay of one month which was held
not to be excessive, though there was a mitigating factor in that apparently
there had been discussions between the parties before the suit was taken.
Even Rernillard v. Beaulieu,'” in which Mr. Justice Challies stated that the
eight day rule applies to redhibitory actions relating to sales of animals, 0
can be cited in support of the proposition that longer delays are now more
reasonable than formerly because of improved medical knowledge. The horse
had been purchased and delivered on July 29, 1958, and was first saddled by
the buyer on September 15 when it was discovered that the horse limped.
Treatment by plaintiff having failed, an x-ray was taken on about October
first. While the judgment does not expressly give the date of the institution
of the action, it appears to have been taken on November 7, being over three
months after the sale and five weeks after the discovery of the defect. While
it is true that the learned judge justified the long lapse of time on the basis
“8at page 798 of the report.
19[1960] S.C. 657 (Challies, J.).
20at page 658 of the report.
McGILL LAW JOURNAL
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of the principle that an express guarantee has the effect of excluding the re-
quirement of “reasonable diligence”, it is significant that the evidence of the
medical experts to the effect that the arthritis which had been disclosed by
the x-ray must have existed at the time of the sale was taken into consideration.
We have seen, then, evidence of what might be the beginning of a new
trend as regards the length of delay that the courts will allow in the case of
animals. We started out with the enforcement of a short period which seems
to have been allowed to be lengthened partly as a result of a more liberal
attitude towards legal requirements but much more as a result of the contribu-
tion of medical science which in many instances will be able to show that a
defect had originated further back than could have been established in an earlier
era. This trend would seem reasonable as the seller is not prejudiced where
the defect can be clearly established as having originated before the sale,
provided that it is not allowed to become extended to the point where the
general objective of prescription is not fulfilled, i.e. that of protecting persons
against claims which in the interests of society should not have been allowed
to remain enforceable for so long. The exercise of the discretion given to the
judges by the term “reasonable diligence” should certainly prevent this from
occurring.
While cows are still very much part of the modern scene, the horse has to
a great extent been supplanted by the ubiquitous automobile, one of the fastest
depreciating and hence one of the most expensive items that can be bought.
It is a thing which nearly every North American feels he has to own, whether
he can afford it or not, either for work or so-called pleasure.
Secondhand cars share with animals the ability to develop defects with
great suddenness, with the result that the “reasonable diligence” of article
1530 C.C. has been interpreted as being of a short duration. For example, in
the car was acquired by an exchange on October 2, 1943,
Sirois v. Demers, 2
plaintiff was told of the defects by a mechanic on October 4 or 5, and he sued
on October 26. This was held to be too late.
As to new cars, the reasons for there seeming to be little jurisprudence on
this are that presumably few of them suffer from defects serious enough to meet
the criteria of article 1522 C.C.; a conventional warranty for a definite period
is furnished; 2 and, generally speaking, the automobile manufacturers are
reluctant, in this hotly competitive field, to allow too many of their customers
to remain seriously dissatisfied because of the effect this would have on the
volume of future sales. It might be mentioned en passant that the Supreme
Court, in Touchette v. Pizgagalli,23 discussed the interesting problem that arises
where the manufacturer, having stipulated a conventional warranty which
excludes the usual legal warranty, fails to fulfil the terms of the former.
-l[ 1 9 45 ] K.B. 318.
2 the effect of a conventional warranty of a definite period is discussed under the heading “The
existence of an express guarantee”(infra).
23[1938] S.C.R. 433.
No. 1]
REDHIBITORY ACTION OF ARTICLE 1530 C.C.
The following is a selection of delays relating to moveables that have been
held to be too long: five months for cement blocks,2 4 over six months for
cement, 25 eight or nine months for hay,28 six months for toilet articles such as
combs and brushes, 27 over a year for wine,2 8 three or four months for tobacco, 29
a year for tobacco, 0 over six months for electric light bulbs,8 1 six or seven
months for paint,32 four months for a machine, 3 one year for a machine, 4
over a year for a machine,3 5 ten months for an electric refrigerator, 6 nine
7 six weeks for a horse,38 thirty-two days for
months for plumbing “nipples”,
a horse,39 in two successive exchanges of a horse, two months after the first
exchange and forty days after the first action, for the action in warranty by
the transferor in the second exchange against his auteur, 40 over a year for an
automobile. 41
The nature of houses is such that defects in them sometimes take longer to
appear and so it would not be fair to the purchaser to apply too short a delay.
For example, it may be necessary for a house to undergo at least part of the
winter season if defects in the heating system or in the structure are to be
discovered. At the same time, it will be easier than with an animal or a car
to establish, despite the greater lapse of time, that the defect existed at the
time of the sale. 42 Thus in Bourdon v. Lamontagne,43 the defect (the collapse of
a floor in a new house) occurred in the latter half of June, being one month
after the sale, the repairs took until the end of July, the purchaser received
the repair bills in August, on September 1st he sent them to the vendor and he
24Chicoine v. Arcbambault [1948] K.B. 409.
2 6Trudeau v. Lafleur (1907) 32 S.C. 223 (Court of Review).
21Girard v. Dessert (1915) 48 S.C. 508 (Braneau, J.).
“7Holt v. J. D. Vallires Ltle [1948 S.C. 397 (Duranleau, J.).
28Guest v. Douglas M.L.R. (1888) 4 Q.B. 242.
“Dame de Felice v. O’Brien (1918) 27 K.B. 192.
‘Cantin v. Otis (1927) 65 S.C. 173 (Belleau, J.).
“‘Gauthier v. Electrical Equipment Co. (1922) 28 R.L.n.s. 151 (Court of Review).
gForest v. Roy [1948] S.C. 380 (Fotier, J.).
Sottthern Can Company of Baltimore Cit v. Whittal (1916) 50 S.C. 371 (Court of Review).
34Robert Tremblay Inc. v. Lacasse [1956] R.L. 229 (Boulanger, J.).
’15allilre v. Patent Development and Manufacturing Co. (1902) 21 S.C. 526 (Choquette, J.).
mHoule v. Forget [1953] R.L. 229 (A.I. Smith, J.).
3TCedillot v. Lalonde [19513 S.C. 379 (A.I. Smith, J.).
“8Begin v. Dubois (1875) 1 Q.L.R. 381 (Tessier, J.).
“Tiernan v. Trudeau (1887) 15 R.L. 444 (Mathieu, J.).
4Paoyeur v. Toussaint (1939) 67 K.B. 463.
tLatour V. Page et Fis Limitle [19563 S.C. 153 (Ouimet, J.); Industrial Acceptance Corp. v. Landry
(1936) 42 R.L.n.s. 367 (Surveyer, J.).
“Bourdon v. Lamontagne [19451 S.C. 269, at 271 (Boulanger, J.); Gauthier v. Comiti de Rialisation
de la Citi-Jardin [1955 Q.B. 100, at il.
41[1945] S.C. 269 (Boulanger, J.).
McGILL LAW JOURNAL
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sued on September 30. The delay of three and a half months from the date of
the defect appearing was held to constitute reasonable diligence, though the
Court did take into consideration the fact that most of the events had occurred
during the long vacation. In Tellier v. Proulx” the sale took place in July and
the heating system was not used until the fall, at which time it was discovered
to be defective. In November, the purchaser notified the vendor of the defects
and at the end of December the vendor sent his plumbing contractor who
made some unsuccessful repairs. The owner had proper repairs made in January
and February and he received the final report of the engineers in March. The
action was taken at the end of May. This was ten months after the sale and
about seven months after the defect had appeared.
It was held, however,
that the purchaser had acted with reasonable diligence, though it must be
noted that the Court took into account that at least part of the delay had
been accounted for by efforts on the part of the vendor to remedy the defects.”
In Gosselin v. Beaulieu,” we see an example of the lack of reasonable diligence
on the part of a building purchaser. The sale took place on October 19, 1954,
the purchaser discovered an excess of dampness in December of the same year,
he had the building inspected by an architect in May, 1955, and it was only
when he was sued by the seller on the balance of price that he filed a cross
demand in May, 1956, asking for a reduction in price. The one and a half
years delay from the date of the discovery of the defects was held to be too
long. In David v. Manningham,47 the sale of the house was on March 22, the
defects (cracks in a wall) appeared in mid-May, the buyer waited three months
to have the building inspected and another two months before suing (the
action was served on October 6). The purchaser was held to have sued too
late. The reader is also referred to Dame Gagnon v. Dame Houle4
1 in which an
action taken seven months after the discovery of the defect was held to be
tardy. There are many other reported judgments in which the purchaser of a
building has been held to have waited too long before suing. 9 Thus, while a
purchaser of a house will have greater leeway as to the delay than the buyer
of a moveable, the courts will not hesitate, in the exercise of their discretion
under article 1530 C.C., to hold that too long a time has been allowed to elapse.
41[1954] S.C. 180 (Batshaw, J.).
sOn the effect of undertakings or efforts by the vendor to remedy the defects, see the discussion
under the heading “Settlement negotiations and undertakings or efforts by the vendor to remedy
the defects” (infra).
461[1958] S.C. 23 (Marquis, J.).
47[1958] S.C. 400 (Jean, J.).
48(1923) 34 K.B. 11.
49Renaud V. Huguet (1930) 49 K.B. 271; Jacobhon v. Pelletier (1912) 42 S.C. 35 (Court of Review);
Phelan v. The Montreal Investment and Freehold Co. (1909) 15 R.L.n.s. 1 (Bruneau, J.); Dame Houston v.
Wilders (1921) 30 K.B. 321; Joncas v. Blouin [1952] R.L. 554 (Marquis, J.); Gauthier v. Comitt de Rali-
sation de la Citi-Jardin [1955] Q.B. 100; Jacob v. Lamothe [1956] S.C. 410 (Lajoic, J.); Bilanger v. Langlois
[1955] Q.B. 614. See also Walter S. Johnson, “The Redhibitory Action and Buildings” (1952)
12 R. du B. 322.
No. 1]
REDHIBITORY ACTION OF ARTICLE 1530 C.C.
From the foregoing we see that the length of the delay specified by article
1530 C.C. will depend on the nature of the defect which itself will often depend
on the nature of the object.
(ii) The date from which the delay begins to run.
This is an interesting question which has been the object of much discus-
sion.5″ There are various possibilities: the date of the sale, the date of delivery,
the date on which the buyer has his first opportunity to inspect the thing, the
date on which he first uses it, and the date on which the defects appear. If
there is a usage relating to this question, it will govern. 5’ Various suggestions
have been made as to the starting date in the absence of a usage, but the majority
opinion seems to be to the effect that it is the date of the discovery of the
defect by the purchaser that governs.5 2 The same view seems to have been
taken by our jurisprudence. Thus we find the following statement by Duff,
. . the action must, by the terms of article 1530 C.C., be brought
C. J.:13″.
with reasonable diligence and, in practice, the point of departure is recognized
by the tribunals as the date of the discovery of the defect by the purchaser …
This particular statement by Duff, C. J., seems admittedly to be an obiter
dictum in the case he was deciding, but the principle has been applied in a
number of judgments.1 4 Moreover, the progressive manifestation of defects
will be a factor in extending the delay –
this was so held by the Supreme
Court in Lenire v. Pechat,” where because of various circumstances a redhibitory
5″For example, see: Gerald Aubin, “De la ‘Diligence Raisonnable’ dans l’action r~dhibitoirc”
(1955) 2 Les Cahiers de Droit 16, at 18; Guillouard, Traite de la Vente et de l’1fchange, 2nd edition
(1893), I, pages 485ff; Laurent, Principts du Droit Civil Franfais, 4th edition (1887) XXIV, pages
296-297; Aubry et Rau, Droit Civil Franfais, 6th edition (1946), V, page 87; Dc Lorimier, Biblio-
thque du Code Civil de la Province de Quebec, XII, pages 231-233; Planiol et Ripert, Traiti Pratiue du
Droit Civil Franfair, 2nd edition (1956), X, page 156; Ripert et Boulanger (1958) op. cit., III, page
509; Dame Gagnon v. Dame Houle (1923) 34 K.B. 11 at 20; Jacobson v. Pelletier (1912) 42 S.C. 35, at
40-43 (Court of Review).
5’Guillouard, op. cit., 2nd edition (1890), 1, page 485; Laurent, op. cit., 4th edition (1887), XXIV,
page 296; Mignault, op. cit., VII, page 114; Domat, Oeuvres, I, page 414; Ripert et Boulanger (1958),
op. cit., III, page 509; Faribault, op. cit., XI, page 301; Hanakova v. Girard [1957] S.C. 344, at 346-347
(Brossard, J.).
52Faribault, op. cit., XI, page 302; Mignault, op. cit., VII, page 119; Domat, Oeuvres, I, page 414;
Laurent, 4th edition (1887), XXIV, pages 296-297. Contra: Ripert et Boulanger (1958), op. cit.,
III, page 509 (the point of departure is the date of delivery or of the actual putting in possession);
GuilIouard, op. cit., 2nd edition (1890), I, page 488 (the point of departure is in the discretion of
the court); a somewhat similar view is taken by Planiol et Ripert, op. cit., 2nd edition (1956), X,
pages 155-156.
513Touchette v. Pizzagalli [1938] S.C.R. 433, at 442-443.
54Hanakova v. Girard [1957] S.C. 344 (Brossard, J.); Mercier v. Saucier [1960) S.C. 305 (Lacroix, J.);
Plotnick v. Barros [1961] S.C. 87 (Perrier, J.); Piersanti v. Dame Laporte [1956] Q.B. 210, at 214-215;
Gautbir v. Comiti de Rialisation de la Cite-Jardin [1955) Q.B. 100 at 106; Doake v. Paige (1898) 4 R. de
J. 457 (White, J.); there is also Manseau v. Collette [1955) S.C. 2 (Perrier, J.).
-[1957] S.C.R. 823.
McGILL LAW JOURNAL
[Vol. 9
action, based on latent defects in a tractor, taken nine months after the sale
and delivery, was held not to have been instituted too late.
To consider the delay as only beginning to run from the date that the pur-
chaser discovers the defect is no doubt in keeping with the principle that the
delay must be long enough, in the interests of the purchaser, for the defects to
have manifested themselves. However, are we not in danger of offending
the other principles that the delay must be short enough for the vendor to be
still in a position to defend himself and in particular in relation to the question
whether the defect existed at the time of the sale, and that it is the law’s policy,
in the interests of society, that it is undesirable that claims be allowed to
remain outstanding for too long a time? For example, Laurent” cites with
approval the upholding of a redhibitory claim relating to a house where the
defect had only become known twenty-six years after the sale. 7 On the basis
of at least some of the stat-ments in the Quebec judgments cited above, a similar
decision might be rendered here.
While the facts in the Quebec judgments in question in no way suggest that
too long a time was allowed to pass, it would seem appropriate to sound a
note of caution concerning the validity or desirability of having the principle
that the delay begins to run only from the date when the buyer discovers the
defect apply to every case. The solution proposed by Guillouard s would seem
much more reasonable. He suggests that as the length of the delay is in the
court’s discretion, the departure date is also in its discretion, as the fixing of a
delay must include the determination of the date when it begins. In other
words, it would be up to the courts, where faced with the problem, to protect
the purchaser where the nature of the object is such that the defect will be slow
to appear while at the same time safeguarding the vendor from having to defend
himself too long a time after the sale. That this view of the matter is not
repugnant to our law appears from the judgment in Dame Lebel v. Forest,9
where it was held that the departure date will depend on the nature of the
object. Thus it was stated that in the case of moveables, especially of perish-
ables or of an animal, the delay should perhaps run from the date of the sale.
On the other hand, in an immoveable, particularly a new house, the defects
may be of a nature as to manifest themselves only gradually, so that the delay
should start when knowledge is acquired. In other words, it is in the discretion
of the court to determine the reasonableness of the delay in the light of its
length and of its departure point, taking into consideration the nature of the
defect (and of the object), along with the circumstances.
664th edition, (1887), XXIV, pages 296-297.
“Article 1648 C.N., being the equivalent to article 1530 C.C., reads as follows:
L’action resultant des vices r&lhibitoires doit etre intent&c par l’acqu~rcur, dans un bref
d6lai, suivant la nature des vices rdhibitoires, et l’usage du lieu oil ]a vente a &6 faice.
582nd edition, (1890), I, page 488.
59(1934) 72 S.C. 290 (Louis Cousineau, J.).
NO]1
REDHIBITORY ACTION OF ARTICLE 1530 C.C.
One protection that the vendor has is that the purchaser must, on pain of
losing his recourse, examine the thing immediately.60 This means that where
the defect is discoverable by examination when the thing is received, the delay
will run from that date, and not from the date that the negligent buyer happens
to come across it. An exception to this is where, to the vendor’s knowledge,
the thing is to be used by the buyer only at a definite subsequent time, in which
event the delay will only start to run when the buyer has discovered the defect
through the use of the thing.”
(iii) Fraudulent representations as to the condition of the thing sold.
A vendor may be entitled to exaggerate the qualities of the thing he is
selling, but if these representations amount to fraud, the purchaser may sue
for the annulment of the contract. The Supreme Court has held that an action
to set aside the contract on this ground is not subject to as short a delay as
that called for by article 1530 C.C.62 Much seems to depend on the circum-
stances, however. Thus, in the case in question, there were additional factors
that also would have extended the 1530 delay: the defects appeared only
gradually ” and there was a formal warranty.
(iv) Settlement negotiations and undertakings or efforts by the vendor to remedy the
defects.
Where the vendor tells the purchaser to be patient as the matter will prob-
ably be settled on an amicable basis, the delay of article 1530 C.C. is extended. 4
The same rule applies where the vendor undertakes or attempts to remedy the
defects.65
0OMignault, op. cit., VII, page 119; Faribault, op. cit., XI, page 302; Ross v. Baker (1891) 20 R.L.
203 (Court of Review); Guest v. Douglas M.L.R. (1886) 4 Q.B. 242; Fraser v. Magor (1892) 1 S.C.
543 (Pagnuelo, J.); Vipond v. Findlay (1891) 14 L.N. 298 (Tait, J.); Cushing v. Strongman (1892)
1 S.C. 46 (Court of Review); Marchand v. Dame Gibeau (1892) 1 S.C. 266 (Court of Review).
6tMignault, op. cit., VII, pages 119-120; Lefebar v. The A.P. Penchen Co. (Limited), (1895) 7 S.C.
420 (De Lorimier, J.); Roy v. Lafontaine [1959] Q.B. 223, at 224 and 225.
“Lortie v. Bouchard [1952] 1 S.C.R. 508; this judgment was applied in Bouchard v. Vaillancourt
[1961) S.C. 171 (Montpctir, J.); see also Bernierv. Grenier Motor Co. Ltd. (1926) 41 K.B. 488 (confirmed
by [1928] S.C.R. 86); Gallant v. Bllanger (1909) 36 S.C. 5 (Carroll, J.); Manseau v. Collette [1955]
S.C. 2 (Perrier, J.).
“‘In this connection, see Lemire v. Pelchat [1957] S.C.R. 823.
6 Mignault, op. cit., VII, page 120; Faribault, op. cit., XI, page 302; Langelier, Cours de Droit Civil
de la Province de Quhec, V. pages 80-81; G&ald Aubin, “De la ‘Diligence Raisonnable’ dans laction
rhdhibitoire” (1955) 2 Les Cahiers de Droit 16, at 18-19; Tellier v. Moody (1902) 8 R. deJ. 168 (Cho-
quette, J., confirmed by the Court of Review); Manseau v. Collette [1955] S.C. 2 (Perrier, J.).
I-ignault, op. cit., VII, page 120, Faribault, op. cit., XI, page 302; Gald Aubin, “De La ‘Dili-
gence Raisonnable’ dans ‘action ridhibitoire” (1955) 2 Les Cahiers de Droit 16, at 18-19; Ry v.
La!ontaine [1959] Q.B. 223; Rothpan v. Drouin [1959] Q.B. 626; Tellier v. Prouix [1954] S.C. 180, at
184 (Batshaw, J.); Gauthier and Marcoux Limitle v. Bldard [1952] S.C. 121 (Bienvenue, J.)-this case
actually seems to have been applying the terms of a conventional warranty; Touchette v. Pitgagalli
[1938] S.C.R. 433, at 451-452; Bernierv. GrenierMaotorCo. Ltd. (1926) 41 K.B. 488, at 496; RobertTremblay
Isc. v. Ernest Lacasse [1956] R.L. 229 (Boulanger, J.); The Omega Machinery Limited v. Louoiseie (1925)
38 K.B. 38, at 39-41.
McGILL LAW JOURNAL
[Vol. 9
The reasons for the foregoing rules are not far to seek: the vendor is waiving
the delay which was constituted in his favour; he is also lulling the purchaser
into a false sense of security.
(v) The existence of an express guarantee.
There is a large body of jurisprudence to the effect that the delay of article
1530 C.C. does not apply where there is an express guarantee.6 ” This is logical
and understandable where the conventional warranty covers a specific period
subsequent to the sale, e.g. one year –
the vendor will then be liable for
defects appearing at any time during that period.6 7 But in a good number of
the judgments holding that the delay of article 1530 C.C. does not apply
where there is an express guarantee, the latter is not for any specific period –
the goods may be simply guaranteed to be free of defects. What are the effects
of an express guarantee that is not for a definite period? One effect may be to
extend the warranty so as to cover apparent defects as well as latent defects,6 8
the vendor not otherwise being liable for the former (article 1523 C.C.). Is
another effect of such a guarantee to extend the delay of article 1530 C.C.?
Many of the judgments hold article 1530 C.C. to apply only in the case of legal
warranty and that it is excluded by an express guarantee. It is submitted
that this is an incorrect proposition. Article 1507 C.C. gives the parties the
right, amongst other things, to add to the obligations of legal warranty (the
parties are also authorized to exclude it altogether). Where the vendor has
given an express guarantee but not for a specified period, he has not excluded the
legal warranty; he has added to it, and what he has added to it is a warranty
against apparent defects for which he would not otherwise be liable (article
1523 C.C.). He has not made himself liable for defects that may arise after
66Remillard v. Beaulieu [1960] S.C. 657 (Challics, J.); Lortie v. Bouchard [1952] 1 S.C.R. 508; Tonchetto
v. Piyzagalli [1938] S.C.R. 433, at 451-452; Bernier v. Grenier Motor Co. Ltd. (1926) 41 K.B. 488 (and
confirmed by the Supreme Court, [1928] S.C.R. 86); Gagni v. Macrae Co. Ltd. [1949] K.B. 239; Simoneau
v. St. Jacques [1958] S.C. 325 (Marquis, J.); Laurion v. Godin (1929) 67 S.C. 44, at 47 (Boyer, J.);
Gallant v. Belanger (1909) 36 S.C. 5 (Carroll, J.); Bessette v. Raymond (1920) 58 S.C. 59 (Court of
Review); Menier v. Gauthier (1921) 31 K.B. 564; Silver v. Drennan (1922) 60 S.C. 120 (De Lorimier,
J.); Lefebvre v. Montpetit (1922) 60 S.C. 202 (Mercier, J.); Dodier v. Paradis (1920) 57 S.C. 198 (Court
of Review); Bilodeau v. Lahaise [1952] R.L. 321 (Edge, J.); Acme Restaurant Equipment Compa;i. v.
Coaiol [1962] Q.B. 1; Carter v. Limoges (1917) 23 R.L.n.s. 52 (Court of Review); Fitzpatrick v. Tremblay
(1915) 21 R.L.n.s. 148 (Court of Review); The Lachute Shuttle Company v. Frothingham and Workman,
Limited (1913) 22 K.B. 1; The Canada Producer and Gas Engine Company Limited v. The Hatley Dairy
Light and Power Company, Limited (1913) 22 K.B. 12; The Omega Machinery Limited v. Louiseize (1925)
38 K.B. 38; Lapierre v. Drouin (1912) 41 S.C. 133 (Lemicux, A.C.J.); Benard v. Roluebrune (1926)
64 S.C. 486 (Survcyer, J.). See also Faribault, op. cit., XI, page 305; Langelier, Cours de Droit Civil,
V, page 81; Aubry et Rau, 6th edition (1946), V, page 88; G&ald Aubin, “De la ‘Diligence Raison-
nable’ dans l’action rdhibitoire” (1955) 2 Les Cahiers de Droit 16, at 17-18.
67See, for example, Acme Restaurant Equipment Company v. Coziol [1962] Q.B. 1; Sitnoneau v. St.
Jacques [1958) S.C. 325 (Marquis, J.).
6″Dallaire v. Vilkteuve [1956] Q.B. 6, at 11; Arpin v. Francoeur (1930) 48 K.B. 231, at 233-234;
Carter v. Limoges (1917) 23 R.L.n.s. 52 (Court of Review); Fitzpatrick v. Tremhlay (1915) 21 R.L.n.s.
148 (Court of Review).
No. 1]
REDHIBITORY ACTION OF ARTICLE 1530 C.C.
the sale – he is still only liable for those existing at the time of the sale.
Therefore the balance of the legal warranty provisions continue to apply, in-
cluding the “reasonable diligence” delay of article 1530 C.C.1 There is only
one way in which this delay may be extended as a result of an express guarantee
that does not cover defects arising after the sale, and that is by relieving the
buyer of the obligation to examine the things immediately on their receipt, so
that the delay will only start to run from the date that the defects manifest
themselves through use. 70 Once the delay begins to run, however, it should
be the “reasonable diligence” delay of article 1530 C.C.
Where there is an express guarantee for a specified period after the sale,
the defects giving rise to a claim must have manifested themselves during that
period. However, it is not necessary for the action also to be commenced during
the same period,” unless the terms of the guarantee require it. Presumably it
would have to be taken with reasonable diligence after the appearance of the
defect.
S. What the buyer must do.
He must examine the thing promptly on receipt, 7″ he must notify the
vendor immediately on the discovery of the defects, and if the vendor fails
to agree to a cancellation of the sale or a reduction in the price, the purchaser
must tender back the object 73 and sue with reasonable diligence. It is not
enough merely to protest or to wait until the seller sues for the price74 (unless,
of course, the seller sues so quickly that the buyer is prevented from taking
action first). 75 Moreover, the buyer must be careful that his behaviour does
6The following cases give some support to my submission: Houle v. Paquette [1961] S.C. 197
(Brossard, J.)-this case actually involved a guarantee for a specified period after the sale; Eglinton
v. Ashmead (1896) 9 S.C. .427 (Andrews, J.); Dubl v. Cousineau (1940) 46 R. de J. 470 (Forest, J.);
and perhaps also Oddl v. Lavigueur (1907) 32 S.C. 99, at 110-111, where McCorkill, J., after holding
that article 1530 C.C. is excluded by an express warranty, still seemed to apply the criterion of
“reasonable diligence”.
7tSee the discussion under the heading “The date from which the delay begins to run” (supra).
71Aeme Rerturant Equipment Company v. Coqiol [1962] Q.B. 1. In Gauthier and Marcoux Limitle v.
Bdard [1952] S.C. 121 (Bienvenue, J.), it was held that each time the automobile, which was covered
by a three months express guarantee, was repaired by the vendor, the delay began to run afresh.
72See the discussion under the heading “The date from which the delay begins to run” (supra).
75Minard v. Desloges [1949] R.L. 123 (Salvas, J.).
7 4Grald Aubin, “De la ‘Diligence Raisonnable’ dans l’action r~dhibitoire” (1955) 2 Les Cahiers
de Droit 16, at 18; Planiol et Ripert, op. cit., 2nd edition (1956), X, page 155; Guillouard, op. cit.,
2nd edition (1890), I, page 484-485; Holt v. J. D. Vallires Lte [1948) S.C. 397 (Duranleau, J.);
Paycur a. Tourraint (939)67 K.B. 463; Robert Tremblay Inc. v. Lacasse [1956] R.L. 229 (Boulanger, J.);
Guilmtte v. Langevin (1907) 13 R.L.n.s. 154 (Court of Review); Girard v. Dessert (1915) 48 S.C. 508
(Bruneau, J.); Joncas v. Blouin [1952] R.L. 554, at 565 (Marquis, J.); Dubi v. Cousineau (1940) 46 R-
de J. 470 (Forest, J.); David v. Manningham [1958] S.C. 400, at 402 (Jean, J.); Tremblay v. Fleury [1953]
S.C. 423 (Dion, J.).
76In The Omega Mlachinery Limited v. Louiseize (1925) 38 K.B. 38, the defendant was held to have been
justified in waiting until he was sued for the price as article 1530 C.C. had been excluded, due to
there being an express guarantee.
[Vol. 9
not amount to an adoption of the contract and consequently a renunciation
of his right to sue in cancellation. 76
MCGILL LAW JOURNAL
6. Must the failure to act with reasonable diligence be pleaded?
The general rule relating to prescription is that the same must be pleaded.
The question is whether the rule applies to the “reasonable diligence” require-
ment of article 1530 C.C. In other words, if the vendor who is a defendant to
a redhibitory action wishes to raise this defence, must he allege the tardiness
of the purchaser’s action in his plea?
The jurisprudence is divided on the issue. The following judgments held
that it was necessary for the defendant to allege the lack of reasonable diligence:
The Omega Machinery Limited v. Louiseie,7 7 Bernier v. Grenier Motor Co. Ltd.,78
Boutin v. Par, 79 Lavallee v. Brl2, 80 Dame Nobert v. Belanger,,” and Davis v. Taille-
fir.”82 The contrary has been held in Latouche v. Lehouilliers3 and Jacob v. Lamothe. 14
Mignault 85 and Faribault8″ both take the view that an allegation in the plea
is necessary, and this seems to be the better opinion as it is only if the necessary
facts are alleged and proved that the judge will be in a position to exercise his
discretion. 87
7. The types of action covered by article 1530 C.C.
Article 1530 C.C. refers to the necessity of the redhibitory action to be
taken with “reasonable diligence.” This is the action that is taken by the
purchaser who wishes to have the sale cancelled. But does article 1530 C.C.
apply to the action quanti minoris (being the one in reduction of the price) or
to its relation, recognized by the jurisprudence, the action to recover the cost
76Loynachan v. Armour (1904) 25 S.C. 158 (Davidson, J.); Southern Can Company of Baltirbore City v.
Whittal (1916) 50 S.C. 371 (Court of Review); Carre v. NoFl [1959) Q.B. 544; Latour v. Pagl tt Fih
Limitle [1956) S.C. 153 (Ouimer, J.); Dame Coorsh v. Coorib [1956] Q.B. 338; Faucher v. Pilon [1953]
Q.B. 583; Houle v. Forget [1953] R.L. 229 (A.I. Smith, J.); Cedillot v. Lalonde [1951) S.C. 379 (A.I.
Smith, J.); Minard v. Desloges [1949] R.L. 123 (Salvas, J.).
77(1925) 38 K.B. 38.
78(1926) 41 K.B. 488.
72[1959] Q.B. 459.
30(1920) 57 S.C. 426 (Court of Review).
31[1953] S.C. 295 (Ferron, J.).
2(1873) 5 R.L. 404 (BNlanger, J.).
83[1959] Q.B. 26.
8[1956] S.C. 410 (Lajoie, J.).
$$Op. cit., VII, page 120.
8Op. cit., XI, page 304.
3USee also the case comment by Brahm Campbell (1959-60) 6 McGill L.J. 138; see too Vallre v.
Patent Development and Maonfacturing Co. (1902) 21 S.C. 526 (Choquete, J.) as to what disposition
may be made in relation to the costs where the issue of reasonable diligence was raised only at the
hearing.
REDHIBITORY ACTION OF ARTICLE 1530 C.C.
No. 1]
of remedying the defect;88 and again does it apply to the claim for damages
under article 1527 C.C.?
Langelier8 9 took the view that as the article speaks of the redhibitory
action alone, it applies only to that claim. Mignault,90 along with many
other authorities, 9′ takes the view that the action quanti minoris is also covered;
some also include the claim for damages.92
8. Conclusion.
Article 1530 C.C. is a striking example of the operation of the civil law
system. A general principle is laid down which the courts then apply to indi-
vidual cases. As a result of an evolution that has taken place through the
application of the article to many different circumstances over a long period
of time, certain criteria have come to be laid down that assist the judges in
the exercise of their discretion. Thus the principle is made adjustable within
certain limits that have been reasonably well defined, while at the same time
the flexibility of the rule has been retained by reason of the broadness of the
terms of the article. The fact that there is so little controversy in the juris-
prudence is a tribute to the ability of the courts to apply the article in a logical
and satisfactory manner.
88Sec, for example, Hanakova v. Girard [1957] S.C. 344, at 349 (Brossard, J.); Bourdon v. Lamontagne
[1945] S.C. 269, at 271 and 272 (Boulanger, J.); Tellier v. Proux [1954] S.C. 180, at 184 (Batshaw, J.);
Botercier v. Donohue [1956] S.C. 25 (Batshaw, J.).
aOp. cit., V, page 80.
90Op. cit., VII, page 114, footnote (a).
9 Faribault, op. cit., XI, page 300; Girard v. Dessert (1915) 48 S.C. 508 (Bruneau, J.); Joncas v.
Blouin [1952] R.L. 554 (Marquis, J.); Gauthier v. Comit dec Rialisation de la Citi-Jardin [1955] Q.B.
100, at 105-106; Piersanti v. Dame Laporte [1956] Q.B. 210, at 214; Hanakova v. Girard [1957] S.C. 344
(Brossard, J.); Gosselin v. Beaulieu [1958] S.C. 23 (Marquis, J.); Dame Gagnon v. Dame Houle (1923)
34 K.B. 11; Crevier v. La Sociti d’Agriculture de Berthier (1881) 4 L.N. 373, at 374 (Torrance, J.);
Lemoine v. Beique (1887) 15 R.L. 445 (footnote); Holt v. J. D. Vallires Le [1948] S.C. 397, at 400
(Duranleau, J.); Doake v. Paige (1898) 4 R. de J. 457, at 466-467 (White, J.); Ferro Metal Limited v.
St. Germain [1956] Q.B. 395, at 402.
9
2G. A. Gruninger et FiLe Lte v. Construction Equipment Company Ltd. [1962] S.C. 444 (Ferland, J.);
Girard v. Dessert (1915) 48 S.C. 508 (Bruneau, J.); Trudeau v. Lafleur (1907) 32 S.C. 223 (Court of
Review); Forest v. Roy [1948] S.C. 380 (Fortier, J.); Dame de Felice V. O’Brien (1918) 27 K.B. 192.
Contra (apparently): De la Durantaye v. Citi de Qubec (1929) 67 S.C. 128 (Belleau, J.).
