Abuse of Right in Quebec: Some 40 Years Later

Author:Jean-Louis Baudouin
Position:Counsel Fasken, Matineau, DuMoulin, Associate Professor, Faculty of Law, University of Montréal.
Pages:1185-1192
 
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Abuse of Right in Quebec: Some 40 Years Later
Jean-Louis Baudouin
INTRODUCTION
Professor Alain Levasseur has taught and written extensively in the
area of the civil law of obligations. The framework and general principles
of both Louisiana and Quebec civil law are drawn from the same Latino-
Germanic tradition and heritage. Yet their evolution in many areas has been
different due to distinctive cultural and social characteristics.
American common law jurisdictions have clearly influenced Louisiana
private law. The situation in Quebec, however, has been slightly different.
Due to the persistence of the use of the French language, the doctrinal and
jurisprudential impact of continental law—particularly that of France—has
always played an important role. Yet Louisiana, due to the existence of a
civil code and a well-implanted Roman tradition, remains with Quebec
and Haiti as one of the only continental-related jurisdictions in North
America.1
In Quebec, the law of contract has seen a remarkable evolution since
the adoption of the new Quebec Civil Code in 1994. Large discretionary
power to control contractual relationships was given to the courts, and
most of the new rules were specifically designed to increase and promote
equity, fair dealing, consumer protection, and good faith in contractual
matters.2 The doctrine of abuse of right also underwent profound and
significant changes.
Abuse of right generally covers three different situations. The first is
the area of contracts. In that respect, in 1994, the Quebec legislature
codified a number of protective measures that had already been, in certain
circumstances, previously only initiated by the courts.3 The second is that
of property rights. By contrast, the evolution in that case has clearly been
the task of the courts based on the specific adoption by the Civil Code of
Copyright 2016, by JEAN-LOUIS BAUDOUIN.
Counsel Fasken, Matineau, DuMoulin, Associate Professor, Faculty of
Law, University of Montréal.
1. Continental-related jurisdictions are jurisdictions that draw their civil law
from the Romanist continental tradition.
2. For an overview, see Jean-Louis Baudouin, Justice et équilibre: la nouvelle
moralité contractuelle du droit civil québécois, in LE CONTRAT AU DÉBUT DU XXIE
SIÈCLE: ÉTUDES OFFERTES À JACQUES GHESTIN 29–44 (L.G.D.J. ed., 2001).
3. JEAN-LOUIS BAUDOUIN, PIERRE-GABRIEL JOBIN & NATHALIE VÉZINA,
LES OBLIGATIONS no. 156, at 255 (7th ed. 2013).

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