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

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). 1186 LOUISIANA LAW REVIEW [Vol. 76 1994 of the theory of abuse of right in two distinct articles. 4 Finally, the third general area relates to judicial matters in general—cases where the system of justice is used to seek revenge, to intimidate litigants, or, in other words, situations where the civil or criminal justice systems are misused. 5 In this particular case, however, the evolution is mostly due to legislative intervention. 6 In 1974, Judge Albert Mayrand of the Quebec Court of Appeal participated in a conference at the Louisiana Institute of Civil Law Studies at the Paul M. Hebert Law Center at Louisiana State University. The Louisiana Law Review later published the Article that Judge Mayrand submitted for this conference. 7 In that Article, he drew a portrait of the existing French and Quebec law on abuse of right. 8 The purpose of this short Essay in honor of Professor Alain Levasseur is to show how not only the law but also the very concept of abuse of right in property and judicial areas have drastically changed over the years. I. ABUSE OF RIGHT AND OWNERSHIP LAW Abuse of right in the exercise of the right of ownership as a tool to control good faith and equity in personal relationships originated in France. 9 By the end of the nineteenth century and the beginning of the twentieth century, the notion of abuse of right was well known in Quebec. 10 Yet until recently, doubt subsisted as to the very foundation of abuse of right. 11 4. Civil Code of Québec, S.Q. 1991, c. 64, art. 7 (Can.) (“No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner, and therefore contrary to the requirements of good faith.”); id. at art. 976 (“Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe to each other, according to the nature or location of their land or local custom.”). 5. 1 JEAN-LOUIS BAUDOUIN, PATRICE DESLAURIERS & BENOÎT MOORE, LA RESPONSABILITÉ CIVILE no. 1-236, at 223 (8th ed. 2014). 6. J.L. BAUDOUIN, L’abus du droit d’ester en...