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).