In one of our previous articles, we discussed the general principles applicable to civil liability. We learned that, as a general rule, a person can be held liable on the basis of three elements: fault, damage and a causal link. This Cartesian logic is at the core of our civil law and is intended to apply both in contractual and extra-contractual matters. In this article, we will examine certain cases of exceptions where one person may be liable without fault while another may be excused in spite of their fault.
Our law provides for certain special provisions under which a person may be required to make reparation for harm done to another person, even if they were diligent. In such cases, the injured person will not have to show that a fault has been committed. In matters regarding a contract, certain types of contracts may oblige a person to compensate another person in spite of themselves. Generally speaking, some contractual obligations are “obligations of result”, as opposed to “obligations of means”. In the case of an obligation of result, the other party need only prove that the result was not achieved in order to invoke the liability of the contracting party, who will have to prove force majeure in order to be exonerated.
If the obligation is one of means, the question then arises as to whether the person has taken the reasonable measures under the circumstances to fulfil their obligation. It is only in the event of a breach of the obligation that the person will be held liable. For example, a carrier must take passengers safely to their destination. A victim needs only prove that this result was not achieved in order to be compensated.
The victim does not have to prove that a normally prudent and diligent carrier would have avoided the accident. On the other hand, an attorney generally has only an obligation of means; the mere fact that the lawyer “loses their case” does not in itself make them liable. Rather, it must be shown that a diligent lawyer would have acted differently and that this would have changed the outcome of the trial.
Some contracts also create reciprocal and correlative duties, which will ensure that a person will be liable, even though that person is blameless. Consider two contracts that are common in practice: sale and lease. In a sales contract, the seller transfers ownership of a good and the buyer pays the agreed price.
A given property at a given price. If the property is affected by a hidden defect that even the seller was not aware of, this breaks the balance of the contract and the buyer will be entitled to a price reduction. In the case of a lease, the lessor must provide enjoyment of the property and the lessee must pay the price for such enjoyment.
Once again, a given enjoyment, a given price. If the tenant’s enjoyment is disturbed, even though the lessor cannot do anything about it, they must grant a reduction in rent. For example, a tenant who is bothered by endless street repairs will be entitled to a rent reduction. We can therefore see that both the vendor and the landlord can be responsible without any fault on their part.
Presumption of Liability
In non-contractual matters, the Civil Code of Québec creates certain presumptions of liability, which have the effect of exempting “the victim” from having to show that a fault has been committed. First, one can be liable through the fault of another. Thus, parents are presumed responsible for acts and gestures committed by their children that cause harm to others.
To exonerate themselves, they will have to prove that they did not commit any fault “in the custody, supervision or upbringing” of their children. It is also a well-established principle in our law that those who act through others are acting on their own. It is for this reason that employers will be liable for the misconduct of their employees, without any means of exoneration.
Similarly, a contractor who uses subcontractors to perform work will be liable for any fault committed by them. Secondly, one may be liable by virtue of being the custodian or owner of property or an animal. Here again, our law provides for presumptions of liability in this regard.
Limitations and Disclaimers of Liability
On the other hand, our law sometimes allows certain people who have made a mistake to simply wash their hands of it. The law provides exemptions for certain people. It is often the case that State employees, in the performance of their duties, enjoy so-called relative immunity, that is, they cannot incur liability—or, by extension, that of the State—unless it can be shown that they have committed intentional or gross misconduct or have acted in bad faith. Judges, for their part, enjoy absolute immunity.
The law also excuses certain individuals in specific contexts. For example, the “Good Samaritan”, a person who assists another person for a selfless purpose, will be exempt from liability except in cases of wilful misconduct or gross negligence. People are also almost always excused in cases of force majeure: in the face of the impossible, no one is held responsible. Force majeure is an unforeseeable and irresistible event.
It is something exceptional. In Quebec, a normal snowstorm, even if it is described as a major or significant event, cannot be called a force majeure, because it is something that must be anticipated. The 1998 ice storm crisis and the Saguenay flood of 1996 are examples of historical events that can be qualified as force majeure. Sometimes, in contractual matters, a person is bound even beyond force majeure, when their obligation is one of guarantee. For example, the lessor must guarantee that the property can be used for the purpose for which it is leased and force majeure will not be sufficient to exonerate them of their obligation.
On the other hand, it is common for a party to insert a limitation or disclaimer clause in a contract. Such clauses are in principle valid, but they may sometimes be discarded in certain circumstances. If the contract is an “adhesion” contract, that is, one party imposes it and it is not negotiable, the disclaimer clause must have been known to the other party when the contract was concluded.
On the other hand, it could be discarded if it is found to be abusive. If the effect of the disclaimer clause is to allow a person to be relieved of an obligation essential to the contract, the clause will also be ineffective. For example, the landlord must ensure the enjoyment of the property. If no enjoyment is provided (e.g. the property is destroyed), then the landlord will not be able to hide behind a disclaimer; otherwise, it would be considered fraud, one could demand rent and give nothing in return! Furthermore, such a clause will also be of no effect in the case of intentional or gross negligence or in the case of bodily injury.
In Case of Doubt, It is Best to Consult a Lawyer
The aforementioned illustrate a number of aspects of our law that make it difficult to navigate. Therefore, do not assume that you are right or wrong in any given situation. Before your situation escalates, consult your legal advisor at the earliest opportunity to understand your rights and obligations.