93835009-comm-315-notes-for-final (1)

8/13/2019 93835009-Comm-315-Notes-for-Final (1)

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COMM 315 BUSINESS LAW AND ETHICS

NOTES FOR FINAL EXAMINATION

Civil Code of Qe!e"

M#$d#%e

Article 2130This is the definition of a mandate; a contract by which a person, the mandator, empowers anotherperson, the mandatary, to represent him in the performance of a juridical act with a third person,and the mandatary, by his acceptance, binds himself to exercise the power.

!.". #ayin" a real estate a"ent to sell your house $mandate% The principle & person who wishes to sell the house The a"ent & the person responsible for sellin" the house Third party & the house buyer

Article 2132Acceptance of a mandate may be express or tacit. Tacit acceptance may be inferred from the actsand e'en from the silence of the mandatary.

A mandate may be written or 'erbal

Article 2133A mandate is either by "ratuitous title or by onerous title.

A professional mandate is assumed to ha'e a price $price for ser'ice% A mandate entered by two natural persons is presumed to be by "ratuitous

Article 213(

)emuneration, if any, is determined by the contract, usa"e or law or on the basis of the 'alue of theser'ices rendered. )emuneration is a synonym of payment

Article 213*There are two types of mandates; special and "eneral. A special mandate implies a specific ser'ice$e.". sellin" my house%. +nce the mandate completed, it is o'er. A "eneral mandate implies abroadspectrum ser'ice $e.". tain" o'er my business for a period of time%.

Article 213-The powers of a mandatary $or a"ent% extend not only to what is expressed in the mandate, but alsoto anythin" that may be inferred therefrom. n other words, all actions that are necessary to thefulfillment of the mandate are expected.

Article 213/#owers "ranted to persons to perform an act which is an ordinary part of their profession need notto be mentioned expressly.


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Article 213A mandatary $or a"ent% is bound to fulfill the mandate he has accepted, and shall act with prudenceand dili"ence in performin" it. e shall also act honestly and faithfully in the best interests of themandator $or principle%, and a'oid placin" himself in a position that puts his own interest in conflictwith that of his mandator $or principle%.

The a"ent has a fiduciary duty and obli"ation; a duty of trust $all the trust is placed in thea"ent%

Article 2134urin" the mandate, the mandatory is bound to inform the mandator $the principle%, at his re5uestor where circumstances warrant it, of the sta"e reached in the performance of the mandate. Themandatary shall inform the mandator without delay that he has fulfilled his mandate.

n other words, as soon as the mandate is completed, the a"ent must inform the principle.

Article 21(0The mandatary is bound to fulfill the mandate in person unless he is authori6ed by the mandator toappoint another person to perform all or part of it in his place. f the interests of the mandatory sore5uire, howe'er, the mandatary shall appoint a third person to replace him where unforeseencircumstances pre'ent him from fulfillin" the mandate and is unable to inform the mandatorythereof in due time.

!.". f specifically choose a certain real estate a"ent and he7she appoints the mandate toanother person that he7she chooses without informin" me, he7she is at fault.

The chosen a"ent has to complete the mandate himself unless he7she is authori6ed by themandator to do so or unless there is a special circumstance.

!.". as you to return a boo to the library for me, and you brea your le" while runnin"to the library. 8ou as your best friend to return it for you. This is acceptable because it isdue to rare circumstances.

Article 21(1 $9ery mportant%The mandatory is accountable for the acts of the person he has appointed without authori6ation ashis substitute as if he had performed them in person; where he was authori6ed to mae such anappointment, he is accountable only for the care with which he selected his substitute and "a'e himinstructions. n any case, the mandator has a direct action a"ainst the person appointed by themandatary as his substitute.

n all cases, the a"ent is liable. owe'er, if the a"ent was authori6ed to appoint the mandate to another person, if he "a'e

the substitute clear instructions, the a"ent has direct action a"ainst the person he appointed. :e mandataire rpond, comme s


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A mandatary who a"rees to represent, in the same act, persons whose interests conflict or couldconflict shall so inform each of the mandators, unless he is exempted by usa"e or the fact that themandators are already aware of the double mandate; he shall act neutrally towards each of them.>here a mandator was not in a position to now of the double mandate, he may ha'e the act of themandatary declared null if he suffers injury as a result.

Article 21((>here se'eral mandataries are appointed in respect of the same business, the mandate has effectonly if it is accepted by all of them. The mandataries shall act jointly for all acts contemplated inthe mandate, unless otherwise stipulated or implied by the mandate. They are solidarily liable forthe performance of their obli"ations.

:ors5ue plusieurs mandataires sont nomms ensemble pour la m?me affaire, le mandat nhen you return, you find out e'erythin". 8ourfather has to reimburse you for rent that would ha'e otherwise been collected.

Doney f the a"ent uses your money to earn interests, you are entitled to those interests.

Article 21(/The mandatory may not, e'en throu"h an intermediary, become a party to an act which he hasa"reed to perform for his mandator, unless the mandator authori6es it or is aware of his 5uality as acontractin" party. +nly the mandator may a'ail himself of the nullity resultin" from the 'iolation ofthis rule.

!.". 8ou as your father to sell your house. e states that the maret is low, and that youcan only obtain E200,000 $re"ular price was E3*0,000%. e did that in order to sell thehouse to your mother at a better price $he will also benefit from it since they would both be


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Cest effort & the a"ent does e'erythin" he is supposed to !.". f your father does his best effort to sell your house but cannot due to poor maret

demand, you must still pay him for his duties.

Article 21*-

f a mandate is "i'en by se'eral persons, their obli"ations towards the mandatary are solidary. This applies to se'eral people with a sin"le a"ent !.". your parents die and lea'e a house to you and your brothers, and you decide to sell it.

n this circumstance, a mandate $sellin" the house% is "i'en by se'eral persons $you andyour brothers%.

Article 21*/>here a mandatary binds himself, within the limits of his mandate, in the name and on behalf ofthe mandator, he is not personally liable to the third person with whom he contracts. The mandataryis liable to the third person if he acts in his own name, subject to any ri"hts the third person mayha'e a"ainst the mandator.

!.". 8ou wish to sell your house for E2*0,000. The a"ent wants to mae a 5uic sale, andsells your house for E200,000. Cefore si"nin" e'erythin", you find out that the a"ent wassellin" the house at a price for which you did not a"ree. 8ou cancel the sale. The third partyis now extremely upset because he7she was told that he7she was "ettin" the house forE200,000. n such a case, you must compensate the third party yourself.

The mandatary is actin" on your behalf with the third party, which si"nifies that you areresponsible to the third party for any action that the mandatary does wron".

Article 21*>here the mandatary a"rees with a third person to disclose the identity of his mandator within afixed period and fails to do so, he is personally liable. The mandatary is also personally liable if heis bound to conceal the name of the mandator or if he nows that the person whose identity hediscloses is insol'ent, is a minor or is under protecti'e super'ision and he fails to mention this fact.

f your house is sold to a third party, and the third party finds a hu"e crac in thefoundation, if the principleFs identity cannot be re'ealed, the third party can sue the a"ent.The principle would then pay bac the a"ent for all lawsuit expenses and compensation tothe third party.

owe'er, if the a"ent is aware that the principle is insol'ent $has no money%, he mustdisclose it to the third party if he doesnFt want to "et sued.

Article 21-0A mandator is liable to third persons for the acts performed by the mandatary in the performanceand within the limits of his mandate unless, under the a"reement or by 'irtue or usa"e, themandatary alone is liable. The mandator is also liable for any acts which exceed the limits of themandate, if he has ratified them.

Article 21-1The mandator may repudiate the acts of the person appointed by the mandatary as his substitute ifhe suffers any injury thereby, where the appointment was made without his authori6ation or wherehis interest or the circumstances did not warrant the appointment.


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:e"al persons are distinct from their members. Their acts bind none but themsel'es, except aspro'ided by law.

Qe!e" Co)'#$ie( A"%

Li#!ili%* of Di&e"%o&(

Article 11 The directors of the company should be solidarily liable to its employees for all debts not

exceedin" six monthsF wa"es due for ser'ices rendered to the company whilst they are suchdirectors respecti'ely.

2 Jo director shall be liable to an action therefore, unlessa% the company is sued within one year after the debt became due and the writ of

execution is returned unsatisfied, wholly or in part; orb% durin" such period, the windin"up order is made a"ainst the company or it

becomes banrupt within the meanin" of Canruptcy and nsol'ency Act and aclaim for such debt is filed.

n other words The directorFs patrimony may be at ris if the director does somethin" wron". Gor example, if your company has not been payin" taxes, you $the director% will be

personally held liable. They may sei6e your house, car, and more. !'en if another employeewas in char"e of finances, you are held liable.

f you, the director, omit to pay employees for more than - months due to a financial crisis,employees can "o a"ainst you.

f a company declared more di'idends and can no lon"er pay its bills $insol'ent%, financialinstitutions or shareholders "o after directors.

f a company is unfairly tradin" shares, its director will be held liable. All in all, a companyFs director has more responsibilities than most people would thin.

They are liable for nearly e'erythin".

Civil Code of Qe!e"

Co$%"%(

Articles 13/, 13/, 130, 131, 132, 133, 13(Bontracts may be di'ided into specific types of contracts as follows

Bontracts of adhesion $not ne"otiable% Dutual a"reement $the parties ne"otiate and come to an a"reement% @ynalla"matic or bilateral contract $when obli"ations arise on both sides of the e5uation; for

example, when sellin" my car, ha'e the obli"ation to deli'er the car and the buyer has theobli"ation to pay me%

Knilateral contract $when obli"ations only arise on one side; for example, main" your willor main" a donation%

+nerous contract $by payin"% Hratuitous contract $for free%


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Bommutati'e contract $nowin" in ad'ance what your obli"ation will be on a specifieddate; for example, payin" E100 per bushels ordered in @eptember%

Aleatory contract $when the extent of the obli"ations are not nown in ad'ance; forexample, orderin" 100 bushels in @eptember at an uncertain price L the price will bedetermined once the season o'er, dependin" on how much was produced%

nstantaneous contract $once our obli"ations executed, the contract is done and o'er with% @uccessi'e contract $obli"ations are performed at se'eral different times; for example, a carlease%

Bonsumer contract $a merchant sellin" a product or ser'ice to a consumer%

Article 13*A contract is formed by the sole exchan"e of consents between persons ha'in" capacity to contract,unless, in addition, the law re5uires a particular form to be respected as a necessary condition of itsformation, or unless the parties re5uire the contract to tae the form of a solemn a"reement.

A contract does not necessarily ha'e to be written. Two people can enter a 'erbala"reement, and still be 'alid.

Article 13/A contract if formed when and where acceptance is recei'ed by the offeror, re"ardless of themethod of communication used, and e'en thou"h the parties ha'e a"reed to reser'e a"reement as tosecondary terms.

Bomponents of a contract that mae it 'alid $Huaranteed in !xam%1+Co$(e$%

i% !rror $there are two types of errors L excusable 'ersus inexcusable, such as not readin"a contract properly; e.". of an excusable error & marryin" a man that you thou"htto be a woman%

ii% Graud $e.". misrepresentation of a product; a beautiful house that is said to be beach front is in fact in front of a polluted canal%

iii% Gear $must conduct an objecti'e and subjecti'e test%i'% :esion $when one party has more power o'er the other and imposes the contract L if

you are o'er 1 years old, you cannot use lesion as means of "ettin" out of acontract%

,+ C#'#"i%*

i% A"e $!'eryone is allowed to contract for thin"s of minor 'alue for necessities of life.Dinors of 1( years old or more are entitled to contract for employment. 8ouac5uire your full ri"ht to contract at 1 years old.%

ii% #erson under re"ime of protecti'e super'ision $e.". if "randmother has Al6heimer, shehas a restriction statin" that when wishin" to spend a sum of E*,000 or more, she needsa super'isor. #rotecti'e super'ision re5uires a court order to open up. At this point, sheloses her ri"ht to contract%

3+ C#(e$>hen the reason for contract is a"ainst public order L such as prostitution, dru"sellin", "amblin", or death crimes L the contract is deemed as in'alid in court. 8ou cannot "oto court and as for annulment of contract because the contract is deemed as 'oid.%

-+ O!.e"%$the traditional nature of a contract L when sellin" a car, the object is a car; whenleasin" a car, the object is the lease%


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5+ Fo&)$@ome other re5uirement for a contract to be effecti'e. !'ery type of contract has adifferent form. Gor example, when mort"a"es are done, a notary must be present. A holo"raphwill is the simplest form of will and is handwritten. The latest one eliminates all other.

Article 1(00!rror 'itiates consent of the parties or of one of them where it relates to the nature of the contract,

the object of the presentation or anythin" that was essential in determinin" that consent. Aninexcusable error $such as not properly readin" the contract% does not constitute a defect of consent.

Article 1(01!rror on the part of one party induced by fraud committed by the other party or with his nowled"e'itiates consent whene'er, but for that error, the party would not ha'e contracted, or would ha'econtracted on different terms. Graud may result from silence or concealment.

!.". f you are aware of a crac in the foundation of a house you are sellin", remainin"silent about it is a form of fraud. 8ou ha'e the obli"ation to inform buyers of the problem.

Article 1(0/ $Huaranteed in !xam%A person whose consent is 'itiated has the ri"ht to apply for annulment of the contract; in the caseof error occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also claimdama"es or, where he prefers that the contract be maintained, apply for a reduction of hisobli"ation e5ui'alent to the dama"es he would be justified in claimin".

!xample a man claims to be sellin" a beautiful beachfront cotta"e in Glorida. Cecause youli'e in Banada, you trust his claim and purchase the cotta"e for E32*,000. +nce the contractconcluded, you purchase plane ticets to "o 'isit your new house. Kpon arri'al, you reali6ethat the house is o'erlooin" a polluted canal full of alli"ators $fraud L misrepresentation ofproduct%.

n this case, you do not want to annul the contract, as you are passionate about alli"ators.8ou want to eep the house, but want a reduction in your obli"ations $EEE%.

4ue to the fact that the contract was based on fraud, you can as for the contract to bemaintained, while obtainin" a reduction in the obli"ation $i.e. price of house%. The housewas not beachfront, and thus has a lower 'alue.

Bonsent based on error allows for cancellation but not dama"es, at it was your fault.

There are two types of nullity )elati'e nullity $cancellin" a contract or chan"in" it% Absolute nullity $no possibility of chan"in" the contract because the contract was ne'er

formed or 'alid in the first place L e.". in'alid cause, such as prostitution contract%

Article 1(11A contract whose cause is prohibited by law or contrary to public order is null.

Article 1(13A contract whose object is prohibited by law or contrary to public order is null.

Article 1(21Knless the nature of the nullity is clearly indicated by the law, a contract which does not meet thenecessary conditions of its formation is presumed to be relati'ely null.


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Article 1(22A contract that is null is deemed ne'er to ha'e existed. n such a case, each party is bound torestore to the other the prestations he has recei'ed.

Civil Code of Qe!e"

Civil Li#!ili%*

Article 1(*/This article pertains to the basis of ci'il liability.

!5uation of ci'il liability!ndowed with )eason M Gault M Bause M 4ama"es & Bi'il :iability $4uty to )epair% (rules of (direct and (moodily, conduct: immediate) moral, and

laws) material)!xampleA pyrotechnician "i'es a firewor show. At the end of the show, he finds a firewor on the "roundand decides to lea'e it there instead of picin" it up. A child finds it and brin"s it home to hisfather. is father li"hts up the firewor and blows up his sonFs arm. n this case, the father isresponsible for the accident because he was the direct and immediate cause of the dama"e $i.e. armloss%.

Article 1(*This article pertains to contractual liability. !'ery person has a duty to honour his contractual

undertain"s. >here he fails in this duty, he is liable for any bodily, moral, or material injury hecauses to the other contractin" party and is liable to reparation for the injury. !xample The balcony of an apartment buildin" falls while my friend and are sittin" on it.

am a "uest at my friendFs apartment. can sue for 1(*/ and my friend can sue for 1(*. n other words, the buildin" owner failed to pro'ide proper maintenance of the apartment

buildin" and is ultimately responsible for my injuries $he is faulty, and the direct7immediatecause of my pain%. +n the other hand, my friend can sue for 1(* because he entered in acontractual a"reement with the buildin" owner. n exchan"e for rent, the buildin" ownermust pro'ide a safe apartment to my friend, but failed to do so.

Article 1(*A person ha'in" parental authority is liable to reparation for injury cause to another by the act orfault of the minor under his authority, unless he pro'es that he himself did not commit any faultwith re"ard to the custody, super'ision, or education of the minor.

A simple fault or accident still counts as a fault and you must pay for dama"es.

Article 1(-0


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A person who, without ha'in" parental authority, is entrusted, by dele"ation or otherwise, with thecustody, super'ision, or education of a minor is liable, in the same manner as the person ha'in"parental authority, to reparation for injury caused by the act or fault of the minor. >here he isactin" "ratuitously or for reward, howe'er, he is not liable unless it is pro'ed that he has committeda fault.

Article 1(-1Any person who, as tutor or curator or in any other 5uality, has custody of a person of full a"e whois not endowed with reason, is not liable to reparation for injury caused by any act of the person offull a"e, except where he is himself "uilty of a deliberate or "ross fault in exercisin" custody.

!xample 8ou are in char"e of carin" for a mentally disabled person. 8our job is to brin"him7her for a stroll down the street e'ery day $'olunteer wor%. +ne day, a car pulls o'erasin" for directions. 8ou tae two brief seconds to help him. >hile you turned around tohelp the car dri'er, the disabled person waled to a man and randomly hit him in the face.n such a case, you are not faulty because you were helpin" someone.

owe'er, if you start talin" to your best friend on your cell phone and omit to super'isethe disabled person, you will be held liable. 8ou did not perform your duty properly andcarelessly left him7her alone.

Article 1(-(An a"ent or ser'ant of the @tate or of a le"al person established in the public interest does not ceaseto act in the performance of his duties by the mere fact that he performs an act that is ille"al,unauthori6ed or outside his competence, or by the fact that he is actin" as a peace officer.

n other words, if a cop abuses you, the state or "o'ernment will be held liable.

Article 1(-*A person entrusted with the custody of a thin" $or object% is liable to reparation for injury resultin"from the autonomous act of the thin", unless he pro'es that he is not at fault.

Gor example, you dri'eway is 'ery steep. 8ou par your manual car and omit to put thehandbrae. The car rolls bac down the street and hurts a passerby. n such a case, you areresponsible for injuries caused by the car.

Gor example, you ha'e a dead tree on your lawn. 8our nei"hbour tells you to cut it becauseit is dead, but you refuse to do so. 4urin" the ni"ht, the dead tree falls on your nei"hbourFspool and breas it. 8ou are held liable for the dama"es caused by the dead tree.

Article 1(--The owner of an animal is liable to reparation for injury it has caused, whether the animal wasunder his custody or that a third person, or had strayed or escaped. A person main" use $e.". ridin"a horse% of the animal is, to"ether with the owner, also liable durin" that time.

Article 1(-/The owner of an immo'able, without prejudice to his liability as custodian, is liable to reparationfor injury caused by its ruin, e'en partial, where this has resulted from lac of repair or from adefect of construction.


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The owner of an apartment buildin" is liable if snow falls off the roof and harms a passerby.

The owner of an apartment buildin" is liable if a balcony falls or any other type of dama"escaused by lac of maintenance.

Article 1(-The manufacturer is liable for any safety defect associated with its products. 8ou are also liablewhen importin" products or sellin" them $i.e. retailers%.

Article 1(-A thin" $or product% has a safety defect where, ha'in" re"ard to all the circumstances, it does notafford the safety which a person is normally entitled to expect.

!.". purchase a toaster, and it ends up catchin" on fire. As a result, my entire itchencau"ht on fire. A person does not normally expect a toaster to catch on fire.

can ultimately sue e'eryone in the chain $manufacturer, importer, and retailer%. All liable bodies should ha'e nown about the defect $that is how the court percei'es it%. f a product does not ha'e the safety precaution picto"rams on it, it is deemed as a safety

defect. @ufficient warnin" & warnin" of all attendant dan"ers $related to dan"ers nown to all%. !.". we all now that smoin" around "as is dan"erous. >e all now that coffee is hot.

Article 1(/0A person may free himself from his liability for injury caused to another by pro'in" that the injuryresults from superior force, unless he has undertaen to mae reparation for it. A superior force isan unforeseeable and irresistible e'ent, includin" external causes with the same characteristics.

!.". hurricane in Diami & foreseeable !.". hurricane in Dontreal & unforeseeable $'ery unliely%

Article 1(/1>here a person comes to the assistance of another person or, for an unselfish moti'e, disposes, freeof char"e, of property for the benefit of another person, he is exempt from all liability for injurythat may result from it, unless the injury is due to his intentional or "ross fault.

Hood @amaritan L you sa'e a man from a heart attach but brea one of his ribs while doin"B#); you will not be held liable

>hen "i'in" away property to charity $e.". donatin" a toaster to the @al'a"e Army or to afriend and it blows up L you are not liable%

Article 1(/2A person may free himself from his liability for injury caused to another as a result of thedisclosure of a trade secret by pro'in" that considerations of "eneral interest pre'ailed o'er eepin"the secret and, particularly, that its disclosure was justified for reasons of public health and safety.

>histle blowin" L nowin" that your employer dumps toxic wastes in the ri'er and youinform public security.

Article 1(/3


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The manufacturer, distributor, or supplier of a mo'able property is not liable to reparation forinjury caused by a safety defect in the property if he pro'es that the 'ictim new and could ha'enown of the defect, or could ha'e foreseen the injury.

9ictim new 9ictim could ha'e nown L there was sufficient indication on the product, but the 'ictim

didnFt read it $e.". someone is a chemical en"ineer but didnFt foresee that mixin" twodan"erous chemicals could be harmful% 9ictim could ha'e percei'ed the injury $e.". when usin" a shot "un, you should not place

your eye a"ainst the telescopic lens L you will "et a major blac eye%

Article 1(/( $Huaranteed in the Test%A person may not exclude or limit his liability for material injury caused to another throu"h anintentional or "ross fault; a "ross fault is a fault which shows "ross reclessness, "ross carelessnessor "ross ne"li"ence. e may not in any way exclude or limit his liability for bodily or moral injurycaused to another.

!.". 8ou "o bunji jumpin". owe'er, the employee for"ot to wei"h you and put a ri"idcord that broe your le"s. e says that he is not responsible because you si"ned somepapers before jumpin". n this case, you can definitely sue. They are liable.

Cecause this is an example of a simple fault $unintentional fault%, they are liable for moraland bodily dama"es, but not material, such as ripped jeans%

owe'er if the fault is intentional, they would be liable for e'erythin" includin" materialdama"es.

Article 1(/*A notice, whether posted or not, stipulatin" the exclusion or limitation of the obli"ation to maereparation for injury resultin" from the nonperformance of a contractual obli"ation has effect, inrespect to the creditor, only if the party who in'oes the notice pro'es that the other party wasaware of its existence at the time the contract was formed.

!.". #uttin" you jacet in coat chec. >hen picin" it up, it is destroyed. !'en thou"h thereis a si"n indicatin" that the club is not liable, they are liable. They would ha'e to pro'e thatyou new about the si"n, which is too hard to pro'e.

Article 1(/-A person may not by way of a notice exclude or limit his obli"ation to mae reparation in respectof third persons; such a notice may, howe'er, constitute a warnin" of dan"er.

!.". f you post a warnin" about the fact that you ha'e a do" $Ceware of 4o"s%, andsomeone "ets bit on your property, you are still held liable.

Article 1(/>here an injury has been caused by se'eral persons, liability is shared by them in proportion to theseriousness of the fault of each. The 'ictim is included in the apportionment when the injury ispartly the effect of his own fault.

This article pertains to contributory ne"li"ence L when the injury has been caused by manypeople.

!.". >hen your own do" bites a passerby who was on your pri'ate property, both of youare at fault $you are *0N faulty, while the 'ictim is *0N faulty%.


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COMM 315 NOTES FOR FINAL EXAMINATION

CASE ANAL/SIS

BA@! 1 L #!B !@TAT! 9. BA@@! 4FQB+J+D! #+:+JA@!

Gacts 3 separate mandates

1. The niece was the li5uidator of the auntFs estate upon death2. The nephew was in char"e of mana"in" the auntFs money and dealin" with

the ban3. The ban was in char"e of protectin" the auntFs money

The aunt went for a strip to her nati'e #oland. 4urin" her trip, she passed away. >hen the niece learned about the death of her aunt, she be"an li5uidatin" her estate. At her

"reat surprise, she reali6ed that her auntFs term deposit certificates of E2/,000 werewithdrawn.

The nephew, who learned about his auntFs death before e'eryone else, created a for"edletter from his aunt instructin" the OCaisse Dconomie Polonaise du QubecP to pay hernephew the sum of E2/,000.

The ban accessed the auntFs term deposit certificates, turned them into cash, and "a'ethem to the nephew.

The plaintiff $the niece% is excessi'ely upset, and wishes to properly li5uidate her auntFsestate $the way she was ased to by her aunt%.

The ban should ha'e ased itself 5uestions because the redemption of the term depositcertificates in'ol'ed the renunciation of an important amount of accrued interest. Gurtherin'esti"ation should ha'e been conducted.

The court is of the opinion that a number of factors should ha'e alerted the ban to the

possibility that the nephew was exceedin" the mandate that the aunt had "i'en him. Gor these reasons, the Bourt condemns the ban to pay the niece a sum of E2/,000 witinterest from the date of ser'ice.

Article 213 applies to this case L a mandatary $the ban% is bound to fulfill the mandate hehas accepted, and shall act with prudence and dili"ence in performin" it.

BA@! 2 L 4). AJT+J8 4+>!:: AJ4 J+TA)8 !4HA) A8!::@

Gacts Roseph had money, but a lot of debt.

Roseph wishes to "o banrupt, but cannot do so because he has money to his name. Roseph decides to purchase an apartment buildin" under the name of 4r. Anthony 4owell, aperson with whom he had pre'iously undertaen transactions such as this one.

Cy purchasin" the apartment buildin", Roseph no lon"er has money. Roseph decides to mort"a"e the buildin" under 4r. Anthony 4owellFs name, but taes the

cash proceeds from the mort"a"e of the buildin". 4r. Anthony 4owell is increasin"ly concerned by his participation in the scheme.


16/24

4r. Anthony 4owell became suspicious when he found that an amount held in trust for themaintenance of the property was taen by Roseph.

After the papers si"ned, 4r. 4owell became the owner of the property incurred, and hadsubstantially lar"e obli"ations toward innumerable third parties, such as the mort"a"ecreditor, tenants, and municipal7school authorities.

4urin" the initial period, Roseph became the mandatary, and was in char"e of all daytodayadministration of the property. 4r. 4owell hired a notary $the defendant% to mana"e the propertyFs trust account, and mae

sure that all che5ues were properly justified. The defendant was in char"e of ensurin" thatall amounts taen by Roseph were put towards the maintenance of the property.

n other words, 4r. 4owell $the mandator% hired Jotary !d"ar ay!llis $mandatary% totae care of the propertyFs trust account.

n this case, there are 2 mandates; one between 4r. 4owell and Roseph $administration ofthe property%, and one between 4r. 4owell and the notary $administration of the trustaccount aimed at co'erin" expenses associated with the maintenance of the property%.

The mandate of interest in this case is the one between 4r. 4owell and the notary. Dany che5ues were used for purposes in no way related to the property. @ome che5ues had

e'en disappeared. Article 1(* $from the Bi'il Bode of Suebec, Bi'il :iability% L !'ery person has a duty to

honour his contractual undertain"s. >here he fails in his duty, he is liable for any bodily,moral, or material injury he causes to the other contractin" party and is liable for reparationof the injury.

Article 2130 $from the Bi'il Bode of Suebec, Dandates% L A mandatary is bound to fulfillthe mandate he has accepted, and he shall act with prudence and dili"ence in performin" it.e shall also act honestly and faithfully in the best interests of the mandator.

As a result, 4r. 4owell won the case.

BA@! 3 L 1(-(00 BAJA4A JB. 9!)@K@ J!T>+) T)AJ@#+)T :T4.

Gacts #laintiff & 1(-(00 Banada nc. 4efendant & Jetwor Transport :td. The plaintiff too o'er the lease that Jetwor Banada :td. had for a certain industrial

property owned by Blarid"e #roperties :td. The offer to lease was si"ned by the president of Jetwor Transport :imited, not on behalf

of Jetwor Transport :imited, but rather on behalf of its wholly owned subsidiary inSuebec.

#rior to the expiry of the lease term, Jetwor Transport :imited abandoned the leasedpremises without lea'in" the remainin" amount due in rent.

>hen 1(-(00 Banada nc. mo'ed in, there was a substantial amount still due in rent. Theowner of Blarid"e #roperties :imited was now asin" 1(-(00 Banada nc. to co'er for theunpaid rent.

Jetwor Transport :imited refuses to pay the amounts claimed by 1(-(00 Banada nc. Jetwor Transport :imited claims not bein" responsible for the unpaid rent because the

plaintiff was actually dealin" with the wholly owned subsidiary that is now closed.


17/24

owe'er, the plaintiff claims to ha'e belie'ed that, at all times, it was dealin" withJetwor Transport :imited as a lessee. There was no e'idence of the contrary.

The president of Jetwor Transport :imited induced the lessor to belie'e that it wasdealin" with the parent company rather than its subsidiary.

Cy doin" so, the president committed a fraud, under Article 31/.

Article 31/ n no case may a le"al person $or company% set up juridical personality a"ainsta person in "ood faith if it is set up to dissemble fraud, abuse of ri"ht or contra'ention of arule of public order.

Althou"h Jetwor Transport :imited and its subsidiary are two le"al entities, the Bourtretains the fact that their acti'ities are united.

1(-(00 Banada nc. sees a condemnation a"ainst the defendant for the total rent due, withinterest, as well as additional indemnity contemplated by Article 1-1.

Article 1-1 An indemnity may be added to the amount of dama"es awarded for anyreason.

BA@! ( L H)+KU 9!)@K@ DA:

Gacts Dr. Dali sold his land to the plaintiff, Dr. Hiroux. Dr. Hiroux purchased the land in the hopes of buildin" a property. owe'er, when attemptin" to obtain construction permits, Dr. Hiroux realised that the soil

on the land did not allow for a septic system and dwellin". Dr. Hiroux now claims that Dr. Dali new about this problem since 1, but did not say

anythin" when the transaction too place. The plaintiff is seein" his money bac and E10,000 in dama"es. Accordin" to Article 1(01, error induced by fraud $i.e. misrepresentation of property%

'itiates consent. Also, as stated in Article 1(01, fraud may result from silence or concealment. n this case, Dr. Dali remained silent and did not inform the purchaser of this major

problem. owe'er, in his defence, Dr. Dali claimed ha'in" told his real estate a"ent to inform

buyers of the problem. The a"ent did not say anythin" to Dr. Hiroux. Dr. Dali claims notbein" responsible for this occurrence as he did inform his a"ent.

Accordin" to Article 21-0, a mandatory is also liable to third persons for the acts performedby the mandatary in the performance and within the limits of his mandate.

The Bourt maintains that, "i'en the importance of the problem when purchasin" land, Dr.Dali had the obli"ation to ensure that the messa"e was sent across from the mandatary tothe third party.

e had the responsibility to ensure that the buyer was fully aware of the problem. Jow, when the consent is 'itiated throu"h fraud resultin" from silence, the plaintiff can use

Article 1(0/ $the plaintiff can either cancel the o'erall contract or chan"e it%. n this case, the plaintiff cancelled the contract because he really needed a septic system to

build a property. Dali "ot his land bac, and the plaintiff "ot his money bac plus dama"es.


18/24

Article 1(1 $relati'e nullity% also applied to this case. A contract is relati'ely null wherethe condition of formation sanctioned by its nullity is necessary for the protection of anindi'idual interest, such as where the consent of the parties or of one of them is 'itiated.

BA@! * L #!T!) 9!)@K@ GA@B!Gacts

Dr. Giasche is the owner of a restaurant called OBhe6 HinoP. Dr. Giasche is a family friend of Dr. Hucciardo, husband of Drs. A"nes #eter Hucciardo. Dr. Hucciardo had lost his employment, and was seein" a new job. Dr. Giasche proposed to sell his restaurant, and assured Dr. Hucciardo that it would be a

"old mine. Dr. Giasche created false income statements depictin" hi"h net sales and profits. Dr. Giasche also told Dr. Hucciardo that he had a Ospecial wayP of reportin" income $i.e.

tax e'asion%. owe'er, at that time, Dr. Hucciardo did not understand what Dr. Giasche meant by

Ospecial way of reportin" incomeP. Dr. Giasche did not want to explain any further until Dr. Hucciardo "a'e a E100,000

deposit. Dr. Giasche ur"ed Dr. Hucciardo to remort"a"e his house because numerousbuyers were interested in the restaurant.

Dr. Giasche told Dr. Hucciardo that if sales were low, he would reimburse him the totaldeposit.

+nce the deposit "i'en, Dr. Hucciardo be"an runnin" the business. owe'er, sales wereterrible and excessi'ely low.

There was also a fre5uent presence of a tax auditor, which Dr. Giasche claimed to besimply 'erifyin" if the cash re"isters were worin" properly.

Dr. Hucciardo be"an to understand what was "oin" on. e had been triced intopurchasin" the restaurant, and was runnin" a business that was a"ainst public order $taxe'asion%.

Dr. Hucciardo ased Dr. Giasche to reimburse him the deposit. owe'er, Dr. Giascherefuses, and claims ne'er to ha'e said such a thin".

Cecause the contractFs cause is fraud to "o'ernment, the contract is deemed as null $Article1(11 L A contract whose cause is prohibited by law or contrary to public order is null%.

Accordin" to the Bourt, it has ne'er existed and will not be reco"ni6ed $Article 1(22 L Acontract that is null is deemed ne'er to ha'e existed%.

At this 'ery point, the jud"e can either dismiss the case or jud"e in e5uity $this is to thejud"eFs discretion%.

This case is clearly unfair. >hile the seller now has E100,000 in his pocet alon" with therestaurant, the buyer has remort"a"ed his house and has lost his money.

>hen not tain" into consideration the unlawful cause of the contract, Dr. Giaschecommitted fraud by misrepresentin" the 'alue of the restaurant $i.e. false incomestatements%. Knder Article 1(01, error induced by fraud 'itiates consent.

The jud"e ordered Dr. Giasche to "i'e bac E100,000 to Dr. Hucciardo. owe'er, becauseof the contractFs unlawful cause, no dama"es were awarded.

+ne must remember that when enterin" a contract with an unlawful cause, you are tain" a"reat ris because the jud"e may not want to partae in the case.


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Article 1(1 also applies to this case $absolute nullity%.

BA@! - L BA))!G+K) :AJH!:!) 9!)@K@ BJ!#:!U +4!+J

Gacts 2 contracts are present in this case; one between Barrefour :an"elier and Bineplex +deon,and one between Bineplex +deon and Hu66o.

Barrefour :an"elier built and leased a cinema complex to Bineplex +deon. owe'er, before Bineplex +deon mo'ed in, it decided to sublease the complex to Hu66o. The landlord is upset, and does not want a Hu66o mo'ie theatre in Barrefour :an"elier. The landlord states to ha'e promised all the stores and customers that a Bineplex +deon

would be built. Bineplex +deon promises that Hu66o will be operatin" under the appearance of a Bineplex

+deon. The landlord maes them si"n contracts statin" that Hu66o shall operate under BineplexFs

banners, and that Bineplex +deon would boo all mo'ies shown at the cinema for Hu66o. After a year of operation, Hu66o remo'es all Bineplex banners, and installs Hu66o si"ns

e'erywhere. The landlord is upset and sues. n its defence, Hu66o appears for Articles 1(01, 1(02, 1(03, and 1(0(. Hu66o states that Barrefour :an"elier made it si"n a"reements by tellin" Hu66o that it had

already promised other tenants and customers that a Bineplex +deon would be built.Accordin" to Hu66o, such assertions were false and consisted of a misrepresentation$Article 1(01%.

Hu66o also states that it si"ned the a"reements by fear of losin" business $Article 1(02%.Hu66o stated that Bineplex +deon is a lar"e competitor, and that refusin" to si"n could starta conflict $Article 1(03%.

Hu66o also appeared for Article 1(0(, statin" that it was a 'ictim of lesion. Jow, accordin" to the Bourt, none of the articles pertain to this case. Gor example, lesion

solely applies to cases in'ol'in" minors or people under a re"ime of protection. As stated inArticle 1(0*, lesion 'itiates consent only in respect of minors and persons of full a"e underprotecti'e super'ision.

The Bourt also maintained that Hu66oFs fear of losin" business is not a fear lar"e enou"h toapply to Article 1(02. The jud"e claims that Hu66o had a subjecti'e fear that all otherentrepreneurs ha'e. e rejected the use of Article 1(02.

Also, the landlordFs claim to ha'e promised tenants and customers that a Bineplex +deonwould be build does not constitute misrepresentation under Article 1(01.

)e"ardin" Barrefour :an"elier, the landlord wants the a"reement contract to be in effectunder a specific performance obli"ation. e wants Hu66o to operate under a Bineplex+deon.

The jud"e orders Hu66o to operate under a Bineplex +deon $under a specific performanceobli"ation%.

( cases which do not allow for a specific performance obli"ation


20/24

>hen the obli"ation has become impossible to perform $you can "et your money bac plusdama"es, but not a specific performance obli"ation%

>hen the time in which to perform the obli"ation has elapsed $!.". you pay Beline 4ion tosin" at the Cell Benter on Ranuary 1st200, at /pm. owe'er, the time has elapsed becauseshe missed a plane and didnFt show up. 8ou can "et your money bac plus dama"es, but

cannot obtain a specific performance obli"ation% >hen property has perished $e.". an import7export ship sins% >hen property has left the patrimony $e.". you send the description and price of a car you

are tryin" to sell to #erson C. Cy the time #erson C replies, you sold the car to #erson B.The car is no lon"er in your patrimony. Therefore, #erson C can obtain dama"es, but not aspecific performance%

n this case, the lease under Bineplex +deon is not impossible to perform, the time in which toperform the lease has not elapsed, the property has not perished, and the property has not left thepatrimony. Therefore, the landlord can force Hu66o to operate under Bineplex +deon $under aspecific performance obli"ation%.

BA@! / L B+#@B+#! JB. AJ4 T)D B+#8 B!JT!)@

Gacts TD) Bopy $plaintiff% is in the business of offerin" photocopy ser'ices to the public by

means of photocopy machines which are placed in stores carryin" on business operations ofanother nature, such as con'enience stores and pharmacies.

TD) Bopy installed its photocopy machines in approximately /00 business locations. Cefore installin" its photocopy machine in a store, a contract was to be si"ned by the

business operator. A noncompetition co'enant was present and stated that the businessoperator may not deal directly or indirectly with anyone or any company connected with thebusiness of main" photocopy e5uipment a'ailable for use by the public for a period of 1year, within a 2*mile radius from the business location.

Bopiscope $defendant% is also in the photocopy business. n 1/, it embared on a pro"ramaimed at persuadin" business operators to terminate their contract with TDB Bopy andenter into an a"reement with Bopiscope.

TD) Bopy sues Bopiscope for an interlocutory injunction in order to stop Bopiscope fromtain" o'er its business.

TD) Bopy insisted that the noncompetition co'enant was used to protect the companyFstrade secrets.

The Bourt concluded that the noncompetition co'enant was manifestly unreasonable andtherefore in'alid. t follows that the respondent has not established an apparent ri"ht $orclear ri"ht%, which is necessary for the "rantin" of an interlocutory injunction.

There is also no e'idence that the business operator has nowled"e of any trade secrets. tssole role is that of ascertainin" that the machine has a supply of paper and in andcollectin" the fee for its use.

Also, the contract si"ned by business operators to TD) Bopy was a contract of adhesion$Article 13/ L a fixed contract with no ne"otiation%.

BA@! L A))@ 9!)@K@ +@T)+D+H:@


21/24

Gacts #laintiff & Dr. arris 4efendant & Dr. +stromo"ilsi The plaintiff had been leasin" a taxi cab from the defendantFs wife.

!'ery wee, the plaintiff would "o to the defendantFs house to settle his accounts and "i'eroyalties. +ne day, the plaintiff went to the defendantFs house to settle his accounts. owe'er, the

past wee had been relati'ely 5uiet and Dr. arris did not collect much money. The defendant "ot 'ery upset, and se'erely harmed the plaintiff. e beat him up. n his defence, the defendant stated that Dr. arris simply fell hard on the way out. +n the other hand, Dr. arris stated that the defendant beat him up se'erely. >hich scenario is more plausibleV Accordin" to the jud"es, the plaintiffFs story is more

liely to ha'e occurred. A test was conducted to assess the defendantFs ci'il liability. The defendant is at fault, he is

the direct7immediate cause of the dama"es, and the dama"es he inflicted on the plaintiff aremoral, bodily, and material. ence, there is a ci'il liability under Article 1(*/.

Knder Article 1-21, where the awardin" of puniti'e dama"es is pro'ided by law, theamount of such dama"es may not exceed what is sufficient to fulfill their pre'enti'epurposes.

The defendant had two trials; a ci'il trial and a criminal trial. n the criminal trial, the defendant was found "uilty, and had to do jail time. n the ci'il case, the defendant had to pro'ide compensatory dama"es $moral, bodily,

material% to the 'ictim. There was a re5uest for puniti'e dama"es. owe'er, these dama"es were refused as one

cannot be punished twice for the same assault $i.e. jail time%.

BA@! L >A:!) 9!)@K@ @JH!)

Gacts This case pertains to the story of a brief relationship between a man, Dr. >aler, and a

woman, Drs. @in"er. They fell in lo'e, and mo'ed in the same buildin". !ach had a separate apartment. Drs. @in"er "ot pre"nant, and went to a clinic to "et an abortion. Their relationship was still

'ery recent. Drs. @in"er "ot immensely frustrated by this unfortunate occurrence, and entered Dr.

>alerFs apartment to destroy his clothes. Dr. >aler also saw her lea'in" that day with a lar"e suitcase. @he was iced out of the

apartment buildin" by the owner. >hen Dr. >aler entered his apartment, he reali6ed thatnumerous pieces of his wardrobe and personal belon"in"s were missin".

e reported the incident to the nearest police station. @oon after, Drs. @in"er learned about the complaint filed by Dr. >aler, and decided to file

a complaint of her own on sexual assault a"ainst Dr. >aler. n Bourt, the jud"e did not belie'e a sin"le word from Drs. @in"er. er interpretation of

e'ents was extremely conflictin" and confusin". Drs. @in"erFs attorney ur"ed her to drop the char"es a"ainst Dr. >aler.


22/24

The Bourt concluded that she fabricated the sexual assault story in order to "et e'en withDr. >aler.

Jow, to say that a person has committed sexual assault when it is not true is a serious attachto his reputation and sense of di"nity.

Dr. >aler sues for dama"es to reputation, di"nity, stress, and incon'enience, under

Article 1(*/. Article 1(*/ L !'ery person has a duty to abide by the rules of conduct which lie upon himso as not to cause injury to another. >here he is endowed with reason and fails in his duty,he is responsible for any injury, whether it be bodily, moral or material in nature.

Dr. >aler is awarded compensation for moral dama"es. Jow, Dr. >aler re5uests puniti'e dama"es, which he is awarded.

BA@! 10 L GA)DA@ 9!)@K@ BAJA4AJ T)! B+)#+)AT+J

Gacts #laintiff & Dr. Garmais Dr. Garmais is *( years old, and purchased a step ladder to wor on his retirement home in

Hreece. e purchased the ladder at Banadian Tire in +ntario, and "ot it shipped to Hreece. Accordin" to the plaintiff, the ladder was safely paca"ed in rubber, plastic, and cardboard. >hen the ladder arri'ed in Hreece, Dr. Garmais be"an worin" on his retirement home. >hile he was standin" on the third step of the ladder $out of fi'e steps in total%, he lost his

balance, and the ladder collapsed. The plaintiff broe his anle and hill. The plaintiff decides to sue based on the fact that he was not ade5uately warned concernin"

the use and riss associated with the ladder. Dr. Garmais came bac to Banada in order to recei'e medical attention. 1 year W later, he ased his wife to ship bac the ladder. The plaintiff "ot the ladder tested by a professional en"ineer, who concluded that the ladder

must ha'e had a prepurchase defect. owe'er, another silled en"ineerin" doctor was brou"ht to Bourt. e testified that the

ladder in issue met all industry standards and, under normal use, could not ha'e failed in themanner su""ested by the plaintiff.

The Bourt found that it is nearly impossible to determine whether dama"e to the ladder wasdone before the purchase or after, say durin" the transportation to Hreece.

Also, Dr. Garmais did not see the ladder for 1 W years after his return to Banada. Theladder has made two crossAtlantic trips before it was seen by an expert.

Dr. GarmaisFs expert finally a"rees with the Bourt, but now ar"ues that there wasinsufficient si"na"e on the ladder itself.

owe'er, it was found that the ladder did contain proper si"na"e, but that Dr. Garmaisremo'ed them before usin" it.

The Bourt ultimately concluded that Dr. Garmais new or could ha'e nown of thepotential defect $Article 1(/3 L the manufacturer of a mo'able property is not liable toreparation for injury caused by a safety defect if he pro'es that the 'ictim new or couldha'e nown of the defect%.

ence, Dr. Garmais lost the case.


23/24

BA@! 11 L >A:G+)4 9!)@K@ RABKXX

Gacts

>alford purchased a (foot pool $'ery shallow%. >alford also purchased a 10foot slide $possible dan"er%. Drs. >alford told her dau"hter not to slide head first $warned her dau"hter of possible

dan"ers%. The dau"hter was 1- years old at the time, and decided not to listen to her mother and slid

down head first. @he broe her nec. Drs. >alford sues Racu66i for improper si"na"e on the slide. @he ar"ues that there were

insufficient warnin"s. owe'er, the Bourt found that Racu66i was not the immediate and direct cause of her

dau"hterFs injury. The actual cause of the accident was >alfordFs failure to heed her motherFs warnin"s. Also, the Bourt concluded that the dau"hter and mother should ha'e nown or foreseen the

injury $Article 1(/3 L a manufacturer is not liable to reparation for injury caused by a safetydefect if he pro'es that the 'ictim new or could ha'e foreseen the injury%.

The Bourt concluded that Racu66i should build more prominent, durable, and detailedwarnin"s pertainin" to the use of water slides. owe'er, there was no causal connectionbetween an illustration on the co'er of the pool or slide and the injuries sustained by theplaintiff.

BA@! 12 L D+)@! 9!)@K@ B+TT C!9!)AH!@ >!@T :T4

Gacts Bott Ce'era"es nc. produces sodas. Tami Dorse $plaintiff% purchases a two litre bottle of pop. @he is unable to turn the metal

twistoff cap, and decides to use a nutcracer to "et a better "rip. As she started the turnin"motion, she heard a poppin" noise and the cap hit her strai"ht in the eye.

@he suffered numerous injuries to her ri"ht eye. @he sues Bott Ce'era"es nc. @he hires a lawyer, and he "oes to loo at the machine used to cap the bottles. The machine

is said to cap at different pound le'els. The manufacturer of the cappin" machine, Aluminum Bompany of America, pro'ided Bott

Ce'era"es :td. with a manual on how to properly use the machine. n the manual, it is stated that soda manufacturers should not cap passed a 1*pound

pressure. The manual clearly states that Oany improperly adjusted or maintained capper cancause improper closure application, resultin" in sudden closure ejection and serious injury,often to the eyeP.

The manual also stated that Ohi"h tor5ue may lead the consumer to use a tool or de'ice toaid in remo'in" the closureP.

Bott Ce'era"es nc. ultimately decided to cap at a 13pound pressure $within limits%. owe'er, the company reali6ed that this pressure was insufficient because numerous caps

were comin" off durin" transportation to retailers.


24/24

Bott Ce'era"es nc. decided to cap at a 20pound pressure $hi"hly abo'e su""ested limit%. As a result, Bott Ce'era"es nc. is the immediate and direct cause of the injury. Knder Article 1(-, a thin" has a safety defect where it does not afford the safety which a

person is normally entitled to expect $you do not expect a bottle cap to pop lie it did%. Also, under Article 1(-, the manufacturer is liable to reparation for injury caused to a third

person by reason of a safety defect in the thin" $it is the immediate cause of the injury%. Knder Article 1(*/, e'ery person $includin" companies% has a duty to abide by the rules ofconduct so as not to cause injury to another. >here he is endowed with reason and fails inhis duty, he is responsible for any injury he causes to another person by such fault and isliable to reparation for the injury, whether it be bodily, moral or material in nature.

Therefore, Bott Ce'era"es nc. must pro'ide the plaintiff with compensatory dama"es. Also, because Bott Ce'era"es nc.Fs fault was intentional $i.e. the company was aware of

the possible injuries resultin" from increasin" the cappin" pressure%, the plaintiff is entitledto puniti'e dama"es.

93835009-comm-315-notes-for-final (1)

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