S. Martin, “Pour une réception de la théorie de l’imprévision en droit positif québécois” (1993) 34 C. de D. 599

S. Martin, “Pour une réception de la théorie de l’imprévision en droit positif québécois” (1993) 34 C. de D. 599.

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  Considering the huge impact that the principle of caution would have on future state of civil liability (based on risk) we should embrace it warily. Penetration of concept of precaution is evident mostly in international law and communitarian laws (small self-governing communities). Inspires regulation in fields such as chemistry, pharmacy, aeronautics, nuclear energy, genetic engineering, environment, and medicine. F. Ewald said that he who introduces the risk must foresee that in not taking sufficient caution, in particular, abstention, he may be declared liable. It is still a principle and not has force of law until implemented in statute.
  
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  Two possible directions: Simple principle with political orientation that will have minor influence on law OR New juridical standard will great impact on evolution of law with impact on decision- making process
  
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  Caution principle can enrich the following essential juridical concepts:
  

- Will foster the development of research and impact studies like you see in environmental business and activities; more and more forms of impact studies of residual risks

- Increase in terms of form of information available is due to principle of precaution

- Certain tribunals have announced condemnations for failure to take precautionary measures even if defendant did not have access to the scientific knowledge.

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  Precaution adds element of subjectivity to laws e.g. allowing a state to oppose the development of research or a technology that it fears
  
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  Danger of drastically changing and impoverishing the law of liability based on risk:
  

Developing a regressive notion of liability founded on fault rather than risk

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  Problem is that liability based on fault and of liability based on risk are competing regimes where adoption of one could mean exclusion of other in past, risk won over fault in legislative enactments
  
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  Today, liability based on risk means victim establishes causal link between injury and actions of defendant and of little important whether risk of harm was foreseeable or uncertain. Only existence of intervening factor could exonerate defendant
  
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  As liability insurance figures more prominently in indemnifying victim, understandable why there is temptation to transform judicial notion of risk to insurance company friendly notion of probable risk
  
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  Present regime allows us to place charge of hazard and uncertainty on one who introduced risk and profited from it as opposed to victim  this traditional regime often challenged by providers of full-coverage insurance plans where both potential authors of harm (liability insurance) and potential victims ( personal insurance) are covered
  
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  BUT: financial arguments (suffering of insurance companies) should not be grounds for shifting to another regime. Basis for change should be philosophical in nature!
  
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  Essential objective of civil liability, i.e., to indemnify victim is best met though liability based on risk
  

P. Stoffel-Munck, Regards sur la théorie de l’imprévision:

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  The principle of co-operation has to do with doctrine in French administrative law re: doctrine of imprecision (unforseeability). Doctrine of Administrative law gives excuse for non-performance of K in cases of impracticability (economic) due to an abnormal change of circumstances. As for the basis of this principle of co-operation, he suggests that this principle is a deduction from the more general principle of good faith. Major characteristic of Civil law systems to refer to good faith rather than in Common law.
  
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  Three implications of co-operation:
  
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  Through this principle, a party to a K may be obliged to first renounce the exercise of a Contractual right or a Contractual power which is no longer useful or whose expected utility initial purpose as this appeared. The first spatial obligation issuing from co-operation is to renounce the strict performance of the K and not to insist on respect for exercise of contractual right
  
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  The principle of co-operation could oblige party of K to renegotiate the whole contract or just a specific term with or without the assistance of a third party; the negotiation would be an alternative to the termination of the K or to a judicial revision of the K
  
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  The principle of co-operation may signify that a party would be obliged to compensate the other party for the consequences of a non-co-operative behaviour; especially if this party insists on the strict performance of a K or if this party refuses to renegotiate the contract, the legal consequence could be that he would be liable for compensating the other party for the consequences of his non-co-operating behaviour
  
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  Stoffel also warns us of very serious reluctance toward this principle or some extension of it and he remarks that this resistance is greater in civil law as compared to commercial law in Civil law. Civil law and commercial law distinction is greater in Civil law.
  
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  Resistance to this principle is on philosophical or moral foundations, the principle of which is the reference is the autonomy of the will which is a basic fundamental principle against a clear or large reception of principle of co-operation; Stoffel says that lawyers which have moral considerations of guiding principles will resist principle of co-operation; principle of co-operation has to do with economic considerations rather than moral considerations.