Subaru Auto Canada v. Caravane et Auto du Cap J.E. 96-754 (C.A.)

Subaru Auto Canada v. Caravane et Auto du Cap J.E. 96-754 (C.A.)

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  Once again, I think there is a bit of a contradiction here. Marked departure from the standard of reasonableness, and simple unreasonableness are not the same thing. In criminal law, this is the basis for the distinction between civil and criminal negligence.
  
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  Subaru—there are still decisions that go against good faith. In this case the court does not find there was a lack of good faith. It brings into account the issue of notices. In this case it was said that notice must be received by Oct 1, but the Subaru dealer gets it on Oct 3. Subaru knew on Sept 30. The Subaru dealer stands firm and says that they did not receive notice on the date stipulated, therefore the k cannot be rescinded. It is usually the stronger party that insists on the strict legal rights. Therefore the good faith provision gives courts a lot of leeway. In Subaru it is actually the little guy insisting on strict legal rights. The court does agree with the dealership. Therefore sticking to the strict legal rights does not always contradict good faith.
  

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  There are certain uncontroversial remedies, but there are some which are controversial. What is the remedy that is given in Soucise, they do not hold the heirs responsible for everything since the time when they should have given the notice. The bank is estopped. This is a very passive remedy.
  
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  In Houle, contractual damages have been awarded. The bank breached its contractual obligations and will therefore be found liable.
  

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  Would the remedy be nullity? Unresolved question in contemporary Quebec civil law. Nullity applies to the defects of consent for error, lesion, fear.
  
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  Article 1399: doesn’t say consent can be vitiated by a lack of good faith.
  
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  Article 1375: doesn’t give a remedy =>Need 2^nd paragraph?
  
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  Not usually remedied by damages. Remedied by the nullity of the k. If something happens in pre-formation of k, that caused the parties to enter the k defectively, we have nullity. Poorly formed contract = nullity.
  
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  There’s a hole because 1375 doesn’t give a remedy. 1399 doesn’t take into account good faith. 1405 doesn’t take into account good faith.
  

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  Is this fraud? Or is it something else?
  
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  Baudouin + Jobin on pre-contractual obligation to inform: the foundation of the pre-contractual obligation of information is 1401(2) – fraud by reticence. So it is fraud. Fraud is now increasing its ambit yet again (being influenced by good faith). In most situations, this is the case – there is overlap in breach of obligation to inform and fraud by reticence. The remedy for a breach of the pre-contractual duty of information is the remedy for fraud. 1375 has brought into Quebec civil law a new contractual morality with an effect on the definition of fraud by reticence/concealment. Every pre-contractual breach of 1375 can fit itself in with a defect of consent.
  
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  The alternative view on good faith in the pre-contractual sphere is put forward by Vincent Karim, Brigitte Lefebvre.
  

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  The obligation to inform is not always a dol. It doesn’t always fulfil all the conditions because the dol necessitates voluntary acts and an intentional element that looks like bad faith. While there is an overlap, it is not in every case that the abstention from sharing of information that is a breach of 1375 is always going to be a 1401(2). There is a subtle difference between 1401(2) and 1375 – fraud requires an intentional bad faith element. The law of fraud in civil law has not grown like misrepresentation in common law. Lack of information that ought to be shared might not amount to fraud.
  
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  Article 1416 CCQ is the solution. “Any contract which does not meet the necessary conditions of its formation may be annulled”. Meant to cover gifts not in notarial form, things not in writing, hypothecs not in proper form, k’s that had language, formal, writing requirements that weren’t fulfilled. It does not actually say formal conditions – it says necessary conditions. Therefore, 1375 is now a necessary condition for the formation of contract. Now 1375 is an autonomous remedy with its own sanction.