Contractual Obligations – Prof. Helge Dedek Introduction 1

CVL – Slush Puppie c. 153226 Canada Inc., [1994] RJQ 1703 (CQ), CB: 67

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  Slush Puppie refuses to disclose how the test works
  
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  Slush Puppie also wants to rely on the contractual provision that says that tests conducted by Slush Puppie are taken to be conclusive and cannot be contested by the store
  
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  This provision is abusive/unconscionable according to CCQ 1437 because it relieves Slush Puppie of all burden of proof of establishing a breach of the contract by the store. It is excessively and unreasonably detrimental to the adhering party – the court will not recognize it.
  
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  Slush Puppie did not provide any substantial evidence of breach  their claim must therefore fail for lack of proof.
  

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  It can be messy to invalidate just one part of a contract, because a good contract will have all of the parts integrated
  
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  Is this really LESION? It seems more like unconscionability to me – it is not an inequality of prestations, and the depanneur is not in an extremely disadvantaged position except by the contract provision itself (will is not overborne as in CML)
  

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  This is a contract of adhesion  it is pre-determined, in form and substance. It is therefore valid to open this contract up to scrutiny by the court for illegibility, incomprehensibility, or abusiveness.
  
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  The court is trying to balance the concerns of the sponsor with the concerns of the government.
  
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  Art. 1437 – threefold test: (1) Excessive? (2) Unreasonable (disproportion of prestations)? (3) Not in good faith? The clause passes this test and is not contrary to l’ordre public.
  
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  “Le contrat ne comporte pas, au sens de l’article 1437 CCQ, de désavantage pour l’adhérent à moins de considérer que toute obligation en est un en soi. Les inconvénients économiques qu’il peut subir doivent s’apprécier par rapport au bénéfice que lui rapport l’entreprise, soit la venue de personnes chères qui autrement n’auraient pas pu émigrer.”