Contractual Obligations – Prof. Helge Dedek Introduction 1

A contract is relatively null where the condition of formation sanctioned by its nullity is necessary for the protection of an individual interest, such as where the consent of the parties or of one of them is vitiated.

The relative nullity of a contract may be invoked only by the person in whose interest it is established or by the other contracting party, provided he is acting in good faith and sustains serious injury therefrom; it may not be invoked by the court of its own motion.

A contract is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest.

The absolute nullity of a contract may be invoked by any person having a present and actual interest in doing so; it is invoked by the court of its own motion.

void, adj. 1. Of no legal effect; null. • The distinction between void and voidable is often of great practical importance. Whenever technical accuracy is required, void can be properly applied only to those provisions that are of no effect whatsoever -- those that are an absolute nullity. -- void, avoid, vb. -- voidness, n.

void for vagueness. 1. (Of a deed or other instrument affecting property) having such an insufficient property description as to be unenforceable. 2. (Of a penal statute) establishing a requirement or punishment without specifying what is required or what conduct is punishable, and therefore void because violative of due process. -- Also termed void for indefiniteness. See VAGUENESS DOCTRINE

2. VOIDABLE. • Although sense 1 above is the strict meaning of void, the word is often used and construed as bearing the more liberal meaning of "voidable."

The Quebec Charter of Human Rights and Freedoms (R.S.Q.C-12)

Every person has a right to respect for his private life.

Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy,

sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to

palliate a handicap. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature

of a nonprofit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.

• 
  An employer cannot impose a contractual obligation on the employee’s conduct of his marital and family life. This is against public order (1373 CCQ), and article 5 of the Quebec Charter (right to respect for private life) – novel interpretation of this section of the Charter.
  

Baudouin J (concurring):

• 
  The condition is contrary to article 10 of the Charter, discriminatory on the basis of civil status (an unmarried employee would not have had this term of employment) and contrary to public order.
  

• 
  Although the condition of Villa moving his family was not part of the written contract, the court held that it was part of the employment agreement because both parties acknowledged that it was understood between them to be part of the agreement.
  
• 
  NOTE: it is not a material term of the contract, and can be severed.
  
• 
  [Note: Gendreau J. uses this argument to make it more broad because say for example the K said that if you have a girlfriend she is required to move, this would kill Beaudouin’s argument].
  
• 
  Charter can help in the interpretation of the words, “public order”
  
• 
  Instance of severability: the invalidity of the particular clause of the agreement did not render the rest of the agreement null, leaving Villa with the opportunity for recourse (indemnity)
  

The parties may stipulate in writing and in express terms that, even after the termination of the contract, the employee may neither compete with his employer nor participate in any capacity whatsoever in an enterprise which would then compete with him.

• 
  In both CML and CVL, “employee restraint covenants may be held invalid because of their unreasonable duration or because of their unreasonable territorial ambit”.
  
• 
  It is necessary to balance the interests of the employer in protecting his business and the employee in economic mobility.
  
• 
  Five years was too long a duration – one year would have been reasonable.
  
• 
  Canada-wide was too wide an ambit – Quebec would have been reasonable.
  
• 
  Forbidding Cameron to work “in any capacity” was also unreasonable.
  
• 
  The court cannot rewrite the agreement, but only sever clauses, which it must do here.
  

Pigeon J (dissenting):

• 
  Breach of (1) is disputed; breach of (2) is admitted.
  
• 
  Rejects formalistic reasoning of the majority – believes that each obligation within clauses should be severable from the rest.
  
• 
  Believes that the court should read down the clauses to a reasonable interpretation, thereby giving the employer protection from Cameron’s bad conduct, rather than to strike them down altogether, thereby letting Cameron to get away with his abusive behaviour.
  

• 
  Pigeon’s approach is more equitable, because it tries to read in only the reasonable part, according to the reprehensible actions of the employee. Clauses are not necessarily against public order just because the balance is off between employer and employee.
  

• 
  Art. 2089 CCQ now deals with this situation.
  

Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.

• 
  “We invalidate the surrogacy contract because it conflicts with the law and public policy of this State… we find the payment of money to a “surrogate” mother illegal, perhaps criminal, and potentially degrading to women.”
  
• 
  Custody granted to father only because it was found to be in the best interests of the child. Parental rights of Mrs. W not terminated, adoption by the stepmother voided.
  
• 
  Judge found that Mrs. W did not give valid consent – she did not have all of the required information, not having had the baby and not knowing how she would react when the baby was finally born.
  
• 
  “Coercion of contract” – “the natural mother’s irrevocable agreement, prior to birth, even prior to conception, to surrender the child to the adoptive couple. Such an agreement is totally unenforceable in private placement adoption.” The agreement can only occur after birth, and after the birth mother has been offered counseling.
  
• 
  Contract in direct conflict with family law statutes, which emphasize best interests of the child
  
• 
  Conflict of interest found with fertility centre, who were receiving money from the Sterns – incentive to hide facts that might undermine the deal
  
• 
  “Almost every evil that prompted the prohibition on the payment of money in connection with adoptions exists here.”
  

• 
  Paid surrogacy contracts are illegal in Canada
  
• 
  Had this surrogacy contract been held valid, and specific performance not enforced, the court would have had to consider awarding damages. This would have had the effect of a) putting a price tag on the baby, and; b) putting a de facto pressure on the natural mother to give up her baby.