The CCQ and Contractual Obligations
Art.
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Text
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Notes
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1378
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A contract is an agreement of wills by which one or several persons obligate themselves to one or several other persons to perform a prestation. Contracts may be divided into contracts of adhesion and contracts by mutual agreement, synallagmatic and unilateral contracts, onerous and gratuitous contracts, commutative and aleatory contracts, and contracts of instantaneous performance or of successive performance; they may also be consumer contracts.
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tries to set out every possible kind of K (exhaustive), moving from general to specific
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1385
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A contract is formed by the sole exchange of consents between persons having capacity to contract, unless, in addition, the law requires a particular form to be respected as a necessary condition of its formation, or unless the parties require the contract to take the form of a solemn agreement. It is also of the essence of a contract that it has a cause and an object.
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Ks are formed by exchange of consents unless otherwise stated (enforceable once consent is exchanged: particular forms of consent may sometimes be required, but general provision does not require tangible exchange)
Cause = subjective reason why each party entered into the K
Object = legal operation envisaged by the K
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1386
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The exchange of consents is accomplished by the express or tacit manifestation of the will of a person to accept an offer to contract made to him by another person.
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mental, not physical, operation is enough to signify consent [cf. CML doctrine of manifestation of assent]
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1387
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A contract is formed when and where acceptance is received by the offeror, regardless of the method of communication used, and even though the parties have agreed to reserve agreement as to secondary terms.
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cf. CML postbox rule and Denning in Entores
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1388
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An offer to contract is a proposal which contains all the essential elements of the proposed contract and in which the offeror signifies his willingness to be bound if it is accepted.
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same in CML (see Waddams below)
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1389
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An offer to contract derives from the person who initiates the contract or the person who determines its content or even, in certain cases, the person who presents the last essential element of the proposed contract.
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identities of offeror and offeree are variable – only identifiable when K concluded
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1393
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Acceptance which does not correspond substantially to the offer or which is received by the offeror after the offer has lapsed does not constitute acceptance. It may, however, constitute a new offer.
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Acceptance within a specified (or “reasonable”: cf. CCQ 1392) time
a contrario: a slightly changed acceptance can still be an acceptance
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1394
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Silence does not imply acceptance of an offer, subject only to the will of the parties, the law or special circumstances, such as usage or a prior business relationship.
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same in CML (see Waddams below)
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General Notes
The classical model of an offer is one in which all terms are stated and another person simply accepts
A typical offer will specify limitations such that those within the target group of offerees can accept it
Identities of offeror and acceptor are important, because: will determine when the K was formed; will determine where (in which jurisdiction) it was formed; interpretation of some Ks is more favourable towards one party
CVL Doctrine | CML Doctrine |
“Agreement of wills” (1378 CCQ)
“Formed by the sole exchange of consents” (1385 CCQ)
Declarations of parties are “manifestations of will” (1386 CCQ)
Exchange of consent accomplished when an offer to contract is accepted and the acceptance is received by the offeror (1387 CCQ)
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Formation described in terms of “offer” and “acceptance”
“Moment of responsibility” = “Meeting of the minds” – “Consensus ad idem” = Point at which a binding contract is formed
CML uses “Promise” often used instead of CVL’s neutral “Manifestation of will”
“The principal function of the law of contracts is to protect reasonable expectations engendered by promises” law is more concerned with protecting promisee’s expectations than carrying out promisor’s will.
Test of intention is not based in promisor’s mind, but on how promisor’s conduct would strike a reasonable person in promisee’s position
Other hand: promises only enforceable to the extent of the promisee’s reasonable understanding (can work against promisee, as it expects a reasonable promisee)
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Consequences of Finding a Valid Contract
The party wishing it enforced is entitled to performance
If the other party is unwilling, enforcing party is entitled to monetary compensation (“expectation damages”: default idea is that money can provide the party with what he/she expected to obtain through K performance – cf. RII in torts), subject to mitigation
Consequences of Finding a Void Contract
No one performs (preferable scenario for the party that wants out)
Maybe a little bit of mess to clean up (e.g., unjust enrichment) – but by far the simplest solution
Intention
CML Criteria for a Valid Contract (Classical)
1 – “Intention to Create Legal Relations” – if it’s not serious it is not binding (mere puff)
2 – “Offer and Acceptance” or “Meeting of the Minds” (the offer and acceptance must match)
3 – “Consideration”
Classical CML treats these categories as separate, but can be seen as inter-related, i.e. consideration could be given through offer and acceptance
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