LES PRESOMPTIONS LEGALES DE FAUTE ET DE RESPONSABILITE S’APPLIQUENT-ELLES AU CONTRAT?

Abstract

Do legal presumptions of fault and liability apply to the contract? This is a controversial issue in Quebec civil law. The so called extensive theory defended by the author holds that these presumptions apply as much to contractual as to extra-contractual liability. From the point of view of fairness, it is preferable for the legislator to favour equal treatment of the victims of identical circumstances, when the only variable is the existence of a contractual relationship. This is in fact what the legislator did when revising the Civil Code of Québec, by incorporating these presumptions as a supplement to the contract. Parties remain free to exclude them, except with respect to bodily or moral injury, where they are a matter of public policy.