LE CONTRÔLE JUDICIAIRE DES CLAUSES PÉNALES, D’INTÉRÊTS MORATOIRES ET DE FRAIS ADDITIONNELS

VERS UNE INTERPRÉTATION COHÉRENTE DU CODE CIVIL DU QUÉBEC

Abstract

This article concerns the judicial review of clauses related to compensation for damages caused by delay in the performance of pecuniary obligations, or moratory damages. The purpose of the article is to provide a coherent interpretation of articles 1617, 1622 and 1623 of the Civil Code of Québec and to propose a method for classifying so-called “moratory” clauses, such as penalty clauses, moratory interest clauses and additional cost clauses. We will conduct a critical analysis of the current doctrinal conceptualization of moratory damages and the judicial treatment of certain moratory clauses and offer a summary of the possibilities of judicial review for these clauses based on our interpretation of the aforementioned articles of the Civil Code of Québec. We conclude that, contrary to the majority doctrinal opinion, additional cost clauses, including extrajudicial costs clauses, should not be reviewed as penalty clauses, but rather, via a specific mechanism. We also argue that tribunals have the power to engage in judicial review of moratory interest rates, which we conceptualize as penalty clauses. This is, to our knowledge, the first time this interpretation has been proposed, and its potential implications and consequences are examined in the article’s conclusion.