LA GÉNÉALOGIE DE LA FAUTE LOURDE EN DROIT QUÉBÉCOIS

Abstract

Gross fault has existed as a legal concept for over two millennia. Originating in Roman law, it has evolved over the centuries, notably through the definition given to it by the French jurist Pothier. Quebec law initially adopted this definition of gross fault. The concept was then shaped by decisions of our courts, until lawmakers gave it an official definition with the adoption of the Civil Code of Quebec (“faute lourde”). Today, the application of gross fault is rendered difficult by the strict interpretation given to it by judges. An analysis of the foundations of gross fault and of recent case law encourages us to believe that the definition will be revised to conform more closely to the wording of the Civil Code of Quebec.