Civil Code of Québec, C.c.Q.

CIVIL CODE OF QUÉBEC

S.Q., 1991, c. 64.

updated to March 1, 2004
last amendment: February 1, 2004

BOOK FIVE

OBLIGATIONS

TITLE ONE

OBLIGATIONS IN GENERAL

CHAPTER I

GENERAL PROVISIONS

1371.  

It is of the essence of an obligation that there be persons between whom it exists, a prestation which forms its object, and, in the case of an obligation arising out of a juridical act, a cause which justifies its existence.

1991, c. 64, s. 1371.

1372.  

An obligation arises from a contract or from any act or fact to which the effects of an obligation are attached by law.

An obligation may be pure and simple or subject to modalities.

1991, c. 64, s. 1372.

1373.  

The object of an obligation is the prestation that the debtor is bound to render to the creditor and which consists in doing or not doing something.

The debtor is bound to render a prestation that is possible and determinate or determinable and that is neither forbidden by law nor contrary to public order.

1991, c. 64, s. 1373.

1374.  

The prestation may relate to any property, even future property, provided that the property is determinate as to kind and determinable as to quantity.

1991, c. 64, s. 1374.

1375.  

The parties shall conduct themselves in good faith both at the time the obligation is created and at the time it is performed or extinguished.

1991, c. 64, s. 1375.

1376.  

The rules set forth in this Book apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them.

1991, c. 64, s. 1376.

CHAPTER II

CONTRACTS

SECTION I

GENERAL PROVISION

1377.  

The general rules set out in this chapter apply to all contracts, regardless of their nature.

Special rules for certain contracts which complement or depart from these general rules are established under Title Two of this Book.

1991, c. 64, s. 1377.

SECTION II

NATURE AND CERTAIN CLASSES OF CONTRACTS

1378.  

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.

1991, c. 64, s. 1378.

1379.  

A contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.

Any contract that is not a contract of adhesion is a contract by mutual agreement.

1991, c. 64, s. 1379.

1380.  

A contract is synallagmatic, or bilateral, when the parties obligate themselves reciprocally, each to the other, so that the obligation of one party is correlative to the obligation of the other.

When one party obligates himself to the other without any obligation on the part of the latter, the contract is unilateral.

1991, c. 64, s. 1380.

1381.  

A contract is onerous when each party obtains an advantage in return for his obligation.

When one party obligates himself to the other for the benefit of the latter without obtaining any advantage in return, the contract is gratuitous.

1991, c. 64, s. 1381.

1382.  

A contract is commutative when, at the time it is formed, the extent of the obligations of the parties and of the advantages obtained by them in return is certain and determinate.

When the extent of the obligations or of the advantages is uncertain, the contract is aleatory.

1991, c. 64, s. 1382.

1383.  

Where the circumstances do not preclude the performance of the obligations of the parties at one single time, the contract is a contract of instantaneous performance.

Where the circumstances absolutely require that the obligations be performed at several different times or without interruption, the contract is a contract of successive performance.

1991, c. 64, s. 1383.

1384.  

A consumer contract is a contract whose field of application is delimited by legislation respecting consumer protection whereby one of the parties, being a natural person, the consumer, acquires, leases, borrows or obtains in any other manner, for personal, family or domestic purposes, property or services from the other party, who offers such property and services as part of an enterprise which he carries on.

1991, c. 64, s. 1384.

SECTION III

FORMATION OF CONTRACTS

�1. � Conditions of formation of contracts

I � General provision

1385.  

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 have a cause and an object.

1991, c. 64, s. 1385.

II � Consent

1. Exchange of consents

1386.  

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.

1991, c. 64, s. 1386.

1387.  

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.

1991, c. 64, s. 1387.

2. Offer and acceptance

1388.  

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.

1991, c. 64, s. 1388.

1389.  

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.

1991, c. 64, s. 1389.

1390.  

An offer to contract may be made to a determinate or an indeterminate person, and a term for acceptance may or may not be attached to it.

Where a term is attached, the offer may not be revoked before the term expires; if none is attached, the offer may be revoked at any time before acceptance is received by the offeror.

1991, c. 64, s. 1390.

1391.  

Where the offeree receives a revocation before the offer, the offer lapses, even though a term is attached to it.

1991, c. 64, s. 1391.

1392.  

An offer lapses if no acceptance is received by the offeror before the expiry of the specified term or, where no term is specified, before the expiry of a reasonable time; it also lapses in respect of the offeree if he has rejected it.

The death or bankruptcy of the offeror or the offeree, whether or not a term is attached to the offer, or the institution of protective supervision in respect of either of them also causes the offer to lapse, if that event occurs before acceptance is received by the offeror.

1991, c. 64, s. 1392.

1393.  

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.

1991, c. 64, s. 1393.

1394.  

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.

1991, c. 64, s. 1394.

1395.  

The offer of a reward made to anyone who performs a particular act is deemed to be accepted and is binding on the offeror when the act is performed, even if the person who performs the act does not know of the offer, unless, in cases which admit of it, the offer was previously revoked expressly and adequately by the offeror.

1991, c. 64, s. 1395.

1396.  

An offer to contract made to a determinate person constitutes a promise to enter into the proposed contract from the moment that the offeree clearly indicates to the offeror that he intends to consider the offer and reply to it within a reasonable time or within the time stated therein.

A mere promise is not equivalent to the proposed contract; however, where the beneficiary of the promise accepts the promise or takes up his option, both he and the promisor are bound to enter into the contract, unless the beneficiary decides to enter into the contract immediately.

1991, c. 64, s. 1396.

1397.  

A contract made in violation of a promise to contract may be set up against the beneficiary of the promise, but without affecting his remedy for damages against the promisor and the person having contracted in bad faith with the promisor.

The same rule applies to a contract made in violation of a first refusal agreement.

1991, c. 64, s. 1397.

3. Qualities and defects of consent

1398.  

Consent may be given only by a person who, at the time of manifesting such consent, either expressly or tacitly, is capable of binding himself.

1991, c. 64, s. 1398.

1399.  

Consent may be given only in a free and enlightened manner.

It may be vitiated by error, fear or lesion.

1991, c. 64, s. 1399.

1400.  

Error vitiates consent of the parties or of one of them where it relates to the nature of the contract, the object of the prestation or anything that was essential in determining that consent.

An inexcusable error does not constitute a defect of consent.

1991, c. 64, s. 1400.

1401.  

Error on the part of one party induced by fraud committed by the other party or with his knowledge vitiates consent whenever, but for that error, the party would not have contracted, or would have contracted on different terms.

Fraud may result from silence or concealment.

1991, c. 64, s. 1401.

1402.  

Fear of serious injury to the person or property of one of the parties vitiates consent given by that party where the fear is induced by violence or threats exerted or made by or known to the other party.

Apprehended injury may also relate to another person or his property and is appraised according to the circumstances.

1991, c. 64, s. 1402.

1403.  

Fear induced by the abusive exercise of a right or power or by the threat of such exercise vitiates consent.

1991, c. 64, s. 1403.

1404.  

Consent to a contract the object of which is to deliver the person making it from fear of serious injury is not vitiated where the other contracting party, although aware of the state of necessity, is acting in good faith.

1991, c. 64, s. 1404.

1405.  

Except in the cases expressly provided by law, lesion vitiates consent only in respect of minors and persons of full age under protective supervision.

1991, c. 64, s. 1405.

1406.  

Lesion results from the exploitation of one of the parties by the other, which creates a serious disproportion between the prestations of the parties; the fact that there is a serious disproportion creates a presumption of exploitation.

In cases involving a minor or a protected person of full age, lesion may also result from an obligation that is considered to be excessive in view of the patrimonial situation of the person, the advantages he gains from the contract and the general circumstances.

1991, c. 64, s. 1406.

1407.  

A person whose consent is vitiated has the right to apply for annulment of the contract; in the case of error occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also claim damages or, where he prefers that the contract be maintained, apply for a reduction of his obligation equivalent to the damages he would be justified in claiming.

1991, c. 64, s. 1407.

1408.  

In the case of a demand for the annulment of a contract on the ground of lesion, the court may maintain the contract where the defendant offers a reduction of his claim or an equitable pecuniary supplement.

1991, c. 64, s. 1408.

III � Capacity to contract

1409.  

The rules relating to the capacity to contract are laid down principally in the Book on Persons.

1991, c. 64, s. 1409.

IV � Cause of contracts

1410.  

The cause of a contract is the reason that determines each of the parties to enter into the contract.

The cause need not be expressed.

1991, c. 64, s. 1410.

1411.  

A contract whose cause is prohibited by law or contrary to public order is null.

1991, c. 64, s. 1411.

V � Object of contracts

1412.  

The object of a contract is the juridical operation envisaged by the parties at the time of its formation, as it emerges from all the rights and obligations created by the contract.

1991, c. 64, s. 1412.

1413.  

A contract whose object is prohibited by law or contrary to public order is null.

1991, c. 64, s. 1413.

VI � Form of contracts

1414.  

Where a particular or solemn form is required as a necessary condition of formation of a contract, it shall be observed; it shall also be observed for modifications to the contract, unless they are only accessory stipulations.

1991, c. 64, s. 1414.

1415.  

A promise to enter into a contract is not subject to the form required for the contract.

1991, c. 64, s. 1415.

�2. � Sanction of conditions of formation of contracts

I � Nature of nullity

1416.  

Any contract which does not meet the necessary conditions of its formation may be annulled.

1991, c. 64, s. 1416.

1417.  

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

1991, c. 64, s. 1417.

1418.  

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.

A contract that is absolutely null may not be confirmed.

1991, c. 64, s. 1418.

1419.  

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.

1991, c. 64, s. 1419.

1420.  

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 that is relatively null may be confirmed.

1991, c. 64, s. 1420.

1421.  

Unless the nature of the nullity is clearly indicated in the law, a contract which does not meet the necessary conditions of its formation is presumed to be relatively null.

1991, c. 64, s. 1421.

II � Effect of nullity

1422.  

A contract that is null is deemed never to have existed.

In such a case, each party is bound to restore to the other the prestations he has received.

1991, c. 64, s. 1422.

III � Confirmation of the contract

1423.  

The confirmation of a contract results from the express or tacit will to renounce the invocation of its nullity.

It results only if the will to confirm is certain and evident.

1991, c. 64, s. 1423.

1424.  

Where the nullity of a contract may be invoked by each of the parties or by several of them against a common opposite party to the contract, confirmation by one of them does not prevent the others from invoking nullity.

1991, c. 64, s. 1424.

SECTION IV

INTERPRETATION OF CONTRACTS

1425.  

The common intention of the parties rather than adherence to the literal meaning of the words shall be sought in interpreting a contract.

1991, c. 64, s. 1425.

1426.  

In interpreting a contract, the nature of the contract, the circumstances in which it was formed, the interpretation which has already been given to it by the parties or which it may have received, and usage, are all taken into account.

1991, c. 64, s. 1426.

1427.  

Each clause of a contract is interpreted in light of the others so that each is given the meaning derived from the contract as a whole.

1991, c. 64, s. 1427.

1428.  

A clause is given a meaning that gives it some effect rather than one that gives it no effect.

1991, c. 64, s. 1428.

1429.  

Words susceptible of two meanings shall be given the meaning that best conforms to the subject matter of the contract.

1991, c. 64, s. 1429.

1430.  

A clause intended to eliminate doubt as to the application of the contract to a specific situation does not restrict the scope of a contract otherwise expressed in general terms.

1991, c. 64, s. 1430.

1431.  

The clauses of a contract cover only what it appears that the parties intended to include, however general the terms used.

1991, c. 64, s. 1431.

1432.  

In case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it. In all cases, it is interpreted in favour of the adhering party or the consumer.

1991, c. 64, s. 1432.

SECTION V

EFFECTS OF CONTRACTS

�1. � Effects of contracts between the parties

I � General provision

1433.  

A contract creates obligations and, in certain cases, modifies or extinguishes them.

In some cases, it also has the effect of constituting, transferring, modifying or extinguishing real rights.

1991, c. 64, s. 1433.

II � Binding force and content of contracts

1434.  

A contract validly formed binds the parties who have entered into it not only as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law.

1991, c. 64, s. 1434.

1435.  

An external clause referred to in a contract is binding on the parties.

In a consumer contract or a contract of adhesion, however, an external clause is null if, at the time of formation of the contract, it was not expressly brought to the attention of the consumer or adhering party, unless the other party proves that the consumer or adhering party otherwise knew of it.

1991, c. 64, s. 1435.

1436.  

In a consumer contract or a contract of adhesion, a clause which is illegible or incomprehensible to a reasonable person is null if the consumer or the adhering party suffers injury therefrom, unless the other party proves that an adequate explanation of the nature and scope of the clause was given to the consumer or adhering party.

1991, c. 64, s. 1436.

1437.  

An abusive clause in a consumer contract or contract of adhesion is null, or the obligation arising from it may be reduced.

An abusive clause is a clause which is excessively and unreasonably detrimental to the consumer or the adhering party and is therefore not in good faith; in particular, a clause which so departs from the fundamental obligations arising from the rules normally governing the contract that it changes the nature of the contract is an abusive clause.

1991, c. 64, s. 1437.

1438.  

A clause which is null does not render the contract invalid in other respects, unless it is apparent that the contract may be considered only as an indivisible whole.

The same applies to a clause without effect or deemed unwritten.

1991, c. 64, s. 1438.

1439.  

A contract may not be resolved, resiliated, modified or revoked except on grounds recognized by law or by agreement of the parties.

1991, c. 64, s. 1439.

�2. � Effects of contracts with respect to third persons

I � General provisions

1440.  

A contract has effect only between the contracting parties; it does not affect third persons, except where provided by law.

1991, c. 64, s. 1440.

1441.  

Upon the death of one of the parties, the rights and obligations arising from a contract pass to his heirs, if the nature of the contract permits it.

1991, c. 64, s. 1441.

1442.  

The rights of the parties to a contract pass to their successors by particular title if they are accessory to property which passes to them or are directly related to it.

1991, c. 64, s. 1442.

II � Promise for another

1443.  

No person may bind anyone but himself and his heirs by a contract made in his own name, but he may promise in his own name that a third person will undertake to perform an obligation, and in that case he is liable to reparation for injury to the other contracting party if the third person does not undertake to perform the obligation as promised.

1991, c. 64, s. 1443.

III � Stipulation for another

1444.  

A person may make a stipulation in a contract for the benefit of a third person.

The stipulation gives the third person beneficiary the right to exact performance of the promised obligation directly from the promisor.

1991, c. 64, s. 1444.

1445.  

A third person beneficiary need not exist nor be determinate when the stipulation is made; he need only be determinable at that time and exist when the promisor is to perform the obligation for his benefit.

1991, c. 64, s. 1445.

1446.  

The stipulation may be revoked as long as the third person beneficiary has not advised the stipulator or the promisor of his will to accept it.

1991, c. 64, s. 1446.

1447.  

Only the stipulator may revoke a stipulation; neither his heirs nor his creditors may do so.

If the promisor has an interest in maintaining the stipulation, however, the stipulator may not revoke it without his consent.

1991, c. 64, s. 1447.

1448.  

Revocation of the stipulation has effect as soon as it is made known to the promisor; if it is made by will, however, it has effect upon the opening of the succession.

Where a new beneficiary is not designated, revocation benefits the stipulator or his heirs.

1991, c. 64, s. 1448.

1449.  

A third person beneficiary or his heirs may validly accept the stipulation, even after the death of the stipulator or promisor.

1991, c. 64, s. 1449.

1450.  

A promisor may set up against the third person beneficiary such defenses as he could have set up against the stipulator.

1991, c. 64, s. 1450.

IV � Simulation

1451.  

Simulation exists where the parties agree to express their true intent, not in an apparent contract, but in a secret contract, also called a counter letter.

Between the parties, a counter letter prevails over an apparent contract.

1991, c. 64, s. 1451.

1452.  

Third persons in good faith may, according to their interest, avail themselves of the apparent contract or the counter letter; however, where conflicts of interest arise between them, preference is given to the person who avails himself of the apparent contract.

1991, c. 64, s. 1452.

�3. � Special effects of certain contracts

I � Transfer of real rights

1453.  

The transfer of a real right in a certain and determinate property, or in several properties considered as a universality, vests the acquirer with the right upon the formation of the contract, even though the property is not delivered immediately and the price remains to be determined.

The transfer of a real right in a property determined only as to kind vests the acquirer with that right as soon as he is notified that the property is certain and determinate.

1991, c. 64, s. 1453.

1454.  

If a party transfers the same real right in the same movable property to different acquirers successively, the acquirer in good faith who is first given possession of the property is vested with the real right in that property, even though his title may be later in time.

1991, c. 64, s. 1454.

1455.  

The transfer of a real right in an immovable property may not be set up against third persons except in accordance with the rules concerning the publication of rights.

1991, c. 64, s. 1455.

II � Fruits and revenues and risks incident to property

1456.  

The allocation of fruits and revenues and the assumption of risks incident to property forming the object of a real right transferred by contract are principally governed by the Book on Property.

The debtor of the obligation to deliver the property continues, however, to bear the risks attached to the property until it is delivered.

1991, c. 64, s. 1456.

CHAPTER III

CIVIL LIABILITY

SECTION I

CONDITIONS OF LIABILITY

�1. � General provisions

1457.  

Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

1991, c. 64, s. 1457; 2002, c. 19, s. 15.

1458.  

Every person has a duty to honour his contractual undertakings.

Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is liable to reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them.

1991, c. 64, s. 1458.

�2. � Act or fault of another

1459.  

A person having parental authority is liable to reparation for injury caused to another by the act or fault of the minor under his authority, unless he proves that he himself did not commit any fault with regard to the custody, supervision or education of the minor.

A person deprived of parental authority is liable in the same manner, if the act or fault of the minor is related to the education he has given to him.

1991, c. 64, s. 1459.

1460.  

A person who, without having parental authority, is entrusted, by delegation or otherwise, with the custody, supervision or education of a minor is liable, in the same manner as the person having parental authority, to reparation for injury caused by the act or fault of the minor.

Where he is acting gratuitously or for reward, however, he is not liable unless it is proved that he has committed a fault.

1991, c. 64, s. 1460.

1461.  

Any person who, as tutor or curator or in any other quality, has custody of a person of full age who is not endowed with reason, is not liable to reparation for injury caused by any act of the person of full age, except where he is himself guilty of a deliberate or gross fault in exercising custody.

1991, c. 64, s. 1461.

1462.  

No person is liable for injury caused to another by an act or omission of a person not endowed with reason except in the cases where the conduct of the person not endowed with reason would otherwise have been considered wrongful.

1991, c. 64, s. 1462.

1463.  

The principal is liable to reparation for injury caused by the fault of his agents and servants in the performance of their duties; nevertheless, he retains his recourses against them.

1991, c. 64, s. 1463.

1464.  

An agent or servant of the State or of a legal person established in the public interest does not cease to act in the performance of his duties by the mere fact that he performs an act that is illegal, unauthorized or outside his competence, or by the fact that he is acting as a peace officer.

1991, c. 64, s. 1464.

�3. � Act of a thing

1465.  

A person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.

1991, c. 64, s. 1465.

1466.  

The owner of an animal is liable to reparation for injury it has caused, whether the animal was under his custody or that of a third person, or had strayed or escaped.

A person making use of the animal is, together with the owner, also liable during that time.

1991, c. 64, s. 1466.

1467.  

The owner of an immovable, without prejudice to his liability as custodian, is liable to reparation for injury caused by its ruin, even partial, where this has resulted from lack of repair or from a defect of construction.

1991, c. 64, s. 1467.

1468.  

The manufacturer of a movable property is liable to reparation for injury caused to a third person by reason of a safety defect in the thing, even if it is incorporated with or placed in an immovable for the service or operation of the immovable.

The same rule applies to a person who distributes the thing under his name or as his own and to any supplier of the thing, whether a wholesaler or a retailer and whether or not he imported the thing.

1991, c. 64, s. 1468.

1469.  

A thing has a safety defect where, having regard to all the circumstances, it does not afford the safety which a person is normally entitled to expect, particularly by reason of a defect in the design or manufacture of the thing, poor preservation or presentation of the thing, or the lack of sufficient indications as to the risks and dangers it involves or as to safety precautions.

1991, c. 64, s. 1469.

SECTION II

CERTAIN CASES OF EXEMPTION FROM LIABILITY

1470.  

A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it.

A superior force is an unforeseeable and irresistible event, including external causes with the same characteristics.

1991, c. 64, s. 1470.

1471.  

Where a person comes to the assistance of another person or, for an unselfish motive, disposes, free of charge, of property for the benefit of another person, he is exempt from all liability for injury that may result from it, unless the injury is due to his intentional or gross fault.

1991, c. 64, s. 1471.

1472.  

A person may free himself from his liability for injury caused to another as a result of the disclosure of a trade secret by proving that considerations of general interest prevailed over keeping the secret and, particularly, that its disclosure was justified for reasons of public health or safety.

1991, c. 64, s. 1472.

1473.  

The manufacturer, distributor or supplier of a movable property is not liable to reparation for injury caused by a safety defect in the property if he proves that the victim knew or could have known of the defect, or could have foreseen the injury.

Nor is he liable to reparation if he proves that, according to the state of knowledge at the time that he manufactured, distributed or supplied the property, the existence of the defect could not have been known, and that he was not neglectful of his duty to provide information when he became aware of the defect.

1991, c. 64, s. 1473; 2002, c. 19, s. 15.

1474.  

A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence.

He may not in any way exclude or limit his liability for bodily or moral injury caused to another.

1991, c. 64, s. 1474.

1475.  

A notice, whether posted or not, stipulating the exclusion or limitation of the obligation to make reparation for injury resulting from the nonperformance of a contractual obligation has effect, in respect of the creditor, only if the party who invokes the notice proves that the other party was aware of its existence at the time the contract was formed.

1991, c. 64, s. 1475.

1476.  

A person may not by way of a notice exclude or limit his obligation to make reparation in respect of third persons; such a notice may, however, constitute a warning of a danger.

1991, c. 64, s. 1476.

1477.  

The assumption of risk by the victim, although it may be considered imprudent having regard to the circumstances, does not entail renunciation of his remedy against the person who caused the injury.

1991, c. 64, s. 1477.

SECTION III

APPORTIONMENT OF LIABILITY

1478.  

Where an injury has been caused by several persons, liability is shared by them in proportion to the seriousness of the fault of each.

The victim is included in the apportionment when the injury is partly the effect of his own fault.

1991, c. 64, s. 1478.

1479.  

A person who is liable to reparation for an injury is not liable in respect of any aggravation of the injury that the victim could have avoided.

1991, c. 64, s. 1479.

1480.  

Where several persons have jointly taken part in a wrongful act which has resulted in injury or have committed separate faults each of which may have caused the injury, and where it is impossible to determine, in either case, which of them actually caused it, they are solidarily liable for reparation thereof.

1991, c. 64, s. 1480.

1481.  

Where an injury has been caused by several persons and one of them is exempted from all liability by an express provision of a special Act, the share of the liability which would have been his is assumed equally by the other persons liable for the injury.

1991, c. 64, s. 1481.

CHAPTER IV

CERTAIN OTHER SOURCES OF OBLIGATIONS

SECTION I

MANAGEMENT OF THE BUSINESS OF ANOTHER

1482.  

Management of the business of another exists where a person, the manager, spontaneously and under no obligation to act, voluntarily and opportunely undertakes to manage the business of another, the principal, without his knowledge, or with his knowledge if he was unable to appoint a mandatary or otherwise provide for it.

1991, c. 64, s. 1482.

1483.  

The manager shall as soon as possible inform the principal of the management he has undertaken.

1991, c. 64, s. 1483.

1484.  

The manager is bound to continue the management undertaken until he can withdraw without risk of loss or until the principal, or his tutor or curator, or the liquidator of the succession, as the case may be, is able to provide for it.

The manager is in all other respects of the administration subject to the general obligations of an administrator of the property of another entrusted with simple administration, so far as they are not incompatible, having regard to the circumstances.

1991, c. 64, s. 1484.

1485.  

The liquidator of the succession of the manager who is aware of the management is bound to do only what is necessary, in business already begun, to avoid loss; he shall immediately account to the principal.

1991, c. 64, s. 1485.

1486.  

When the conditions of management of the business of another are fulfilled, even if the desired result has not been attained, the principal shall reimburse the manager for all the necessary or useful expenses he has incurred and indemnify him for any injury he has suffered by reason of his management and not through his own fault.

The principal shall also fulfil any necessary or useful obligations that the manager has contracted with third persons in his name or for his benefit.

1991, c. 64, s. 1486.

1487.  

Expenses or obligations are assessed as to their necessity or usefulness at the time they were incurred or contracted by the manager.

1991, c. 64, s. 1487.

1488.  

Disbursements made by the manager in respect of an immovable belonging to the principal are treated according to the rules established for those made by a possessor in good faith.

1991, c. 64, s. 1488.

1489.  

A manager acting in his own name is bound towards third persons with whom he contracts, without prejudice to his or their remedies against the principal.

A manager acting in the name of the principal is bound towards third persons with whom he contracts only so far as the principal is not bound towards them.

1991, c. 64, s. 1489.

1490.  

Management inopportunely undertaken by a manager is binding on the principal only to the extent of his enrichment.

1991, c. 64, s. 1490.

SECTION II

RECEPTION OF A THING NOT DUE

1491.  

A person who receives a payment made in error, or merely to avoid injury to the person making it while protesting that he owes nothing, is obliged to restore it.

He is not obliged to restore it, however, where, in consequence of the payment, the claim of the person who received the undue payment in good faith is prescribed or the person has destroyed his title or relinquished a security, saving the remedy of the person having made the payment against the true debtor.

1991, c. 64, s. 1491.

1492.  

Restitution of payments not due is made according to the rules of restitution of prestations.

1991, c. 64, s. 1492.

SECTION III

UNJUST ENRICHMENT

1493.  

A person who is enriched at the expense of another shall, to the extent of his enrichment, indemnify the other for his correlative impoverishment, if there is no justification for the enrichment or the impoverishment.

1991, c. 64, s. 1493.

1494.  

Enrichment or impoverishment is justified where it results from the performance of an obligation, from the failure of the person impoverished to exercise a right of which he may avail himself or could have availed himself against the person enriched, or from an act performed by the person impoverished for his personal and exclusive interest or at his own risk and peril, or with a constant liberal intention.

1991, c. 64, s. 1494.

1495.  

An indemnity is due only if the enrichment continues to exist on the day of the demand.

Both the value of the enrichment and that of the impoverishment are assessed on the day of the demand; however, where the circumstances indicate the bad faith of the person enriched, the enrichment may be assessed at the time the person was enriched.

1991, c. 64, s. 1495.

1496.  

Where the person enriched disposes of his enrichment gratuitously, with no intention of defrauding the person impoverished, the action of the person impoverished may be taken against the third person beneficiary if the latter could have known of the impoverishment.

1991, c. 64, s. 1496.

CHAPTER V

MODALITIES OF OBLIGATIONS

SECTION I

SIMPLE MODALITIES

�1. � Conditional obligations

1497.  

An obligation is conditional where it is made to depend upon a future and uncertain event, either by suspending it until the event occurs or is certain not to occur, or by making its extinction dependent on whether or not the event occurs.

1991, c. 64, s. 1497.

1498.  

An obligation is not conditional if it or its extinction depends on an event that, unknown to the parties, had already occurred at the time that the debtor obligated himself conditionally.

1991, c. 64, s. 1498.

1499.  

A condition upon which an obligation depends is one that is possible and neither unlawful nor contrary to public order; otherwise, it is null and renders null the obligation that depends upon it.

1991, c. 64, s. 1499.

1500.  

An obligation that depends upon a condition that is at the sole discretion of the debtor is null; however, if the condition consists in doing or not doing something, the obligation is valid, even where the act is at the discretion of the debtor.

1991, c. 64, s. 1500.

1501.  

If no time has been fixed for fulfillment of a condition, the condition may be fulfilled at any time; the condition fails, however, if it becomes certain that it will not be fulfilled.

1991, c. 64, s. 1501.

1502.  

Where an obligation is dependent on the condition that an event will not occur within a given time, the condition is considered fulfilled once the time has elapsed without the event having occurred, and also when, before the time has elapsed, it becomes certain that the event will not occur.

Where no time has been fixed, the condition is not considered fulfilled until it becomes certain that the event will not occur.

1991, c. 64, s. 1502.

1503.  

A conditional obligation becomes absolute when the debtor whose obligation is subject to the condition prevents it from being fulfilled.

1991, c. 64, s. 1503.

1504.  

The creditor, pending fulfillment of the condition, may take any useful measures to preserve his rights.

1991, c. 64, s. 1504.

1505.  

The conditional nature of an obligation does not prevent it from being transferable or transmissible.

1991, c. 64, s. 1505.

1506.  

The fulfillment of a condition has a retroactive effect, between the parties and with respect to third persons, to the day on which the debtor obligated himself conditionally.

1991, c. 64, s. 1506.

1507.  

The fulfillment of a suspensive condition obliges the debtor to perform the obligation, as though it had existed from the day on which he obligated himself under that condition.

The fulfillment of a resolutory condition obliges each party to return to the other the prestations he has received pursuant to the obligation, as though the obligation had never existed.

1991, c. 64, s. 1507.

�2. � Obligations with a term

1508.  

An obligation with a suspensive term is an existing obligation that does not become exigible until the occurrence of a future and certain event.

1991, c. 64, s. 1508.

1509.  

Where the obligation does not become exigible until the expiry of a period of time but no specific date is mentioned, the first day of the period is not counted, but the day of its expiry is counted.

1991, c. 64, s. 1509.

1510.  

If an event that was considered certain does not occur, the obligation is exigible from the day on which the event normally should have occurred.

1991, c. 64, s. 1510.

1511.  

A term is for the benefit of the debtor, unless it is apparent from the law, the intent of the parties or the circumstances that it has been stipulated for the benefit of the creditor or both parties.

The party for whose exclusive benefit a term has been stipulated may renounce it, without the consent of the other party.

1991, c. 64, s. 1511.

1512.  

Where the parties have agreed to delay the determination of the term or to leave it to one of them to make such determination and where, after a reasonable time, no term has been determined, the court may, upon the application of one of the parties, fix the term according to the nature of the obligation, the situation of the parties and the circumstances.

The court may also fix the term where a term is required by the nature of the obligation and there is no agreement as to how it may be determined.

1991, c. 64, s. 1512.

1513.  

What is due with a term may not be exacted before the term expires, but anything performed freely and without error before the expiry of the term may not be recovered.

1991, c. 64, s. 1513.

1514.  

A debtor loses the benefit of the term if he becomes insolvent, is declared bankrupt, or, by his own act and without the consent of the creditor, reduces the security he has given to him.

He also loses the benefit of the term if he fails to meet the conditions in consideration of which it was granted to him.

1991, c. 64, s. 1514.

1515.  

Renunciation of the benefit of the term or forfeiture of the term renders the obligation exigible immediately.

1991, c. 64, s. 1515.

1516.  

Forfeiture of the term incurred by one of the debtors, even a solidary debtor, may not be set up against the other co-debtors.

1991, c. 64, s. 1516.

1517.  

An obligation with an extinctive term is an obligation which has a duration fixed by law or by the parties and which is extinguished by expiry of the term.

1991, c. 64, s. 1517.

SECTION II

COMPLEX MODALITIES

�1. � Obligations with multiple persons

I � Joint, divisible and indivisible obligations

1518.  

An obligation is joint between two or more debtors where they are obligated to the creditor for the same thing but in such a way that each debtor may only be compelled to perform the obligation separately and only up to his share of the debt.

An obligation is joint between two or more creditors where each creditor may only exact the performance of his share of the claim from the common debtor.

1991, c. 64, s. 1518.

1519.  

An obligation is divisible by operation of law, unless it is expressly stipulated that it is indivisible or unless the object of the obligation, owing to its nature, is not susceptible of division either materially or intellectually.

1991, c. 64, s. 1519.

1520.  

An indivisible obligation is not susceptible of division, either between the creditors or the debtors or between their heirs.

Each of the debtors or of his heirs may separately be compelled to perform the whole obligation and, conversely, each of the creditors or of his heirs may exact the performance of the whole obligation, even though the obligation is not solidary.

1991, c. 64, s. 1520.

1521.  

A stipulation of solidarity does not make an obligation indivisible.

1991, c. 64, s. 1521.

1522.  

A divisible obligation binding only one debtor and one creditor may be performed between them only as if it were indivisible, but it remains divisible between the heirs.

1991, c. 64, s. 1522.

II � Solidary obligations

1. Solidarity between debtors

1523.  

An obligation is solidary between the debtors where they are obligated to the creditor for the same thing in such a way that each of them may be compelled separately to perform the whole obligation and where performance by a single debtor releases the others towards the creditor.

1991, c. 64, s. 1523.

1524.  

An obligation may be solidary even though one of the co-debtors is obliged differently from the others to perform the same thing, such as where one is conditionally bound while the obligation of the other is not conditional, or where one is allowed a term which is not granted to the other.

1991, c. 64, s. 1524.

1525.  

Solidarity between debtors is not presumed; it exists only where it is expressly stipulated by the parties or imposed by law.

Solidarity between debtors is presumed, however, where an obligation is contracted for the service or carrying on of an enterprise.

The carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property, or providing a service, constitutes the carrying on of an enterprise.

1991, c. 64, s. 1525.

1526.  

The obligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation is extra-contractual.

1991, c. 64, s. 1526.

1527.  

Where specific performance of an obligation has become impossible through the fault of one or more of the solidary debtors, or after he or they have been put in default, the other co-debtors are not released from their obligation to make an equivalent payment to the creditor, but they are not liable for additional damages which may be owed to him.

The creditor may not claim additional damages except from those co-debtors through whose fault the obligation became impossible to perform, and from those who were then in default.

1991, c. 64, s. 1527.

1528.  

The creditor of a solidary obligation may apply for payment to any one of the co-debtors at his option, without such debtor having a right to plead the benefit of division.

1991, c. 64, s. 1528.

1529.  

Proceedings instituted against one of the solidary debtors do not deprive the creditor of his remedy against the others, but the debtor sued may implead the other solidary debtors.

1991, c. 64, s. 1529.

1530.  

A solidary debtor who is sued by his creditor may set up all the defenses against him that are personal to him or that are common to all the co-debtors, but he may not set up defenses that are purely personal to one or several of the other co-debtors.

1991, c. 64, s. 1530.

1531.  

Where, through the act of the creditor, a solidary debtor is deprived of a security or of a right which he could have set up by subrogation, he is released to the extent of the value of the security or right of which he is deprived.

1991, c. 64, s. 1531.

1532.  

A creditor who renounces solidarity in favour of one of the debtors retains his solidary remedy against the other debtors for the whole debt.

1991, c. 64, s. 1532.

1533.  

A creditor who receives separately and without reserve the share of one of the solidary debtors and specifies in the acquittance that it applies to that share renounces solidarity in favour of that debtor alone.

1991, c. 64, s. 1533.

1534.  

Where a creditor receives separately and without reserve the share of one of the debtors in the periodic payments or interest on the debt and specifies in the acquittance that it applies to his share, he loses his solidary remedy against that debtor for the periodic payments or interest due, but not for any that may become due in the future, nor for the capital, unless separate payment is continued for three consecutive years.

1991, c. 64, s. 1534.

1535.  

A creditor who sues a solidary debtor for his share loses his solidary remedy against him if the debtor acquiesces in the demand or is condemned by judgment.

1991, c. 64, s. 1535.

1536.  

A solidary debtor who has performed the obligation may not recover from his co-debtors more than their respective shares, although he is subrogated to the rights of the creditor.

1991, c. 64, s. 1536.

1537.  

Contribution to the payment of a solidary obligation is made by equal shares among the solidary debtors, unless their interests in the debt, including their shares of the obligation to make reparation for injury caused to another, are unequal, in which case their contributions are proportional to the interest of each in the debt.

However, if the obligation was contracted in the exclusive interest of one of the debtors or if it is due to the fault of one co-debtor alone, he is liable for the whole debt to the other co-debtors, who are then considered, in his regard, as his sureties.

1991, c. 64, s. 1537.

1538.  

A loss arising from the insolvency of a solidary debtor is equally divided between the other co-debtors, unless their interests in the debt are unequal.

A creditor who has renounced solidarity in favour of one debtor, however, bears the share of that debtor in the contribution.

1991, c. 64, s. 1538.

1539.  

A solidary debtor sued for reimbursement by the co-debtor who has performed the obligation may raise any common defenses that have not been set up by the co-debtor against the creditor. He may also set up defenses which are personal to himself, but not those which are purely personal to one or several of the other co-debtors.

1991, c. 64, s. 1539.

1540.  

The obligation of a solidary debtor is divided by operation of law between his heirs, except where it is indivisible.

1991, c. 64, s. 1540.

2. Solidarity between creditors

1541.  

Solidarity between creditors exists only where it has been expressly stipulated.

It entitles each of them to exact the whole performance of the obligation from the debtor and to give a full acquittance for it.

1991, c. 64, s. 1541.

1542.  

Performance of an obligation in favour of one of the solidary creditors releases the debtor towards the other creditors.

1991, c. 64, s. 1542.

1543.  

A debtor has the option of performing the obligation in favour of any of the solidary creditors, provided he has not been sued by any of them.

A release from the obligation granted by one of the solidary creditors releases the debtor, but only for the portion of that creditor. The same rule applies to all cases in which the obligation is extinguished otherwise than by payment thereof.

1991, c. 64, s. 1543.

1544.  

An obligation for the benefit of a solidary creditor is divided by operation of law between his heirs.

1991, c. 64, s. 1544.

�2. � Obligations with multiple objects

I � Alternative obligations

1545.  

An alternative obligation is one which has two principal prestations as its object, the performance of either of which releases the debtor for the whole.

An obligation is not considered to be alternative if, when it arose, one of the prestations could not be the object of the obligation.

1991, c. 64, s. 1545.

1546.  

The choice of the prestation belongs to the debtor, unless it has been expressly granted to the creditor.

Where, after being put in default, the party who has the choice of the prestation fails to exercise it within the time allotted to him to do so, the choice of the prestation passes to the other party.

1991, c. 64, s. 1546.

1547.  

A debtor may neither perform nor be compelled to perform part of one prestation and part of the other.

1991, c. 64, s. 1547.

1548.  

Where the debtor has the option and one of the prestations becomes impossible to perform, even through his own fault, he shall perform the one that remains.

If, in the same case, both prestations become impossible to perform and the impossibility of performing either of them is due to the fault of the debtor, he is liable to the creditor to the extent of the value of the last prestation remaining.

1991, c. 64, s. 1548.

1549.  

Where the creditor has the option, he shall, if one of the prestations becomes impossible to perform, accept the remaining prestation unless the impossibility of performing it is due to the fault of the debtor, in which case the creditor has the right to exact specific performance of the remaining prestation or reparation, by equivalence, for the injury resulting from the nonperformance of the prestation that has become impossible.

If, in the same case, the prestations become impossible to perform and the impossibility of performing them is due to the fault of the debtor, the creditor may exact reparation, by equivalence, for the injury resulting from the nonperformance of one or another of the prestations.

1991, c. 64, s. 1549.

1550.  

Where all the prestations become impossible to perform through no fault of the debtor, the obligation is extinguished.

1991, c. 64, s. 1550.

1551.  

The obligation is an alternative obligation even where it has more than two principal prestations as its object, and the rules of this subdivision apply, adapted as required, to all such obligations.

1991, c. 64, s. 1551.

II � Facultative obligations

1552.  

A facultative obligation is an obligation which has only one principal prestation as its object but from which the debtor may release himself by performing another prestation.

The debtor is released if the principal prestation, through no fault on his part, becomes impossible to perform.

1991, c. 64, s. 1552.

CHAPTER VI

PERFORMANCE OF OBLIGATIONS

SECTION I

PAYMENT

�1. � Payment in general

1553.  

Payment means not only the turning over of a sum of money in satisfaction of an obligation, but also the actual performance of whatever forms the object of the obligation.

1991, c. 64, s. 1553.

1554.  

Every payment presupposes an obligation; what has been paid where there is no obligation may be recovered.

Recovery is not admitted, however, in the case of natural obligations that have been voluntarily paid.

1991, c. 64, s. 1554.

1555.  

Payment may be made by any person, even if he is a third person with respect to the obligation; the creditor may be put in default by the offer of a third person to perform the obligation in the name of the debtor, provided the offer is made for the benefit of the debtor and not merely to change creditors.

A creditor may not be compelled to take payment from a third person, however, if he has an interest in having the obligation performed by the debtor personally.

1991, c. 64, s. 1555.

1556.  

A valid payment may only be made by a person having a right in the thing due which entitles him to give it in payment.

However, payment of a sum of money or of any other thing due that is consumed by use may not be recovered against a creditor who has used it in good faith, even though it was made by a person who was not authorized to make it.

1991, c. 64, s. 1556.

1557.  

Payment shall be made to the creditor or to the person authorized to receive it for him.

Payment made to a third person is valid if the creditor ratifies it; if it is not ratified, the payment is valid only to the extent that it benefits the creditor.

1991, c. 64, s. 1557.

1558.  

Payment made to a creditor without capacity to receive it is valid only to the extent of the benefit he derives from it.

1991, c. 64, s. 1558.

1559.  

Payment made in good faith to the apparent creditor is valid, even though it is subsequently established that he is not the rightful creditor.

1991, c. 64, s. 1559.

1560.  

Payment made by a debtor to his creditor to the detriment of a seizing creditor is not valid against the seizing creditor who, according to his rights, may compel the debtor to pay again; in that case, the debtor has a remedy against the creditor so paid.

1991, c. 64, s. 1560.

1561.  

A creditor may not be compelled to accept anything other than what is due to him, even though the thing offered is of greater value.

Nor may he be compelled to accept partial payment of an obligation unless the obligation is disputed in part. In that case, if the debtor offers to pay the undisputed part, the creditor may not refuse to accept payment of it, but he preserves his right to claim the other part of the obligation.

1991, c. 64, s. 1561.

1562.  

A debtor of a certain and determinate thing is released by the handing over of the thing in its actual condition at the time of payment, provided that the deterioration it has suffered is not due to his act or fault and did not occur after he was in default.

1991, c. 64, s. 1562.

1563.  

Where the thing is determinate as to its kind only, the debtor need not give one of the best quality, but he may not offer one of the worst quality.

1991, c. 64, s. 1563.

1564.  

Where the debt consists of a sum of money, the debtor is released by paying the nominal amount due in money which is legal tender at the time of payment.

He is also released by remitting the amount due by money order, by cheque made to the order of the creditor and certified by a financial institution carrying on business in Québec, or by any other instrument of payment offering the same guarantees to the creditor, or, if the creditor is in a position to accept it, by means of a credit card or a transfer of funds to an account of the creditor in a financial institution.

1991, c. 64, s. 1564.

1565.  

Interest is paid at the agreed rate or, if none, at the legal rate.

1991, c. 64, s. 1565.

1566.  

Payment is made at the place expressly or impliedly indicated by the parties.

If no place is indicated by the parties, payment is made at the domicile of the debtor, unless what is due is a certain and determinate thing, in which case payment is made at the place where the property was when the obligation arose.

1991, c. 64, s. 1566.

1567.  

The expenses attending payment are borne by the debtor.

1991, c. 64, s. 1567.

1568.  

A debtor who pays his debt is entitled to an acquittance and to the turning over of the original title of the obligation.

1991, c. 64, s. 1568.

�2. � Imputation of payment

1569.  

When making payment, a debtor who owes several debts has the right to impute payment to the debt he intends to pay.

He may not, however, without the consent of the creditor, impute payment to a debt not yet due in preference to a debt which has become due, unless it was agreed that payment may be made by anticipation.

1991, c. 64, s. 1569.

1570.  

A debtor who owes a debt that bears interest or yields periodic payments may not, without the consent of the creditor, impute a payment to the capital in preference to the interest or periodic payments.

Any partial payment made on the principal and interest is imputed first to the interest.

1991, c. 64, s. 1570.

1571.  

Where a debtor who owes several debts has accepted an acquittance by which the creditor, at the time of payment, imputed payment to one specific debt, he may not subsequently require that it be imputed to a different debt, except upon grounds for which contracts may be annulled.

1991, c. 64, s. 1571.

1572.  

In the absence of imputation by the parties, payment is imputed first to the debt that is due.

Where several debts are due, payment is imputed to the debt which the debtor has the greatest interest in paying.

Where the debtor has the same interest in paying several debts, payment is imputed to the debt that became due first; if all of the debts became due at the same time, however, payment is imputed proportionately.

1991, c. 64, s. 1572.

�3. � Tender and deposit

1573.  

Where a creditor refuses or neglects to accept payment, the debtor may make a tender.

A tender consists in placing the thing which is due at the disposal of the creditor at the place and time that payment is due. In addition to the thing due, with the interest and periodic payments it has yielded, a reasonable amount to cover unliquidated expenses owed by the debtor shall be included, saving the right to make up any deficiency in that amount.

1991, c. 64, s. 1573.

1574.  

Where the object tendered is a sum of money, it may be tendered in currency which is legal tender at the time of payment or by cheque made to the order of the creditor and certified by a financial institution carrying on business in Québec.

Tender may also be made by way of an irrevocable and unconditional undertaking, for an indefinite term, by a financial institution carrying on business in Québec, to pay to the creditor the amount tendered if the creditor accepts the tender or if the court declares it valid.

1991, c. 64, s. 1574.

1575.  

Tender may be made by notarial act en minute or by a judicial declaration which is recorded; it may also be made by any other writing or in any other manner, provided it is legally proved.

Where tender is made by notarial act, the notary records the answer of the creditor in the act and, in case of refusal, the reasons given by him.

1991, c. 64, s. 1575; 1992, c. 57, s. 716.

1576.  

The tender of a sum of money or securities made by a judicial declaration which is recorded shall be completed by deposit of the sum or the securities, according to the rules of the Code of Civil Procedure.

1991, c. 64, s. 1576.

1577.  

Where payment or delivery of the thing is to be made at the domicile of the debtor or at the place where the thing is located, a written notice given to the creditor by the debtor that he is ready to perform the obligation there has the same effect as a tender.

Where payment or delivery of the thing need not be so made and it is difficult to transport the thing to the place where it is to be made, the debtor may, in writing, require the creditor to advise him of his willingness to accept the thing, if he has reason to believe that the creditor will refuse it; if the creditor fails to advise the debtor of his willingness in due time, the debtor need not transport the thing to the place where it is to be paid or delivered and his notice to the creditor has the same effect as a tender.

1991, c. 64, s. 1577; 2002, c. 19, s. 15.

1578.  

Where the thing which is due is a sum of money or securities, a written notice given by the debtor to the creditor that the sum of money or the securities are deposited has the same effect as a tender.

1991, c. 64, s. 1578.

1579.  

In every tender, or notice having the same effect, the nature of the debt, the title under which it was created and the name of the creditor or the persons to whom payment is to be made shall be indicated; in addition, a description of the thing tendered shall be included with, in the case of a sum of money in cash, an enumeration of each denomination.

1991, c. 64, s. 1579.

1580.  

A creditor is in default by operation of law where, without justification, he refuses a valid tender or refuses to act on the notice having the same effect, or where he clearly expresses his intention to refuse any tender that the debtor might wish to make; in this last case, the debtor need not make any tender or give any notice having the same effect.

A creditor is also in default by operation of law where the debtor, despite his diligence, cannot find him.

1991, c. 64, s. 1580.

1581.  

Where the creditor is in default, the debtor may take any measures necessary or useful for the preservation of the thing which he owes and, in particular, entrust it to a third person for storage or custody.

In the same case, if the thing is highly perishable, subject to rapid depreciation or expensive to preserve, the debtor may sell it and deposit the proceeds.

1991, c. 64, s. 1581.

1582.  

A creditor who is in default bears the reasonable costs of preservation of the thing, as well as any costs that may be incurred for the sale of the thing and the deposit of the proceeds.

He also bears the risks of loss of the thing by superior force.

1991, c. 64, s. 1582.

1583.  

Deposit by the debtor of the sum of money or the securities which he owes is made in the general deposit office or any trust company or, during judicial proceedings, according to the rules of the Code of Civil Procedure.

Deposit may be made not only where the creditor refuses to accept the money or securities owed by the debtor, but also, among other cases, where the claim is in dispute between several persons or where the debtor is prevented from making payment by reason of the fact that the creditor cannot be found at the place where the payment is to be made.

1991, c. 64, s. 1583.

1584.  

A debtor may withdraw a sum of money or securities which he has deposited, so long as they have not been accepted by the creditor; if he withdraws them, neither his co-debtors nor his sureties are released.

No withdrawal may be made during judicial proceedings, however, except by authorization of the court.

1991, c. 64, s. 1584.

1585.  

Where the deposit of a sum of money or of securities is declared valid by the court, the debtor may not withdraw them except with the consent of the creditor.

The withdrawal may not be made, however, if it would impair the rights of third persons or prevent the release of the co-debtors or the sureties of the debtor.

1991, c. 64, s. 1585.

1586.  

A deposit made according to the conditions set forth in the preceding articles releases the debtor, for the future, from the payment of interest or income yielded.

1991, c. 64, s. 1586.

1587.  

Interest or income yielded from the date of deposit belongs to the creditor. Nevertheless, where the deposit is made to obtain the performance of an obligation of the creditor that is correlative to the obligation the debtor intends to perform by the deposit, the interest or income belongs to the debtor until the deposit is accepted by the creditor.

1991, c. 64, s. 1587.

1588.  

A tender accepted by the creditor or declared valid by the court is equivalent, in respect of the debtor, to payment made on the day of the tender or of the notice having the same effect, provided the debtor has always been willing to pay from that time.

1991, c. 64, s. 1588.

1589.  

Where tender and deposit are accepted or declared valid by the court, the expenses related to them are borne by the creditor.

1991, c. 64, s. 1589.

SECTION II

RIGHT TO ENFORCE PERFORMANCE

�1. � General provision

1590.  

An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and without delay.

Where the debtor fails to perform his obligation without justification on his part and he is in default, the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence,

(1)   force specific performance of the obligation;

(2)   obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or the reduction of his own correlative obligation;

(3)   take any other measure provided by law to enforce his right to the performance of the obligation.

1991, c. 64, s. 1590.

�2. � Exception for nonperformance and right of retention

1591.  

Where the obligations arising from a synallagmatic contract are exigible and one of the parties fails to perform his obligation to a substantial degree or does not offer to perform it, the other party may refuse to perform his correlative obligation to a corresponding degree, unless he is bound by law, the will of the parties or usage to perform first.

1991, c. 64, s. 1591.

1592.  

A party who, with the consent of the other party, has detention of property belonging to the latter has a right to retain it pending full payment of his claim against him, if the claim is exigible and is directly related to the property of which he has detention.

1991, c. 64, s. 1592.

1593.  

The right of retention may be set up against anyone.

Involuntary dispossession does not extinguish a right of retention; the party exercising the right may revendicate the property, subject to the rules on prescription.

1991, c. 64, s. 1593.

�3. � Default

1594.  

A debtor may be in default by the terms of the contract itself, when it contains a stipulation that the mere lapse of time for performing it will have that effect.

A debtor may also be put in default by an extrajudicial demand addressed to him by his creditor to perform the obligation, a judicial demand filed against him or the sole operation of law.

1991, c. 64, s. 1594.

1595.  

The extrajudicial demand by which a creditor puts his debtor in default shall be made in writing.

If the demand does not allow the debtor sufficient time for performance, having regard to the nature of the obligation and the circumstances, the debtor may perform the obligation within a reasonable time after the demand.

1991, c. 64, s. 1595.

1596.  

Where a creditor files a judicial demand against the debtor without his otherwise being in default, the debtor is entitled to perform the obligation within a reasonable time after the demand. If the obligation is performed within a reasonable time, the costs of the demand are borne by the creditor.

1991, c. 64, s. 1596.

1597.  

A debtor is in default by the sole operation of law where the performance of the obligation would have been useful only within a certain time which he allowed to expire or where he failed to perform the obligation immediately despite the urgency that he do so.

A debtor is also in default by operation of law where he has violated an obligation not to do, or where specific performance of the obligation has become impossible through his fault, and also where he has made clear to the creditor his intention not to perform the obligation or where, in the case of an obligation of successive performance, he has repeatedly refused or neglected to perform it.

1991, c. 64, s. 1597.

1598.  

The creditor shall prove the occurrence of one of the cases of default by operation of law notwithstanding any statement or stipulation to the contrary.

1991, c. 64, s. 1598.

1599.  

An extrajudicial demand by which the creditor puts one of the solidary debtors in default has effect with respect to the other debtors.

Similarly, an extrajudicial demand made by one of the solidary creditors has effect with respect to the other creditors.

1991, c. 64, s. 1599.

1600.  

Where the object of the performance is a sum of money, the debtor, although he may be granted a period of grace, is liable for injury resulting from delay in the performance of the obligation from the moment he begins to be in default.

The debtor in such a case is also liable from the same moment for any loss resulting from superior force, unless he is released thereby from his obligation.

1991, c. 64, s. 1600.

�4. � Specific performance

1601.  

A creditor may, in cases which admit of it, demand that the debtor be forced to make specific performance of the obligation.

1991, c. 64, s. 1601.

1602.  

In case of default, the creditor may perform the obligation or cause it to be performed at the expense of the debtor.

A creditor wishing to avail himself of this right shall so notify the debtor in the judicial or extrajudicial demand by which he puts him in default, except in cases where the debtor is in default by operation of law or by the terms of the contract itself.

1991, c. 64, s. 1602.

1603.  

The creditor may be authorized to destroy or remove, at the expense of the debtor, what has been made by the debtor in violation of an obligation not to do.

1991, c. 64, s. 1603.

�5. � Resolution or resiliation of contracts and reduction of obligations

1604.  

Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance.

However and notwithstanding any stipulation to the contrary, he is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation.

All the relevant circumstances are taken into consideration in assessing the proportional reduction of the correlative obligation. If the obligation cannot be reduced, the creditor is entitled to damages only.

1991, c. 64, s. 1604.

1605.  

A contract may be resolved or resiliated without judicial proceedings where the debtor is in default by operation of law or where he has failed to perform his obligation within the time allowed in the writing putting him in default.

1991, c. 64, s. 1605.

1606.  

A contract which is resolved is deemed never to have existed; each party is, in such a case, bound to restore to the other the prestations he has already received.

A contract which is resiliated ceases to exist, but only for the future.

1991, c. 64, s. 1606.

�6. � Performance by equivalence

I � General provisions

1607.  

The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor�s default.

1991, c. 64, s. 1607.

1608.  

The obligation of the debtor to pay damages to the creditor is neither reduced nor altered by the fact that the creditor receives a prestation from a third person, as a result of the injury he has sustained, except so far as the third person is subrogated to the rights of the creditor.

1991, c. 64, s. 1608.

1609.  

An acquittance, transaction or statement obtained from the creditor in connection with bodily or moral injury he has sustained, obtained by the debtor, an insurer or their representatives within thirty days of the act which caused the injury, is without effect if it is damaging to the creditor.

1991, c. 64, s. 1609.

1610.  

The right of a creditor to damages, including punitive damages, may be assigned or transmitted.

This rule does not apply where the right of the creditor results from a breach of a personality right; in such a case, the right of the creditor to damages may not be assigned, and may be transmitted only to his heirs.

1991, c. 64, s. 1610.

II � Assessment of damages

1. Assessment in general

1611.  

The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived.

Future injury which is certain and able to be assessed is taken into account in awarding damages.

1991, c. 64, s. 1611.

1612.  

The loss sustained by the owner of a trade secret includes the investment expenses incurred for its acquisition, perfection and use; the profit of which he is deprived may be compensated for through payment of royalties.

1991, c. 64, s. 1612; 2002, c. 19, s. 15.

1613.  

In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the nonperformance.

1991, c. 64, s. 1613.

1614.  

Damages owed to the creditor for bodily injury he sustains are measured as to the future aspects of the injury according to the discount rates set by regulation of the Government, from the time such rates are set.

1991, c. 64, s. 1614.

1615.  

The court, in awarding damages for bodily injury, may, for a period of not over three years, reserve the right of the creditor to apply for additional damages, if the course of his physical condition cannot be determined with sufficient precision at the time of the judgment.

1991, c. 64, s. 1615.

1616.  

Damages awarded for injury are exigible in the form of capital payable in cash, unless otherwise agreed by the parties.

Where the injury sustained is bodily injury and where the creditor is a minor, however, the court may order payment, in whole or in part, in the form of an annuity or by periodic instalments, on the terms and conditions it fixes and indexed according to a fixed rate. Within three months of the date on which the minor becomes of full age, the creditor may demand immediate and discounted payment of any amount still receivable.

1991, c. 64, s. 1616.

1617.  

Damages which result from delay in the performance of an obligation to pay a sum of money consist of interest at the agreed rate or, in the absence of any agreement, at the legal rate.

The creditor is entitled to the damages from the date of default without having to prove that he has sustained any injury.

A creditor may stipulate, however, that he will be entitled to additional damages, provided he justifies them.

1991, c. 64, s. 1617.

1618.  

Damages other than those resulting from delay in the performance of an obligation to pay a sum of money bear interest at the rate agreed by the parties, or, in the absence of agreement, at the legal rate, from the date of default or from any other later date which the court considers appropriate, having regard to the nature of the injury and the circumstances.

1991, c. 64, s. 1618.

1619.  

An indemnity may be added to the amount of damages awarded for any reason, which is fixed by applying to the amount of the damages, from either of the dates used in computing the interest on them, a percentage equal to the excess of the rate of interest fixed for claims of the State under section 28 of the Act respecting the Ministère du Revenu over the rate of interest agreed by the parties or, in the absence of agreement, over the legal rate.

1991, c. 64, s. 1619.

1620.  

Interest accrued on principal does not itself bear interest except where that is provided by agreement or by law or where additional interest is expressly demanded in a suit.

1991, c. 64, s. 1620.

1621.  

Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.

Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor�s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the damages is wholly or partly assumed by a third person.

1991, c. 64, s. 1621.

2. Anticipated assessment of damages

1622.  

A penal clause is one by which the parties assess the anticipated damages by stipulating that the debtor will suffer a penalty if he fails to perform his obligation.

A creditor has the right to avail himself of a penal clause instead of enforcing, in cases which admit of it, the specific performance of the obligation; but in no case may he exact both the performance and the penalty, unless the penalty has been stipulated for mere delay in the performance of the obligation.

1991, c. 64, s. 1622.

1623.  

A creditor who avails himself of a penal clause is entitled to the amount of the stipulated penalty without having to prove the injury he has suffered.

However, the amount of the stipulated penalty may be reduced if the creditor has benefited from partial performance of the obligation or if the clause is abusive.

1991, c. 64, s. 1623.

1624.  

Where an obligation with a penal clause is indivisible without being solidary and its nonperformance is due to the act or omission of only one of the co-debtors, the penalty may be exacted in full against him or against each of the co-debtors for his share, but, in the latter case, without prejudice to their remedy against the co-debtor who caused the penalty to be incurred.

1991, c. 64, s. 1624; 2002, c. 19, s. 15.

1625.  

Where an obligation with a penal clause is divisible, the penalty also is divisible and is incurred only by that debtor who fails to perform the obligation, and only for that part for which he is liable, without there being any action against those who have performed it.

This rule does not apply where the obligation is solidary, nor where the penal clause was stipulated to prevent partial payment and one of the co-debtors has prevented the performance of the obligation for the whole; in this case, that co-debtor is liable for the whole penalty and the others are liable for their respective shares only, without prejudice to their remedy against him.

1991, c. 64, s. 1625.

SECTION III

PROTECTION OF THE RIGHT TO PERFORMANCE OF OBLIGATIONS

�1. � Conservatory measures

1626.  

A creditor may take all necessary or useful measures to preserve his rights.

1991, c. 64, s. 1626.

�2. � Oblique action

1627.  

A creditor whose claim is certain, liquid and exigible may exercise the rights and actions belonging to the debtor, in the debtor�s name, where the debtor refuses or neglects to exercise them to the prejudice of the creditor.

However, he may not exercise rights and actions which are strictly personal to the debtor.

1991, c. 64, s. 1627.

1628.  

It is not necessary for the claim to be liquid and exigible at the time the action is instituted, but it is necessary that it be so at the time judgment is rendered.

1991, c. 64, s. 1628.

1629.  

The person against whom an oblique action is brought may set up against the creditor all the defenses he could have set up against his own creditor.

1991, c. 64, s. 1629.

1630.  

Property recovered by a creditor in the name of the debtor falls into the patrimony of the debtor and benefits all his creditors.

1991, c. 64, s. 1630.

�3. � Paulian action

1631.  

A creditor who suffers prejudice through a juridical act made by his debtor in fraud of his rights, in particular an act by which he renders or seeks to render himself insolvent, or by which, being insolvent, he grants preference to another creditor may obtain a declaration that the act may not be set up against him.

1991, c. 64, s. 1631.

1632.  

An onerous contract or a payment made for the performance of such a contract is deemed to be made with fraudulent intent if the contracting party or the creditor knew the debtor to be insolvent or knew that the debtor, by the juridical act, was rendering himself or was seeking to render himself insolvent.

1991, c. 64, s. 1632.

1633.  

A gratuitous contract or a payment made for the performance of such a contract is deemed to be made with fraudulent intent, even if the contracting party or the creditor was unaware of the facts, where the debtor is or becomes insolvent at the time the contract is formed or the payment is made.

1991, c. 64, s. 1633.

1634.  

The creditor may bring a claim only if it is certain at the time the action is instituted, and if it is liquid and exigible at the time the judgment is rendered.

He may bring the claim only if it existed prior to the juridical act which is attacked, unless that act was made for the purpose of defrauding a later ranking creditor.

1991, c. 64, s. 1634.

1635.  

The action is forfeited unless it is brought within one year from the day on which the creditor learned of the injury resulting from the act which is attacked, or, where the action is brought by a trustee in bankruptcy on behalf of all the creditors, from the date of appointment of the trustee.

1991, c. 64, s. 1635.

1636.  

Where it is declared that a juridical act may not be set up against the creditor, it may not be set up against any other creditors who were entitled to institute the action and who intervened in it to protect their rights; all may have the property forming the object of the contract or payment seized and sold and be paid according to their claims, subject to the rights of prior or hypothecary creditors.

1991, c. 64, s. 1636.

CHAPTER VII

TRANSFER AND ALTERATION OF OBLIGATIONS

SECTION I

ASSIGNMENT OF CLAIMS

�1. � Assignment of claims in general

1637.  

A creditor may assign to a third person all or part of a claim or a right of action which he has against his debtor.

He may not, however, make an assignment that is injurious to the rights of the debtor or that renders his obligation more onerous.

1991, c. 64, s. 1637.

1638.  

The assignment of a claim includes its accessories.

1991, c. 64, s. 1638.

1639.  

Where the assignment is by onerous title, the assignor guarantees that the claim exists and is owed to him, even if the assignment is made without warranty, unless the assignee has acquired it at his own risk or knew of the uncertain nature of the claim at the time of the assignment.

1991, c. 64, s. 1639.

1640.  

Where the assignor by onerous title guarantees the solvency of the debtor by a simple clause of warranty, he is liable for the solvency only at the time of the assignment and to the extent of the price he received.

1991, c. 64, s. 1640.

1641.  

An assignment may be set up against the debtor and the third person as soon as the debtor has acquiesced in it or received a copy or a pertinent extract of the deed of assignment or any other evidence of the assignment which may be set up against the assignor.

Where the debtor cannot be found in Québec, the assignment may be set up upon publication of a notice of assignment in a newspaper distributed in the locality of the last known address of the debtor or, if he carries on an enterprise, in the locality where its principal establishment is situated.

1991, c. 64, s. 1641; 1992, c. 57, s. 716.

1642.  

The assignment of a universality of claims, present or future, may be set up against debtors and third persons by the registration of the assignment in the register of personal and movable real rights, provided, however, that the other formalities whereby the assignment may be set up against the debtors who have not acquiesced in it have been accomplished.

1991, c. 64, s. 1642.

1643.  

A debtor may set up against the assignee any payment made to the assignor before the assignment could be set up against him, as well as any other cause of extinction of the obligation that occurred before that time.

A debtor may also set up any payment made in good faith by himself or his surety to an apparent creditor, even if the required formalities whereby the assignment may be set up against the debtor and third persons have been accomplished.

1991, c. 64, s. 1643.

1644.  

Where a copy or an extract of the deed of assignment or any other evidence of the assignment which may be set up against an assignor is handed over to the debtor at the time of service of an action brought against the debtor, no legal costs may be exacted from the debtor if he pays within the time fixed for appearance, unless he is already in default.

1991, c. 64, s. 1644; 1992, c. 57, s. 716.

1645.  

The assignment may not be set up against the surety unless the prescribed formalities for the setting up of assignment against the debtor have been accomplished in respect of the surety himself.

1991, c. 64, s. 1645.

1646.  

The assignees of the same claim, and the assignor in respect of any remainder due to him, are paid in proportion to the value of their claims.

However, persons having obtained an assignment with a guarantee of payment are paid in preference to all other assignees and to the assignor, and, among themselves, in the order of the dates on which their respective assignments could be set up against the debtor.

1991, c. 64, s. 1646.

�2. � Assignment of claims attested by bearer instrument

1647.  

It is of the essence of a claim attested by a bearer instrument issued by a debtor that it may be assigned by mere delivery, to another bearer, of the instrument attesting it.

1991, c. 64, s. 1647.

1648.  

A debtor who has issued a bearer instrument is bound to pay the debt attested thereby to any bearer who hands over the instrument to him, except where he has received notice of a judgment ordering him to withhold payment thereof.

He may not set up any defenses against the bearer other than defenses respecting the nullity or a defect of title, those founded on an express stipulation in the instrument or such defenses as he may raise against the bearer personally.

1991, c. 64, s. 1648.

1649.  

A debtor who has issued a bearer instrument remains bound towards every bearer in good faith, even if the debtor shows that the instrument was negotiated against his will.

1991, c. 64, s. 1649.

1650.  

A person who has been unlawfully dispossessed of a bearer instrument may not prevent the debtor from paying the claim to the person who presents the instrument except on notification of an order of the court.

1991, c. 64, s. 1650.

SECTION II

SUBROGATION

1651.  

A person who pays in the place of a debtor may be subrogated to the rights of the creditor.

He does not have more rights than the subrogating creditor.

1991, c. 64, s. 1651.

1652.  

Subrogation may be conventional or legal.

1991, c. 64, s. 1652.

1653.  

Conventional subrogation may be made by the creditor or the debtor, but it shall be made expressly and in writing.

1991, c. 64, s. 1653.

1654.  

Subrogation may be made by the creditor only at the same time as he receives payment. It takes effect without the consent of the debtor, notwithstanding any stipulation to the contrary.

1991, c. 64, s. 1654.

1655.  

Subrogation may not be made by a debtor in favour of anyone except his lender and it takes effect without the consent of the creditor.

In order for subrogation to be valid in this case, the loan instrument and the acquittance shall each be made in the form of a notarial act en minute or by a private writing drawn up before two witnesses who sign it. In addition, a statement shall be made in the loan instrument that the loan is granted for the purpose of paying the debt, and, in the acquittance, that the debt is paid out of the loan.

1991, c. 64, s. 1655.

1656.  

Subrogation takes place by operation of law

(1)   in favour of a creditor who pays another creditor whose claim is preferred to his because of a prior claim or a hypothec;

(2)   in favour of the acquirer of a property who pays a creditor whose claim is secured by a hypothec on the property;

(3)   in favour of a person who pays a debt to which he is bound with others or for others and which he has an interest in paying;

(4)   in favour of an heir who pays with his own funds a debt of the succession for which he was not bound;

(5)   in any other case provided by law.

1991, c. 64, s. 1656.

1657.  

Subrogation has effect against the principal debtor and his warrantors, who may set up against the person subrogated the defenses they had against the original creditor.

1991, c. 64, s. 1657.

1658.  

A creditor who has been only partly paid may exercise his rights in respect of the balance of his claim in preference to the person subrogated from whom he has received only part of his claim.

However, if the creditor has obligated himself to the person subrogated to guarantee payment of the amount for which the subrogation is acquired, the person subrogated has the preference.

1991, c. 64, s. 1658.

1659.  

Except where there is agreement to the contrary, persons who are subrogated to the rights of the same creditor are paid in proportion to the value of their share in the payment in subrogation.

1991, c. 64, s. 1659.

SECTION III

NOVATION

1660.  

Novation is effected where the debtor contracts towards his creditor a new debt which is substituted for the existing debt, which is extinguished, or where a new debtor is substituted for the former debtor, who is discharged by the creditor; in such a case, novation may be effected without the consent of the former debtor.

Novation is also effected where, by the effect of a new contract, a new creditor is substituted for the former creditor, towards whom the debtor is discharged.

1991, c. 64, s. 1660.

1661.  

Novation is not presumed; it is effected only where the intention to effect it is evident.

1991, c. 64, s. 1661.

1662.  

Hypothecs attached to the existing claim are not transferred to the claim substituted for it, unless they are expressly reserved by the creditor.

1991, c. 64, s. 1662.

1663.  

Where novation is effected by substitution of a new debtor, the new debtor may not set up against the creditor the defenses which he could have raised against the former debtor, nor the defenses which the former debtor had against the creditor, unless, in the latter case, he may invoke the nullity of the act that bound them.

Furthermore, hypothecs attached to the existing claim may not be transferred to the property of the new debtor; nor may they be reserved upon the property of the former debtor without his consent. However, they may be transferred to property acquired from the former debtor by the new debtor, if the new debtor consents thereto.

1991, c. 64, s. 1663.

1664.  

Where novation is effected between the creditor and one of the solidary debtors, hypothecs attached to the existing claim may only be reserved upon the property of the co-debtor who contracts the new debt.

1991, c. 64, s. 1664.

1665.  

Novation effected between the creditor and one of the solidary debtors releases the other co-debtors in respect of the creditor; novation effected in respect of the principal debtor releases his sureties.

However, where the creditor has required the accession of the co-debtors, in the first case, or of the sureties, in the second case, the existing claim subsists if the co-debtors or the sureties refuse to accede to the new contract.

1991, c. 64, s. 1665.

1666.  

Novation which has been agreed to by one of the solidary creditors may not be set up against the other co-creditors, except for his part in the solidary claim.

1991, c. 64, s. 1666.

SECTION IV

DELEGATION

1667.  

Designation by a debtor of a person who is to pay in his place constitutes a delegation of payment only when the delegate obligates himself personally to the delegatee to make the payment; otherwise, it merely constitutes an indication of payment.

1991, c. 64, s. 1667.

1668.  

Where the delegatee accepts the delegation, he preserves his rights against the delegator, unless the delegatee evidently intends to discharge him.

1991, c. 64, s. 1668.

1669.  

The delegate may not set up against the delegatee the defenses he could have raised against