Daryo Nov 6, 2018:

@ Catherine Earle you gave a perfectly good translation in the discussion:

***one cannot both undertake an obligation and, at the same time, not undertake it***

and then proposed as your answer a translation that shifts the meaning quite a lot in the wrong direction.

John Fossey Nov 5, 2018:

Civil code "what if you signed a one-year lease with a landlord, but buried in small print on page 56 it said the landlord could evict you at any time for no reason" - Good example. There are multiple sections of the Québec Civil Code that govern lessor-lessee contracts, and such a lease would most likely be thrown out as violating the Civil Code.

Eliza Hall Nov 5, 2018:

What Catherine Earle said "One cannot both undertake an obligation and, at the same time, not undertake it." That's the sum of it.

The basic idea here is that Quebec defines "abusive" provisions as those that undo the very thing that the contract is supposed to do. Or, to put it another way, bearing in mind that contracts are usually drafted by one party (not both working together), an abusive provision is one that relieves the drafter of an obligation that, according to the very nature of the contract, he has to fulfill.

I don't know if this counts in Quebec, but an example comes to mind: what if you signed a one-year lease with a landlord, but buried in small print on page 56 it said the landlord could evict you at any time for no reason? That's contrary to the very nature of a lease. Under any lease, the landlord undertakes the obligation of letting you occupy the premises for the stated amount of time (the lease duration, e.g., one year), so long as you pay the rent on time and don't break any rules. That's what a lease IS. So if the lease says the landlord can kick you out any time for no reason, even if you're paying the rent and abiding by the rules, that changes the very nature of the contract.

John Fossey Nov 5, 2018:

Civil law vs common law Under a civil law jurisdiction such as Québec, the Civil Code often overrides contracts. If an ambiguous clause is found to be unreasonably detrimental to the consumer (hence abusive), the clause may be ruled null and void, hence there is no interpretation of which interpretation applies. This is unlike a common law jurisdiction, where the court would decide which interpretation is valid.

Catherine Earle Nov 5, 2018:

Here is where, I believe, John's citing of the law in question is helpful: a clause which is "...not in good faith" and "...a clause which so departs from the fundamental obligations arising from the rules normally governing the contract..." In other words, the legal principle you are seeking is one of the essential "rules". Included in these is the principle of the legal capacity to form a contract. The distinguishing characteristic of "legal capacity" is soundness of mind. Self-contradiction excludes the possibility of being of sound mind.
This does not help with your translation, however. I suggest a translation such as, "one cannot both commit oneself and not commit oneself at the same time", as a nod to the underlying, "well-established" principle you are seeking, which is that of legal capacity being required to form a contract.

Eliza Hall Nov 5, 2018:

Abusive... not. Re John Fossey's comment, contract provisions that can be read in multiple ways are not "abusive" under the law. They're just ambiguous, which means if either party sued the other, the court would have to interpret that provision (i.e. decide what it meant). Once the court interpreted it, the court would normally enforce it.

John Fossey Nov 5, 2018:

Abusive contracts The law referred to (CCQ 1437 in the Québec Civil Code) refers to abusive clauses in a contract. It might be helpful to quote it in full:

French: La clause abusive d’un contrat de consommation ou d’adhésion est nulle ou l’obligation qui en découle, réductible.
Est abusive toute clause qui désavantage le consommateur ou l’adhérent d’une manière excessive et déraisonnable, allant ainsi à l’encontre de ce qu’exige la bonne foi; est abusive, notamment, la clause si éloignée des obligations essentielles qui découlent des règles gouvernant habituellement le contrat qu’elle dénature celui-ci.

English: 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.

Clauses that can be read in different ways could be considered abusive.

Catherine Earle Nov 5, 2018:

Hi Caissey,

I think what you are dealing with here is the most basic principle of contract law. As stated in the New French Civil Code, in English (approved translation), at the outset of the section on contracts, "Art. 1101. – A contract is a concordance of wills of two or more persons intended to create, modify, transfer or extinguish obligations." (for quick reference, see https://www.trans-lex.org/601101/_/french-civil-code-2016/#h... This is why your source document notes that it is a very well established principle. Starting from this, it is of course logical to state that one cannot both undertake an obligation and, at the same time, not undertake it.

Caissey N. (asker) Nov 5, 2018:

Note Note that in respect of this principle, the author cites: François TERRÉ, Philippe SIMLER et Yves LEQUETTE, Droit civil : Les obligations, 11e éd., Paris, Précis Dalloz, 2013, no 610, p. 660.