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We all make commitments to other people on a regular basis. Often when we do this, we’re actually making a contract. No matter what these contracts entail, under Quebec law – the Civil Code of Québec in particular – we are supposed to keep the promises we make in a contract. Any person who fails to respect a contract can be made to pay for the damage that results.
In this Infosheet, Éducaloi explains the general principles of contractual liability, the rights and obligations of the contracting parties, as well as the options for legal action available when someone breaks a contract.
Before a court can conclude that you are liable to compensate the other party for damages, three essential elements must be proven:
1) You must have committed a fault: Like everyone else, you have an obligation to keep the promises you make in a contract. If you fail to fulfill your commitments, you may have to pay for any resulting damages. In court, most of the time the person you made the contract with has to prove that you didn’t fulfill your obligations. There are also obligations that go beyond the contract itself. For more information, consult the Infosheet entitled Civil liability. There are some cases where you are presumed to be at fault – when you promise to provide a specific result and then fail to do what you promised. In these cases, it is not up to the other person to prove that you were at fault. Instead, you have to show that you weren’t. For example:
2) The person you contracted with must have suffered harm resulting from your fault (this could include the cost of finishing the work or having work carried out, interest on amounts owed, the loss of a sale, costs of hiring an expert, etc.). 3) The fault that you committed must be the immediate and direct cause of the damage to the other party. Lawyers often say that there has to be a “causal link” between the fault and the damage.
Depending on the situation, several options for action are available:
By law, you can refuse to pay or perform any other obligation as long as the contracting party fails to properly fulfill her side of the agreement, or fails to offer to do so.
But be careful. This rule only applies when you’re not bound to perform your obligations first. It is best to get informed before you stop performing your side of the bargain.
As soon as you notice that a contracting party is defaulting on its obligations, you have an obligation to minimize the harm done to you. This means that you must do what you can to improve your situation and prevent the damage from getting any worse.
The courts are stern with people who seek damages (payment) for harm that could have been avoided with a little care. As an example, if your employer fails to respect your employment contract, you must minimize the harm by making reasonable efforts to find a new job and to consider accepting reasonable job offers.
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