Summer Seminar: Kinship, Friendship, Contract: A Survey of Impossibilité Morale’s Application in Québec Between 1994 and 2018

Each summer, the Paul-André Crépeau Centre for Private and Comparative Law organizes a series of seminars to promote research of students from McGill and elsewhere. Attendance is open to all. For more information, email centre.crepeau [at] mcgill.ca.

Speaker: Philippe April

Ask the person nearest to you the following question: if a close family member loaned you a sum of money, would you ask them to sign a contract to that effect? Their response should seem nearly automatic, “of course I wouldn’t.” This intuitive answer to a seemingly basic question has ramifications if the relationship ever sours, and either party seeks recourse in Québec’s civil courts.

The civil law evidentiary system puts primacy on documentary evidence as the best possible means of proof in civil litigation. The civilian requirement for documents to prove the existence of a contractual obligation gives pause for a notable issue, how can you produce documents for a contract validly formed without written proof? This presentation attempts to tackle these questions in three parts.

• First, the presentation tracks the doctrinal origins of “impossibilité morale” from the French “droit ancient,” the French Code Civil, and impossibilité morale’s presence prior to the Québec Civil Code’s revision in 1994.
• Second, legislative and doctrinal developments in Québec are analyzed, as well as the scope of the application in Quebec Civil Law by reviewing 46 cases where CCQ 2861 was argued since 1991. In doing so, impossibilité morale is found to apply in three circumstances: family, de facto relationships, and personal relationships approaching the quality of familial relationships.
• Finally, impossibilité morale is viewed from a macro perspective, determining that the expanded application of impossibilité morale is both a sociological phenomenon, and a pragmatic decision on the part of the legislator. The aim of the article is to clarify the exception’s parameters for more uniform application, and for parties to understand when they might be able to avail themselves of the exception.