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A review of recent jurisprudence and doctrine points to the emergence of a new category of contractual obligation : the essential obligation. An array of texts, more numerous in France than in Québec, highlights and attempts to define the notion. Nevertheless, because of the quantitative and qualitative importance of the elements that characterize each proposed doctrinal definition, none is truly satisfactory. We have no choice but to admit that the number of concerns and criticisms raised in connection with the notion make it difficult to circumscribe its actual meaning. In this article, after setting out some doctrinal definitions and the main uncertainties surrounding the notion, we will try to uncover its true meaning by reviewing the ways in which it is used. We will show that the essential obligation has earned a place in the increasingly broad and specialized set of restrictions on contractual freedom.
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Stéphanie Ghozlan, 2015 49-2 Revue juridique Thémis de l'Université de Montréal 399, 2015 CanLIIDocs 4942
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Traditionally, when a victim sought damages, the injury would be categorized as material or moral, depending on whether a patrimonial interest was involved. Under the new Civil Code of Quebec, key articles relating to civil liability divide injuries into three separate categories. In so doing, the Quebec Legislator confirms a jurisprudential and doctrinal trend which considers bodily injury as distinct from the two categories mentioned above. The writer notes that this classification will have a greater impact on the rules concerning civil liability than that which existed under the Civil Code of Lower Canada, since several articles apply differently depending on the nature of the injury suffered by the victim. In addition, she examines some of the difficulties that may arise in the application of this newly recognized classification.
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The Supreme Court's influence on the law of the Civil Code ofLower Canada was so determining that it demonstrates that jurisprudence can be a true source of law. In the reform of the Civil Code, not all holdings of the Court were followed by the legislature, but the majority, and the most significant ones were codified. The dark era of the systematic «uniformisation» of Quebec law with the common law is over, nowadays the Court's approach to the civil law is enriched by well-conceived and respectful comparative law. This is yet another reason to regret that so few civil law decisions are handed down by the Court.
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The critical evaluation of the High Court's decision in Crimmins v Stevedoring Industry Finance Committee in the conceptual context of the public/private law dichotomy is discussed. The public/private law dichotomy is a formalistic distinction which belies the fact that there are overlaps in public and private law and that all law is in fact guided by considerations of public policy.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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This text compares the position adopted by the Court of Appeal in 2009 on the punishment of insults in the Genex ruling with the decisions rendered since then by the Supreme Court of Canada and the Quebec Court of Appeal. This analysis shows that the positions of the courts have changed and that offensive and insulting comments can no longer be sanctioned independently, as they were in Genex. The outcome is that insults must qualify as a breach of the right to the safeguard of reputation or of the right to equality, without which it will be found that the damage to the safeguard of dignity resulting from the insults cannot be considered as giving rise to compensation. The new analytical framework generates a confused amalgam in the distinction of rights guaranteed by the Charter of Human Rights and Freedoms.
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