Nov 5, 2018 17:35
5 yrs ago
2 viewers *
French term
à la fois s’engager et ne pas s’engager - principe juridique
French to English
Law/Patents
Law: Contract(s)
civil law / contracts / legal doctrine
Bonjour,
In the context of an article for clients of a law firm abut abusive clauses in contacts (Quebec civil law), an author explains that a test for an abusive clause is that it must change he nature of the contract (CCQ 1437). She writes,
"La clause qui dénature le contrat s’oppose si résolument aux obligations que la partie qui la prévoit pouvait raisonnablement concevoir que l’accord ne serait réduit qu’à une coquille vide qui dément le principe pourtant bien établi, en droit, suivant lequel on ne peut à la fois s’engager et ne pas s’engager".
I am not familiar with this legal principle (pourtant bien établi !).
Can anyone with legal experience help me understand and name this principle in English?
Again, my question specifically concerns the notion that "on ne peut à la fois s’engager et ne pas s’engager"
Does it have to do with undertakings that cannot be fulfilled?
Merci d'avance!
In the context of an article for clients of a law firm abut abusive clauses in contacts (Quebec civil law), an author explains that a test for an abusive clause is that it must change he nature of the contract (CCQ 1437). She writes,
"La clause qui dénature le contrat s’oppose si résolument aux obligations que la partie qui la prévoit pouvait raisonnablement concevoir que l’accord ne serait réduit qu’à une coquille vide qui dément le principe pourtant bien établi, en droit, suivant lequel on ne peut à la fois s’engager et ne pas s’engager".
I am not familiar with this legal principle (pourtant bien établi !).
Can anyone with legal experience help me understand and name this principle in English?
Again, my question specifically concerns the notion that "on ne peut à la fois s’engager et ne pas s’engager"
Does it have to do with undertakings that cannot be fulfilled?
Merci d'avance!
Proposed translations
(English)
4 +2 | one cannot at the same time accept an obligation and reject it | Daryo |
4 +1 | one cannot be bound and not bound simultaneously | Catherine Earle |
Proposed translations
+2
18 hrs
French term (edited):
on ne peut à la fois s’engager et ne pas s’engager (principe juridique)
Selected
one cannot at the same time accept an obligation and reject it
"the being bound by ..." by a contract doesn't happen out of thin air - it's not some "impersonal fact" - it's the result of a contracting party actively deciding to accept an obligation (or trying to wiggle its way out of it ...)
Peer comment(s):
agree |
Eliza Hall
: Correct. The person who wrote the contract consciously wrote it with a provision that lets them get out of the contract; that's an abusive clause. It's not about "being bound or not" (Catherine's suggestion) but about actively deciding to weasel out of it
1 hr
|
Thanks!
|
|
agree |
AllegroTrans
2 days 8 hrs
|
Thanks!
|
4 KudoZ points awarded for this answer.
+1
1 hr
one cannot be bound and not bound simultaneously
See my comments in the general discussion.
Peer comment(s):
agree |
John Fossey
16 mins
|
agree |
Patricia Fierro, M. Sc.
1 hr
|
agree |
Yolanda Broad
8 hrs
|
disagree |
Daryo
: you make it sound like there is no personal decision involved + this could also apply to obligations between a private party and the State, which is out of the scope of this principle.
16 hrs
|
disagree |
Eliza Hall
: I'm with Daryo. Catherine, the answer you proposed in the discussion was better.
18 hrs
|
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.
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.
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.
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.
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.