Many thanks, Lionel, for this very interesting judgment!

Best wishes,

Gerhard

Many list members will be interested in a judgment released this week (in English) by the Quebec Court of Appeal, perhaps especially since it involves a retired university professor.

In an unusual set of facts, the professor held a life annuity payable by the university. He went missing, and Quebec law (like many civilian systems) has a regime for missing persons under which they are presumed to be alive, with someone appointed to manage their property, until the facts are learned or until seven years have passed, at which point a judgment declaratory of death can be issued by the court.

When Prof. Rosme went missing in 2007 the university wished to stop payment, but was told by a lawyer that the regime for absentees required that it continue to pay the annuity of $6,000 per month. Eventually his remains were discovered in 2013, and the authorities certified that he had died in 2007. The university now claimed some $500,000 from his estate, and/or his sole heir, who was also the liquidator of the estate and the person who had been managing his property during the absence. 

The case revealed something of a gap in the Civil Code of Québec. Mistaken payments are governed by arts. 1491-2 which codify a version of the condictio indebiti of Roman law. However, this claim lies only when the payment was not owing at the time it was made, and in this case under the regime for absentees the university was legally obliged to pay the annuity until the facts were discovered. That claim also requires that the payment have been made in error, or in Quebec under inappropriate pressure. But in this case, neither of these was true; the university thought it was obliged to pay and it was obliged to pay. Nor could the rules for contracts which are annulled or frustrated be applied, since this is not what had happened.

Many list members will know that in both France and Quebec, a residual action in unjust enrichment was recognized by the courts even though it was not in the Code. (It is now codified in both places, but that action also will not lie if the enrichment was legally owing at the time it was conferred.) In a scholarly judgment which discusses the links between the regime for restitution (arts. 1699 ff of the Code) and the different sources of the obligation to make restitution, Nicholas Kasirer JA held that "all the law is not necessarily to be found in the text of the Code" [130] and that the Code should be interpreted to admit also a version of the condictio ob causam finitam of Roman law. That claim allowed recovery of a payment that was legally owing at the time it was made, where the cause or justification for the obligation has later fallen away. This was held to be the correct foundation for the University's claim.

The judgment is attached.

With best wishes,

Lionel