LexInter | September 17, 2019 | 0 Comments


1- The assessment of damages 

1  –  Evaluation in general

  1. Damages due to the creditor compensate for the loss he suffers and the gain of which he is deprived.

In determining them, future prejudice is taken into account when it is certain and can be assessed.

1991, c. 64, a. 1611.

  1. In matters of trade secrets, the loss suffered by the owner of the secret includes the cost of the investments made for its acquisition, development and exploitation; the gain of which it is deprived can be compensated in the form of royalties.

1991, c. 64, a. 1612.

  1. In contractual matters, the debtor is only liable for damages which have been foreseen or which could have been foreseen at the time when the obligation was contracted, when it is not through his intentional fault or by its gross fault that it is not carried out; even then, damages only include what is an immediate and direct consequence of the non-performance.

1991, c. 64, a. 1613.

  1. The damages owed to the creditor in compensation for the bodily injury he suffers are established, with regard to the prospective aspects of the injury, on the basis of the discount rates prescribed by government regulation, when such rates are thus fixed. .

1991, c. 64, a. 1614.

  1. When awarding damages for bodily injury, the court may, for a period of not more than three years, reserve for the creditor the right to seek additional damages, where it is not not possible to determine with sufficient precision the evolution of his physical condition at the time of the judgment.

1991, c. 64, a. 1615.

  1. Damages awarded for compensation for injury are, unless the parties agree otherwise, payable in the form of a capital payable in cash.

However, when the injury is bodily injury and the creditor is a minor, the court may impose, in whole or in part, payment in the form of an annuity or periodic installments, the terms of which it fixes and may provide for indexation according to a rate. fixed. In the three months which follow his majority, the creditor can demand the immediate payment, updated, of all that remains to him to receive.

1991, c. 64, a. 1616.

  1. Damages resulting from delay in the performance of an obligation to pay a sum of money consist of interest at the agreed rate or, failing any agreement, at the legal rate.

The creditor is entitled to it from the time of default without being required to prove that he has suffered damage.

The obligee may, however, stipulate that it will be entitled to additional damages, provided it can be justified.

1991, c. 64, a. 1617.

  1. Damages other than those resulting from delay in the performance of an obligation to pay a sum of money bear interest at the rate agreed between the parties or, failing that, at the legal rate, since the default or since any other later date that the court considers appropriate, having regard to the nature of the damage and the circumstances.

1991, c. 64, a. 1618.

  1. An indemnity fixed by applying to their amount, from one or the other of the dates used to calculate the interest they bear, may be added to the damages awarded for any reason whatsoever. percentage equal to the excess of the interest rate fixed for State debts pursuant to Article 28 of the Act respecting the Ministère du Revenu over the interest rate agreed between the parties or, failing that, over the legal rate.

1991, c. 64, a. 1619.

  1. Interest accrued on capital itself produces interest only if there is an agreement or a law to this effect or if, in an action, new interest is expressly requested.

1991, c. 64, a. 1620.

  1. When the law provides for the award of punitive damages, they may not exceed, in value, what is sufficient to ensure their preventive function.

They are assessed taking into account all the appropriate circumstances, in particular the seriousness of the debtor’s fault, his patrimonial situation or the extent of the compensation to which he is already owed towards the creditor, as well as, appropriate, due to the fact that the assumption of responsibility for the repair payment is, in whole or in part, assumed by a third party.

1991, c. 64, a. 1621.

2  –  Advance valuation

  1. The penalty clause is that by which the parties assess the damages in advance by stipulating that the debtor will submit to a penalty in the event that he does not perform his obligation.

It gives the creditor the right to avail himself of this clause instead of pursuing, in the cases which allow it, the performance in kind of the obligation; but he can in no case at the same time demand the execution and the penalty, unless the latter has been stipulated only for the only delay in the execution of the obligation.

1991, c. 64, a. 1622.

  1. A creditor who avails himself of the penal clause is entitled to the amount of the stipulated penalty without having to prove the damage he has suffered.

However, the amount of the stipulated penalty may be reduced if the partial performance of the obligation has benefited the obligee or if the clause is abusive.

1991, c. 64, a. 1623.

  1. When the obligation accompanied by a penalty clause is indivisible without being solidary and its non-performance is the fault of only one of the co-debtors, the penalty may be requested either in full against the one who has not performed or against each of the co-debtors for his part; except, in the latter case, their recourse against the one who caused the penalty.

1991, c. 64, a. 1624.

  1. When the obligation accompanied by a penal clause is divisible, the penalty is also divisible and it is incurred only by the co-debtor who does not perform the obligation, and for the part for which he is bound in the obligation, without there being any action against those who executed it.

This rule does not apply when the obligation is joint and several. It does not apply, either, when the penalty clause had been stipulated so that the payment could not be made partially and one of the co-debtors prevented the execution of the obligation for the whole; in this case, the whole penalty may be demanded of him, and of the others for their part only, except their recourse against him.

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