How can the jurisdictions of Quebec and England be used to illustrate the differences in specific performance in common and civil law jurisdictions?

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Beth Payne

The founding theory of contract law is the need for performance – “contracts are made to be performed”.[1]When a contract is agreed upon, the agreeing parties are expected to perform what they have agreed to.[2]Historically, and regardless of the jurisdiction, this has not changed – the wills of the parties are bound to these obligations, with minor exceptions.[3] Specific performance is the pinnacle of this principle: it demands that the party in breach uphold their agreed obligation. Such a remedy is, predictably, controversial.[4] In England and Wales,[5] it is an equitable remedy, used rarely outside the narrow ambit of “where damages are inadequate”.[6] Crucially, the principle underpinning English law, as written by Anson, is that “every breach of contract entitles the injured party to damages… but it is only in the case of certain contracts and under certain circumstances that specific performance can be obtained”.[7]

Contrary to expectations established in common law, civil law stems from a different idea entirely: exécution en nature, or performance in kind, which was considered the logical remedy for breach of binding promises made in a contract. This way, the contract could be fulfilled.[8] To compare civil and common law in their interpretation of specific performance is a challenge unto itself; this challenge is well illustrated by the examples of  England and Quebec. 

The historical and ideological differences between English common law and Quebecois civil law, allow for an exceptional glimpse into the historical development of a legal mechanism, the failure of a legal transplant across jurisdictions, and the application of transplants in modern cases. There are several shortcomings of this comparison: namely, that the concept of ‘specific performance’ varies between the jurisdictions. For a judge to grant specific performance in an English court means, aptly put by Maitland, “You must perform specifically the contract into which you entered”.[9] In contrast, Napoleonic civil law bases the concept of ‘specific performance’ upon exécution en nature – a concept, broader than English specific performance. Romero identifies three differences in particular: it does not solely consider performance by the defendant, it enforces positive and negative obligations, and broadly, a claimant is entitled to any remedy other than damages.[10]This technical difference is problematic, prima facie – when comparing specific performance in Quebec and England, one is not comparing an identical concept. For the purposes of studying the two, it is the practical effect and application that is substantial, not the theoretical differences. Both historically and in case studies, ‘specific performance’ is an all-encompassing term that accurately represents how the remedy functions in each jurisdiction. It is important to recognise that this is for theory’s sake alone: specific performance in Quebec and England are quite different, but for the sake of comparison, must be measured against one another.

The development of specific performance – England

The historical development of the Courts of Law versus the Courts of Chancery means that English common law has advanced with two broad classes of remedies for breach of contract: legal, and equitable. Specific performance fits into the latter of these classes – it functions as an operation of equity, not law. Specific performance makes up the gap in the common law, where damages are an inadequate remedy.[11] Falcke, the case this rule was affirmed in, is significant for the purposes of tracing specific performance throughout English legal history: specific performance is only granted where equity is forced to intervene. 

It is critical to understand a brief history of equity to understand why specific performance is so oppressed in English law – and why arguments such as Lord Hoffmann’s in Argyll are accepted in English law even when they appear, prima facie, superficial.[12] Equity is unique to the common law, and thus, provides an excellent device through which specific performance in England can be viewed.

Equity in England has existed since the fifteenth century,[13] but for the purposes of specific performance, it is best to first consider the nineteenth century. Dissatisfaction with the common law led to equity filling the gaps: where common law was inflexible and bound by stare decisis, equity was malleable and discretionary. Historically, the separation between the Common Law Courts and the Courts of Chancery meant that claims in equity and claims in law had to be bought separately; if a claimant made their case before the wrong court, it was costly. In spite of this separation, it was recognised that equity was never an opponent to the common law – however, where the two clashed, equity would come out on top.[14] In spite of this, equity always avoided conflict with the common law, to the best of its ability.[15] This explains, at least in part, the deferential function that specific performance takes to damages in modern-day contract law. When the Judicature Acts 1873 and 1875 came into force, fusing the Common Law Courts and Courts of Chancery, debates on the fusion of equity and common law commenced, but to little effect. Ashburner’s metaphor for the two as separate streams that run side by side but ‘do not mingle their waters’ is the most accurate representation of equity in modern-day law.[16] All courts exercise an equitable jurisdiction,[17] but where the common law suffices, equity is not present – but equity prevails where the common law fails.[18]

As an equitable remedy, specific performance obeys several equitable maxims – it embodies the maxim ‘Equity looks on Done that Which Ought to be Done’ – ‘that which ought to be done’ being contractual obligations.[19] The general principle of unconscionability, or unfairness, is likely to motivate a judge to grant specific performance.[20] Likewise, delay in litigation is sufficient to refuse specific performance – [21]  ‘Delay Defeats Equities’ –[22]  as will unconscionable behaviour,[23]

or extreme hardship in performing an order.[24] These maxims, and the history of equity as an aid to the common law, demonstrate that equitable remedies such as specific performance are executed in a manner unique to the English legal system. Crucial to this unique nature is the fundamental idea that specific performance can only ever be granted where damages would be inadequate. As Romero states, the Courts of Chancery limited their interference to when imperfections in the Common Law obstructed justice.[25] Nutbrown is amongst the first cases in the nineteenth century to demonstrate this principle.[26]

Where the breach of contract pertains to property that is unique in nature, and thus cannot be remedied with pecuniary means, specific performance is the acceptable remedy. On the contrary, where property was “ordinary… with no special value or interest”,[27] specific performance would not be granted. This principle has been affirmed throughout the years – where there are no substitutes for the actual chattel in dispute, specific performance will be granted.[28] Professor Berryman argues that, historically, the chancery’s jurisdiction was characterised more by “adherence to… reasonableness, just price and judicial paternalism”,[29] an argument that is hard to disagree with given the inherently fair nature of the chancery jurisdiction, but one that must be illustrated with equity.

Historically, specific performance in England has always been stunted by its own nature. Damages are, for the vast majority of cases, wholly adequate – a snag for the growth of equity, and as described by Professor Berryman, the “chief restraint on specific performance”.[30] Berryman recognises, however, a crucial element of this: the restraint is self-imposed.[31] It may appear, prima facie, that equitable remedies have been repressed by the overbearing common law, but English law does not want primacy of equity. The synergistic relationship borne of hundreds of years of development is typical of the English law – it has evolved into a satisfactory state. This understanding of equity, and how specific performance works in the grand frame of equity, is crucial for comparing English law against any other jurisdiction, but in particular, civil jurisdictions. When comparing English law to that of Quebec, the position is unique – the comparison affords an opportunity to view precisely how a legal transplant from a jurisdiction with history as rich as England’s simply doesn’t work.

The development of exécution en nature – Quebec 

Quebec has a unique legal system, drawing from both common law, governing all federal law, and civil law, governing private law. Quebec has its own Civil Code,[32] influenced by Napoleonic law, that administers private law; notably, the law of obligations. The distinction between common and civil is not quite as simple as it may appear, however; characteristics of the common law also appear in private law. An illustration can be seen in the early twentieth century, as Krassa writes, “negative injunctions are granted… where the remedy of damages would be inadequate.”[33] Krassa, writing in 1943, is exemplary for proving the influence of common law in this period of time in Quebec. Indeed, prior to a series of cases in the late twentieth century, Quebec maintained an approach to specific performance almost identical to that of the common law.[34] When examining Quebecois private law, it is crucial to look at how French law developed the principle of exécution en nature first, before analysing how that came to be interpreted as specific performance in Quebec. 

As a civil law system, Quebec draws its roots from the Napoleonic Code, originally enacted in 1804. Though the influence of the Napoleonic Code was broad, Quebec, amongst other jurisdictions in the Americas, was heavily influenced by its codes; the Napoleonic Code itself was so well received that it became a global model for civil jurisdictions.[35] The fundamental concept of exécution en nature was first theorised by commentators on Roman scholars, in order to capture the idea of remedies that did not include pecuniary reward.[36]Romero identifies two of these commentators in particular; Bartolus, concluding that exécution en nature was only applicable where an obligation was ‘to give’, and Fabre, who coined the vital maxim nemo pracise potest cogi ad factum.[37] Article 1124 of the Napoleonic Code reflected this: “Any obligation to do or not to do is resolved in damages in case of non-performance of the debtor”.[38] This article is not to be misinterpreted as the Napoleonic Code’s dislike of specific performance: it was still very much the case that exécution en naturewas the preferred remedy.[39] This inclination for exécution en nature continued, and it became readily accepted that exécution en nature was the ‘primary remedy’ for civil law jurisdictions; Romero goes to great lengths to emphasise the fact that a ‘primary remedy’ does not mean the most common remedy,[40] but the one available by default.

If Quebec’s Civil Code was so heavily influenced by the Napoleonic Code, then why did Quebec disapprove of specific performance? As Jukier points out, the Civil Code provided for the remedy, specifically in Article 1950.[41] However, remedies chosen by Quebec were foreign – the injunction, an equitable remedy, is typical of common law. Transplantation of devices typical to one legal system is often criticised,[42] and Quebec offers an example of why legal transplantation often fails. With the mechanism of injunctions from the common law, comes the restrictive, equity-driven application of injunctions – explaining Krassa’s commentary in 1943.[43]Jukier, writing in 1987, recognised that the “incompatibility between the restrictive judicial attitude… and the choice of remedy supposedly granted to creditors is finally being acknowledged”.[44] This epitomises perfectly the sentiment at the time. It was not until the 1980s when the judiciary – notably beginning with the Propriétés Cité cases –[45]  began to question the paradox posed by Jukier. But Jukier makes a point to emphasise the influence that the common law had over how Quebec approached specific performance:[46] Justice Pigeon in Trudel states that the “principles established in common law jurisdictions” were what must be considered in exercising discretion over injunctions.[47] The reason this is so onerous, submits Jukier, is that civil law jurisdictions operate on the fact that creditors are given choice of recourse – restricting this in the common law manner makes the choice “illusory”.[48] The 1980s was transformative in this respect, ending with the now seminal case of Golden Griddle, directly affirming Quebec’s shift towards its civil roots.

After a volatile period of clashing ideologies, Quebec has settled into the ‘norm’ for a civil law system. Specific performance is granted in the Civil Code,[49] and is often considered by the courts.[50] Quebec is uniquely equipped to demonstrate the shortcomings of legal transplantation, however it is also fortunate enough to be long past the period of transplantation; the natural judicial urges of a civil law system quickly saw the law rectified and ideologically unified. This journey illustrates the unique nature of the English equitable remedies: without the historical facet of equity, transplanting a mechanism from English law to another jurisdiction debases the fundamental legal principles behind the concept. 

Argyll and Golden Griddle – illustrating the jurisdictions

Rarely do two cases in two different jurisdictions have such similar facts as do Argyll,[51]decided in the House of Lords in England, and Golden Griddle,[52] decided in the Superior Court of Quebec. When examined side-by-side, the divergent rulings in these two cases provide an illustration of the default positions of England and Quebec on specific performance. Both cases pertain to breaches of clauses in leases requiring continuation of commercial operations, where the lessees have ceased trading to avoid running at a loss. The lessors, in protest of the breaches, claimed for specific performance of the clause. In spite of the similarity of the facts, the law in each jurisdiction diverges on the remedies granted. This begs the question of how each court justify their findings. There are two notable differences in how the cases were decided that aid in the understanding of each jurisdiction’s decision: how the courts treat commercial parties; and how they view the enforcement of their orders. In each case, these factors were considered at length, and each is telling of how the jurisdictions view specific performance.  

Both parties in each case are commercial, which is not to be underestimated. Steinberg J in the Superior Court of Quebec, in particular, emphasises the commercial nature of the contract.[53] It is significant that both parties were not only commercial but had legal representation and opportunity to negotiate. Steinberg J notes alterations to clause 6.3 of the contract: in negotiations, Golden Griddle (the lessees) had chosen to retain the option of a permanent injunction in favour of Belcourt, omitting other stipulations.[54] From this, Steinberg J held, it was clear that Golden Griddle not only had the legal power that would have allowed them to remove this clause, should they have wished, but they chose not to utilise that power. This argument alone would not have granted the injunction Belcourt sought, but it does reinforce that commercial parties will find little favour in arguing that they did not intend the clause in the contract that allows injunctive relief against them. Lord Hoffmann makes similar – albeit less extensive – reference to the parties’ commercial nature. Rather than vindicate the presence of the covenant in clause 4(19) requiring specific performance, however, Lord Hoffmann uses their status to presume their knowledge of the expectation to give damages as a remedy.[55]Little else is said beyond the court’s expectation of commercial parties’ awareness of damages as the primary remedy. Whilst it is vital to note that the clauses in both contracts calling for specific performance mean nothing without a judge’s discretion to grant the remedy,[56] it is the treatment of how these clauses came to be in the contracts that is noteworthy.

Steinberg J places weight on the arms-length negotiations of the parties; Lord Hoffmann does not address the parties’ negotiations. In the English case, the expectations of precedent – that specific performance will only ever be granted where damages are inadequate[57] – supersede the will of the parties entering into a contract with stipulations to grant specific performance. This calls into question the validity of will theory in the area of specific performance: where equity interferes with the common law, it appears that the apparent will of the parties can be set aside to uphold the common law. Jukier identifies personal liberty as one of the major objections to the enforcement of specific performance;[58] this may be the underlying reason for Lord Hoffmann’s refusal to implement a commercially negotiated term in a contract. An earlier of Junkier’s articles were cited in the judgement of Golden Griddle pertaining to much the same issue.[59] In particular, the court highlighted this point from Jukier: “if the will of the parties is the source of contractual obligations, the will of the parties, as evidenced in the contract, dictates that contractual obligations actually be performed”.[60] By this argument, Quebec is far more inclined to take the will of the parties into account – but based on what is in the contract, not on considerations outside of the contract.

The parties may be commercial in nature, but this does not excuse the maxim nemo praecise cogi potest ad factum – “no one can be forced to do a specific act”.[61] Courts have often cited this as a reason to reject specific performance, on the grounds that only acts of physical violence, or measures that are “too heavy handed”,[62] would be able to enforce the order made. Both courts consider this principle in their judgements and, unsurprisingly, reach different outcomes. Lord Hoffmann condemns the idea of forcing someone to act, citing Megarry J in Morris[63] to denounce the use of contempt to enforce specific performance.[64] This has as much to do with personal liberties as it does costs: rightfully, no court wants to expend their resources on enforcing an order of specific performance. However, this decision operates on the pessimistic assumption that the parties intend to breach in the first place: English courts do not put the same trust in commercial parties to obey a court order that Quebec does. Golden Griddle, amongst many other Quebecois cases, provides a juxtaposition to the English default. Jukier cites Dargaud Éditeur,[65] where Chevalier JA stated that the presumption should be that the order will be obeyed.[66] It is accepted in Quebec that commercial parties will honour their expectations. This shows in how the nemo maxim is applied in Golden Griddle: for Steinberg J, the nemo maxim is outdated in modern commercial relationships.  A single “moral person” used to be held accountable,[67] but the relationship is now between two commercial parties. Steinberg J, quoting Hugessen J in Loews Hotels,[68] illustrates this point further: “this contract… is a commercial arrangement between two corporations. To apply it to criteria from a simpler age… is… to deny the drastic changes that have taken place in the organization of the modern business world”.[69] Quebec no longer considers that the enforcement of commercially-agreed contractual clauses imposes hardship: parties should expect this outcome. This logic could be the result of a greater emphasis being placed on business reputation, something Jukier highlights,[70]citing Macaulay’s theories in particular.[71] The broad idea that contract law in business is often “unnecessary”[72] is a step too far, but the introduction of business theory and norms into contracts is an interesting evolution in the Quebecois system, and a divergence from the English system. 

The potential implications of the contrasting rationales of these two cases are wide-ranging: if differing business ethics explain all, specific performance would have a more straightforward history, and the frequency of its appearance in court records would depend on judges’ personal views, not the law itself. Whilst the socioeconomic view Macaulay provides is of interest, the difference of opinion in Golden Griddle and Argyll does not come down to philosophies. The caution applied by the English courts is well-founded, should a breach arise, and Lord Hoffmann is correct in stating that damages do what specific performance cannot by “[bringing] litigation to an end”.[73] Jukier identifies a middle-ground, theorised by Professor Berryman:[74]: where difficulties are “hypothetical and speculative”, courts should simply ‘wait and see’ if an order of specific performance works.[75] If not, then the courts could “revert to damages”.[76] This middle-ground seems satisfactory but would likely not be accepted by English judges. Such indecisiveness is unacceptable, and with precedent like Argyll, why would English courts need to afford an opportunity for specific performance? It is near-impossible to ‘fit’ the Quebecois approach to specific performance into English law – Argyll’s treatment of enforcing the hypothetical order given illustrates this well.

These cases provide a frustrating perspective into specific performance. Despite the facts being materially near-identical, the decisions could not be more diametrically opposed. To transplant the reasoning of one judge into the jurisdiction of another would be a perversion of the law and, as Quebec’s history illustrates well, would likely result in a reversal of the jurisdictional norms of the country. These cases cannot be reconciled without overhauling each jurisdiction’s foundations – a practical impossibility. For Quebec, the Civil Code provides specific performance[77] –  whilst it remains a discretionary remedy, it will be considered where a contract contains it. England does not lack its own version of this,[78] but the judicial will to implement it is not present, at least for now. For a comparative study, Argyll and Golden Griddle are not only exceptional, but crucial: they show the fruition of specific performance in Quebec – and the failure of the transplantation of injunctions – and the solidarity of English law. As much criticism as England may receive for the practical treatment specific performance receives,[79]Argyll demonstrates a flawless example of the stalwart ideology of the English law – for the purposes of comparing England and Quebec, the near-dogmatic approach of each jurisdiction is remarkably flawless.

Specific performance across jurisdictions: a “theoretical abyss”[80]

The study of specific performance on a comparative scale is a grand exercise. Quebec’s and England’s unique differences provide for an equally unique opportunity to compare specific performance, and, for a more expansive study, the question of whether or not a reconciliation of these two jurisdictions would provide for a global ‘specific performance remedy’ might be appropriate. The study of specific performance is labelled a “theoretical abyss” by Jukier[81] – a title well-earned. Looking at Argyll and Golden Griddle, it is easy to pass judgement on England for rejecting specific performance where Quebec so happily allows it, but to do so would be to forget the crucial historical and ideological differences of the jurisdictions. As can be seen from examining the evolutionary differences between the civil and the common law and their approaches to specific performance, analysis of the jurisdictions on a deeper comparative level becomes significantly easier with the awareness of judicial attitudes towards the concept. 

Lord Hoffmann’s refusal of specific performance in Argyll is not a personal decision, nor is it an adherence to precedent. The English treatment of specific performance is archetypical of an entire facet of common law legal systems – equity.  The significance is this is illustrated by the rejection of equity in Quebec, a legal system where the concept is foreign and inherently an ‘irritant’.[82]If the concept of equity were universal and not specific to the common law, Quebec would find no issue in transplanting the common law injunction into its own legal system – and indeed, it found no issue with the mechanism, but could not withstand the ideology behind it. This is evidence enough that specific performance is, first and foremost, not a universal concept – Quebec’s specific performance is not England’s specific performance. This is why Golden Griddle and Argyll can never be consolidated and is why specific performance is a remarkable remedy to discuss in a comparative capacity. Unfortunately, however, the theoretical study of specific performance as a broader remedy is unlikely to materialise into the realm of reality until cross-jurisdictional mechanisms, such as the UN’s Convention on Contracts for the International Sale of Goods (CISG), form an entirely new ‘specific performance’ that does not rely on jurisdiction-specific ideologies and maxims.

[1] Cehave NV v Bremer Handels GmBH (The Hansa Nord) [1976] QB 44, 71.

[2] Hugh Beale, Chitty on Contracts (33rd edn, Sweet & Maxwell 2018).

[3] ibid, 1-041.

[4] ibid, 27-011.

[5] The jurisdiction of England and Wales will be referred to as England.

[6] Harnett v Yielding (1805) 2 Sch & Lef 549.

[7] William R Anson, Principles of the law of contract (2nd edn, Clarendon Press 1882), 305.

[8] Louis J Romero, ‘Specific performance of contracts in comparative law: some preliminary observations’ (1986) C de D 785, 805.

[9] Frederic W Maitland, Equity – A Course of Lectures (Cambridge University Press, 1936), 301.

[10] Romero (n 8), 788-791.

[11] Falcke v Gray (1859) 4 Drewry 651, [651]; 62 ER 250.

[12] Co-operative Insurance Society Ltd. v Argyll Stores (Holdings) Ltd. [1998] AC 1 (HL).

[13] Sarah Worthington, Equity (OUP 2006).

[14] Earl of Oxford’s Case (1615) 21 ER 485.

[15] John McGee, Snell’s Equity (33rd edn, Sweet & Maxwell 2014), 1-012.

[16] Walter Ashburner, Principles of equity (2nd edn, Butterworth 1933).

[17] McGee (n 14), 1-032.

[18] Walsh v Lonsdale (1882) 21 Ch D 9 (HC).

[19] McGee (n 14), 5-015.

[20] Beswick v Beswick [1968] AC 58.

[21] Milward v Earl of Thanet (1801) 5 Ves 720; 32 ER 824.

[22] McGee (n 14), 5-011.

[23] Walters v Morgan (1861) 3 DF & J 718; 45 ER 1056.

[24] Patel v Ali [1984] Ch 283.

[25] Romero (n 8), 799.

[26] Nutbrown v Thornton (1804) Ves Jr 159; 32 ER 805. 

[27] Cohen v Roche [1927] 1 KB 169, 181.

[28] Phillips v Lamdin [1949] 2 KB 33.

[29] Jeff Berryman, ‘The Specific Performance Damages Continuum: An Historical Perspective’ (1985) 17 Ottawa L Rev 295, 296.

[30] ibid, 306.

[31] ibid.

[32] Civil Code of Québec, CQLR c CCQ-1991 <> accessed 30 April 2019.

[33] Gerald F Krassa, ‘The Interaction of Common Law and Latin Law: The Enforcement of Specific Performance in Louisiana and Quebec’ (1943) 21 Can B Rev 337, 367.

[34] Rosalie Jukier, ‘Taking Specific Performance Seriously: Trumping Damages as the Presumptive Remedy for Breach of Contract’ in Robert J Sharpe and Kent Roach, Taking Remedies Seriously/Les Recours et les Mesures de Redressement:  Une Affaire Sérieuse (Montreal: Canadian Institute for the Administration of Justice, 2010) 85 – 118, 88.

[35] Thomas Gergen, ‘The Reception of the Code Civil (Napoleonic Code) of 1804: An Example of Juridical Migration’ (2014) 5 JEHL 26.

[36] Romero (n 8), 803-804; William W Buckland and Arnold D McNair, Roman Law and Common Law – A Comparison in Outline (2ndedn, Cambridge University Press 1965), 412.

[37] ibid, 806-806.

[38] French Civil Code 1804 <> accessed 30 April 2019.

[39] Romero (n 8), 806.

[40] ibid, 792-793.

[41] Jukier (n 34), 89.

[42] Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergencies’ (2003) MLR 61(1).

[43] Krassa (n 33).

[44] Rosalie Jukier, ‘The Emergence of Specific Performance as a Major Remedy in Quebec Law’ (1987) 47 R du B 49, 47-72, 53.

[45] Propriétés Cité Concordia Ltée  v Banque Royale du Canada [1980] CS 118; Proptiétés Cité Concordia Ltée v Banque Royal du Canada [1981] CS 812; Royal Bank of Canada v Propriétés Cité Concordia Ltée [1983] RDJ 528 (Que CA).

[46] Jukier (n 44), 52.

[47] Trudel v Clairol Inc. of Canada [1975] 2 SCR 236, 246.

[48] Jukier (n 44), 53.

[49] Civil Code of Québec (n #), article 1590.

[50] Certicom Corp v Research in Motion Ltd [2009] 94 OR (3d) 511; Pioneer Petroleums Ltd. Partnership v 2049904 Ontario Inc [2009] ONCA 122; Midas Realty Corp. of Canada Inc. v Galvic Investments Ltd. [2009] ONCA 84.

[51] Argyll (n 12).

[52] Construction Belcourt Ltée v Golden Griddle Pancake House Ltd [1988] RJQ 716 (QCSC).

[53] ibid, [30]-[40].

[54] ibid, [38].

[55] Argyll (n 12), 18.

[56] ibid, 9; Golden Griddle (n 54), [39].

[57] Falcke (n 11).

[58] Jukier (n 34), 94-97.

[59] Golden Griddle (n 54), [46].

[60] Jukier (n 34), 72.

[61] Aaron X Fellmeth and Maurice Horwitz, Guide to Latin in International Law (OUP 2009), [page number].

[62] Argyll (n 12), 12.

[63] CH Giles & Co Ltd v Morris [1972] 1 WLR 307 (Ch), 318.

[64] Argyll (n 12), 12-14.

[65] Jukier (n 34), 102.

[66] Dargaud Éditeur v Presse-Import Léo Brunelle Inc [1990] RDJ 341 (QCCA), 351.

[67] Golden Griddle (n 54), [56]-[57].

[68] Loews Hotels Montreal Inc v Concordia City Properties Ltd (QCSC, 7 August 1979).

[69] Golden Griddle (n 54), [63].

[70] Jukier (n 43), 101-102.

[71] ibid; Stewart Macaulay, ‘Non-Contractual Relations in Business: A Preliminary Study’ (1963) 28 Amer Soc Rev 55.

[72] ibid, 63.

[73] Argyll (n 12), 16.

[74] Jukier (n 34), 102.

[75] Jeff Berryman, ‘Recent Developments in the Law of Equitable Remedies: What Canada Can Do For You’ (2002) 33 VUWLR 51, 83.

[76] ibid.

[77] Civil Code of Quebec, art 1590.

[78] Sale of Goods Act 1972, s 52.

[79] Jukier (n 34).

[80] ibid, 106.

[81] ibid.

[82] Teubner (n 42).

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