BOOK REVIEWS
LIVRES NOUVEAUX
Access to the Law, by M.L. Friedland, in collaboration with Peter E.S.
Jewett and LindaJ. Jewett, Toronto: Carswell/Methuen, 1975. Pp.ix. 99, ap-
pendices 97 ($10.95).
This study, conducted for the Law Reform Commission of
Canada, rests on the assumption that, “The state has an obligation to
insure that its laws are available in an understandable fashion to
laymen”.1 Whereas during the past decade legal aid schemes have
made the courts reasonably accessible, little has been done to make
the law accessible. This stimulating and readable book is addressed
to the latter problem.
It is pleasing to note that the authors were aided by a number
of non-lawyers, notably a psychologist, linguists, librarians and many
others. A major feature of the study was its clear and uncomplex
presentation of empirical data. The reader is left to explore much
of the data in greater depth in the appendices, without the imposition
of statistical tests. The authors also make no pretence at being
“scientific” nor do they claim that their social enquiries are ex-
haustive.
In the first survey sixty members of the public in Toronto, twenty
in Kitchener and twenty in Lindsay were approached with a series
of ten relatively simple legal questions, for example; “What would
you do if your landlord refused to fix the leaking roof of your rented
house?”. We are not told how the subjects in the sample were
chosen, except that it is admitted that two-thirds of the total sample
were women. Clearly it was by no means a random sample in the
statistical sense. The percentage of respondents who would seek
information or help from various sources differs markedly from
question to question. Fascinatingly enough, government sources were
indicated in about half the cases, and lawyers were usually avoided.
There was only one instance (involving a deserted wife) in which
more than a quarter of the respondents who sought information
would have contacted a lawyer. In most other cases the percentage
who would have approached lawyers was minimal. In the next stage
of the investigation, two researchers, taking the Toronto data,
telephoned on separate occasions the information source indicated,
1 M. L. Friedland, Access to the Law, 1.
McGILL LAW JOURNAL
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and evaluated the adequacy of the response. It was found that an
average of more than 25% of the sources called gave an incorrect
answer or made a referral which led to an incorrect answer. Some
mistakes were flagrant. For example, the Metropolitan Toronto
Police Department failed to provide a correct recital of section 195.1
of the Criminal Code dealing with soliciting for the purposes of
prostitution, while the Better Business Bureau wrongly advised that
nothing could be done to compel a car repair shop to properly
finish a job, on one occasion abusing the female regearcher and
suggesting that she should have her husband or boyfriend look
after the car!
Two further research exercises were undertaken. In one, lawyers
in private practice, public libraries, neighbourhood information
centres and government and legal aid agencies were consulted on two
matters, a simple landlord and tenant problem and the expunging
of a criminal record obtained after an absolute discharge. It was
found that the groups, lawyers and non-lawyers alike, were gener-
ally equally successful in solving the landlord and tenant question,
but gave equally unreliable advice as to the criminal record pro-
blem. In the other, volunteers among visitors to the Ontario Science
Centre, including a high percentage of students, were requested,
after a brief explanation of how to look up statutes and regulations,
to answer simple problems involving recent statutes and regulations
of Ontario and Canada. The relevant statute books were provided.
Of the thirty-five subjects who participated, only five found a cor-
rect answer to a question.
The reseachers then studied various information sources to find
out the reasons for the difficulties experienced in handling legal
questions and problems. Legal aid offices and assistance clinics,
government information services, community information centres,
police departments and various forms of libraries were visited in
twenty-one cities across Canada. An impressive number of inter-
views were conducted and questionnaires mailed out and analyzed.
The most provocative part of the study presents the authors’
suggestions for a variety of measures to provide better access to
the law in Canada. Most lawyers who have to grapple with such
excessively complicated drafting as that contained in the Bail Reform2
and Income Tax Act3 would have a great deal of sympathy with the
authors’ pleas that statutes must be made less technical and con-
voluted, better indexed, less complex and with a much improved
2 Bail Reform Act, S.C. 1970-71-72, c.37.
3 Income Tax Act, R.S. 1970, c.148, s.1.
19771
BOOK REVIEWS – LIVRES NOUVEAUX
continuous up-dating service. The obvious danger of over-simplifica-
tion in a statute is that the complexity is simply transferred from
the legislative to the much less accessible court process. But it is
clear that the balance requires redress.
The author, however, devoted little time to suggestions of how
to improve other traditional legal research tools such as case reports,
legal textbooks, and encyclopedias. Surely too, computer storage and
retrieval of legal information required at least some comment.
Recognising the need for a basic education of the public about
law the authors support the introduction of law courses in the
schools and adult education centres. Their caveat is that law courses
aimed at non-lawyers must stress the recognition of situations in-
volving the law and methods for discovering the law rather than
attempts at statements of the law at any particular moment. Lawyers
have for years striven to develop the mystique of the law, primarily,
some contend, in their own self-interest, but there is probably some
truth in the view that a smattering of knowledge about law might
be dangerous. The authors point to two practical difficulties at the
moment: the lack of suitable teachers and the lack of texts. The
trouble is, of course, that training and writing will take time.
Underlining the many suggestions made for improving delivery
systems is the need for more organized procedures for dealing with
questions from the public concerning legal matters and for training
the staff concerned. It really seems to be a problem of personnel
management. Clearly if the police are inundated with questions
involving the law they must, as the City of Calgary Police Department
did, set up a special service of experienced police officers. There is
nothing to be gained by the label “para-legal” in this context unless
it is simply a shorthand for a properly informed non-lawyer.
Certainly their most provocative suggestion is that we need an
encyclopedia of law for non-lawyers. They envisage a, “set of
binders occupying perhaps five or six feet of shelf space”,4 that would
be comprehensive, covering all areas of law in detail and requiring
few references to other legal sources. The classifications would be
in subject categories easily recognizable to the ordinary citizen,
about
constantly up-dated, well indexed and comparatively cheap –
$300,000 for the initial costs of producing materials for the first
province. Illustrative sample model entries are included in the ap-
pendices. The discussion of this ambitious venture, promised earlier
in the book, leaves unanswered such connundrums as who is to
4 Supra, note 1, 92.
McGILL LAW JOURNAL
[Vol. 23
write this huge work; how primarily case law areas are to be
covered and at what point the reader should be warned that the
area is complex and a lawyer should be consulted. My own reaction
is that these difficulties and the especially grave one of simplifying
laws without distortion make the idea, however noble, a pipe-
dream. However, if the public is as misinformed about the law at
present as the study so clearly indicates, any effort to overcome the
practical problems of compiling a major work for non-lawyers is
worthwhile and overdue.
Don Stuart*
* Professor, Faculty of Law, Queen’s University.
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BOOK REVIEWS – LIVRES NOUVEAUX
Obligations, Book 2, by Sail Litvinoff, West Publishing Company, 1975.
Pp.xxiv, 618 ($39.00).
The traditional matrix of consensual arrangements is the abstract
notion of correlative rights and duties. It is the mortar of civil code,
articles on conventional obligations which in turn support the titles
concerning contracts 2 gratuitous and onerous, unilateral and bila-
teral. Perhaps it is the pervasiveness of this duty-right notion which
makes the obligations course among the most difficult and challeng-
ing in the curriculum. Mastery of this abstraction comes slowly.
Professor Litvinoff’s latest treatise,
the sixth in the series
Louisiana Civil Law Treatise3 sponsored by the Louisiana State Law
Institute, illuminates many of the problems confronting the student
of obligations. Written in the classical style of doctrinal writers such
as Planiol and Puig-Brutau, this volume and its companion first
volume form the single most comprehensive contribution to Louisia-
na scholarship on obligations. Equally important, the two volumes
are major English contributions to the general comparative literature
on the subject of obligations.
The volume under review is divided into fifteen chapters. In
traditional fashion, it opens with a chapter on general principles.
Chapters 2, 3, 4, 5 and 7 treat obligations to give and the transfer of
ownership. Chapter 6 focuses on the bona fide purchaser doctrine,
chapter 8 deals with transfer of risk, chapter 9 deals with obligations
to do or not to do, and chapters 10 through 15 constitute an exposi-
tion of putting in default. The volume ends with several tables of
case citations and statutory materials and an impressive bibliogra-
phy of general works on obligations and legal theory.
‘ This statement applies equally to the Louisiana Civil Code and civil codes
of nations and provinces that received and codified the Roman law.
2 1 limit the scope of the duty-right concept to contracts to avoid hazy
problem areas such as statutory duties of filial devotion. But a strict positivist,
invoking the maxim ubi ius ibi remedium, could regard the entire fabric of law
as no more than correlative rights and duties.
3 The other volumes are: Volume 2, Yiannopoulos, Civil Law of Property:
Things, Real Rights, Real Actions (1966); Volume 3, Yiannopoulos, Personal
Servitudes: Usufruct, Use, Habitation (1968); Volume 6, Litvinoff, Obligations,
Book I: General Theory, Classification of Contracts, Formation of Contracts
(1969); Volume 10, Oppenheim, Successions and Donations and Volume 10,
part 6, Nathan, Louisiana Inheritance, Estate Transfer and Gift Taxes (1973).’
An excellent discussion of the Law Institute’s publications appears in Dainow,
Civil Law Translations and Treatises Sponsored in Louisiana (1975) 23 AmJ.
Comp.Law 521.
McGILL LAW JOURNAL
[Vol. 23
The volume is an important contribution to general comparative
literature principally because of the analytical framework within
which the author presents his topic. For example, he opens the
discussion of the suspensive condition with a general presentation
of the problems it presents and then refines his analysis by moving
serially to the positions of Louisiana jurisprudence, French juris-
prudence, the jurisprudence of other civilian jurisdictions, and the
common law (64-67). For the English-speaking lawyer needing a
comparative overview of special topics but unschooled
in the
requisite foreign languages and literature, Professor Litvinoff’s work
is a natural research tool.
For all its erudition and lucidity, however, the book leaves me
with a disquieting sense of the opaqueness of this imporant legal
subject and of its distance from ordinary human experience. This
sense, I suggest, results from the author’s typically modern oscilla-
tion between two poles of argumentation: formal rule exegesis,
which interprets the code articles quite literally (tacitly assuming
their beneficence and neutrality) and value judgments which make
no such assumption. These judgments are instead based upon a
subjective balancing of competing interests and suggest an enlarged
scope of social cooperation beyond the radius envisioned by the
codifiers. The word “subjective” as used here is not pejorative; it
merely suggests that these judgments derive their force more from
an intuitive sense of fairness than from specific enactments.
Given the combination of intellectual gymnastics and subjective
value judgments needed to explain certain institutions and doctrines,
one wonders if an intelligent, well-intentioned person would behave
according to the prescribed legal norms even if he knew them and
wanted to follow them. This is not a criticism directed particularly
at Professor Litvinoff’s work, but rather, an
indictment of
legal technicality. The law cannot lose its intelligibility and keep its
legitimacy in the layman’s eyes. The remainder of this review
illustrates the oscillation describe& and offers some tentative ex-
planations for it. I do not suggest any escape from the oscillation,
which seems a permanent feature of contemporary legal experience.
4 This is the classical philosophical distinction between deontological and
teleological reasoning. In the former, the legitimacy of a command, such as a
biblical commandment, is assumed a priori without regard for the conse-
quences of its execution. In the latter, the legitimacy of a command hinges
upon its consequences.
19771
BOOK REVIEWS – LIVRES NOUVEAUX
The instability of subjective moral assertions
Subjective moral prescriptions abound in the sections treating
notions central to the theory of obligations: good faith and abuse
of right. A shift away from the classical creditor-debtor antagonism
and toward increased cooperation is notable in the sections which
follow 5
Section 4. GOOD FAITH
According to traditional doctrine, as a contract engenders a credit-right
in favor of one or both of the parties, this right will automatically pro-
duce consequences through the operation of such additional rights as
the right to demand performance and the right to recover damages. A
contract, however, not only ought to be but actually is performed other-
wise. In modern times, the emphasis once placed upon the individual end
pursued by each of the parties has been shifted to the end pursued in
common by all the parties, as if every contract were a joint venture –
almost a partnership – where the idea of opposed interests dividing the
parties yields to the idea of a certain union of interests among them.
Thus, insofar as the expected performance is concerned, the creditor is
no longer a creditor without more; he also becomes a debtor with a duty
of collaboration, an obligation to cooperate in the attainment of the
mutual ends, which need no longer be accomplished solely through the
means originally conceived by the parties but may be achieved by other
means supplied by the will of the parties or by judicial fiat. The door
is thus opened for the modification of contracts.
The principle of good faith, so broadened in this modern approach, may
serve to remove harshness sometimes implicit in the obligor’s necessity
to perform. The question will be: should the obligor be held to perform
exactly what he has promised or only what is necessary for the attainment
of contemplated mutual ends? The answer is clear once it is accepted
that obligations do not exist for their own sake but for the accomplish-
ment of societal ends which are focused, mainly, on the usefulness -of
results (pp.6-7).
Section 5. CREDITOR’S DUTIES
It is the creditor’s obligation not to overburden his debtor but to facilitate
his performance through positive action. Moreover, he must do whatever
is required of him, in order to enable the debtor to perform; hence the
doctrine that the creditor’s default releases the debtor from liability to
damages (p.9).
The creditor owes a duty not to abuse his right; prerogatives arising out
of contracts should not be exercised in an unrestrained fashion. … Where
the creditor is a professional man, he owes his debtor the benefit of his
superior knowledge and experience, and therefore he ought loyally to
warn the other about conditions or consequences of the contemplated
performance (p.10).
51 quote at length to give readers a sense of Litvinoff’s style and to allay
concerns that his arguments are out of context.
McGILL LAW JOURNAL
(Vol. 23
In these passages the subjectivity of Professor Litvinoff’s value
choices is apparent. One wonders if a hardbargaining professional
would necessarily subscribe to Professor Litvinoff’s suggested duty of
disclosure to his debtor. Is the notion of a contract as a “joint ven-
ture” to achieve societal ends clear? What is clear is that the quoted
passages rest upon a modernized vision of increased social res-
ponsibility in a market place in which the strict exercise of absolute
rights is tempered by social needs.
The frustrations of technical analysis
To glimpse Professor Litvinoff’s analytical prowess at its best,
consider his explanation of the lay-away sale, a modern security
device designed to promote credit transactions.
The conventional “lay-away sale” is an agreement between the buyer and
seller looking toward a transfer of ownership in property. The parties
usually agree as to some specific thing, which is laid aside by the seller,
until the buyer pays the price. However, it sometimes happens that only
a class of thing is agreed upon, with no specific thing being appropriated
until the time of delivery. Because of the buyer’s inability to pay the
full price in cash, the seller extends a period of credit, but retains
possession of the thing until the price is paid in full. Most lay-away
agreements provide for a fixed amount to be paid in regular installments.
It is sometimes provided that if the buyer defaults in payment, the
amount paid toward the price will be forfeited, and the thing returned to
stock for resale. It is the custom of seller, however, to give notice of
default to the buyer before such action is taken (p.111).
In such a sale, a major question is when title and risk of loss pass
to the buyer.
“To find a right approach to this problem”, argues Professor
Litvinoff, “it becomes necessary to determine the type of agreement
the ‘lay-away sale’ purports to be. He continues:
If it is intended as a sale in which the buyer becomes bound to pay the
entire price while the seller retains possession of the goods, then it
would seem that … title should pass immediately to the vendee. If on the
other hand, the agreement contemplates merely that the prospective
purchaser will put some money down on the object he wants to buy,
and the owner will hold the object aside so that the former can acquire
the thing – possession and title –
later if he so desires, then the agree-
ment resembles an option and the prospective purchaser, quite clearly,
will not become owner until he exercises the option.
… While the purchaser can be regarded as entering into a contract with
a store to purchase the thing that is “laid away” it is not entirely clear
that he ever becomes bound to pay the total price; it would seem that he
does not. Usually it is understood that if the purchaser should decide not
to buy the thing, he can simply forfeit what he has already paid. In such
an approach, the amounts paid by the prospective purchaser rather than
1977]
BOOK REVIEWS – LIVRES NOUVEAUX
“consideration” given for an option, would resemble a deposit of earnest
money in a contract to sell. Considering the marked dislike of Louisiana
courts for “lopsided” agreements, they would probably regard such a
version of a “lay-away sale” as a sale with reservation of title, and hold
that ownership is transferred to the vendee upon the making of the
deposit. It is not difficult to see that such a solution is highly undesirable
with respect to risk of loss. It does not seem that in transactions of this
kind .the parties intend that any loss occasioned by a fortuitous event
should ,.be borne by the purchaser. The selling store usually carries
adequate insurance to cover such losses, and if the “laid-away” goods are
reflected in the premiums paid by the seller, the insurer would receive
an ufristifiable advantage if the loss was placed upon the buyer and the
insurer was thus relieved of any obligation to pay (p.112) (emphasis
added).
Here Professor Litvinoff’s subjective interest balancing and rule
exegesis collide head-on. Certainly he is uncomfortable with literal
interpretation of the code. So he moves to arguments of fairness.
Nevertheless, it is unclear why the insurer’s advantage would be
unjustifiable if the insurer cut the retailer’s premiums in recognition
of real savings which he could then pass to the consuming public in
the form of lower prices.
Professor Litvinoff’s conclusion frustrates the reader and suggests
the author’s own consternation:
In sum, although no “lay-away sale” has yet been analyzed by a Louisiana
the prior jurisprudence concerning sales with reservation of
court, …
of title give strong reason to believe that, in Louisiana, title would be
held to pass to the vendee in transactions of this kind. Neither proper
reasoning nor sound public policy, however, lends support to such a
solution (p.11 3 ).
A tentative diagnosis
The oscillation between argument based on classical exegesis and
argument derived from subjective value choices is an inevitable
consequence of the quest for two opposing ideals in rulemaking:
formal symmetry of results in all cases of a certain class and subs-
tantive fairness (however intuitive and amorphous the term seems)
in any particular case of the class. According to traditional civil law
doctrine, a set of formally precise rules should yield predictable
results in a given class of cases. But the search for fairness subverts
an absolute commitment to formal symmetry. For example, a judge
may realize that a case of a certain class presents mitigating factors,
e.g., the buyer in the lay-away case may have paid installments faith-
fully, the destruction of the object was not attributable to the
seller’s neglect, the insurer has been unjustifiably enriched. In such
a case, the harsh result dictated by mechanical application of the
maxim res perit domino cries out for tempering and modification.
McGILL LAW JOURNAL
[Vol. 23
And to promote the lay-away sale as a device for encouraging the
extension of credit, a judge could easily rationalize such modification
under the special circumstances I have suggested.
Legal formality6 and the supreme legislator
In contemporary civil law jurisdictions, the quest for formal
symmetry in adjudication and legislation is associated with the
eighteenth century rationalist view that human beings could write
down and codify an entire scheme of laws to govern all their relation-
ships. At a deeper level, a coherent formal framework was seen as
necessary because of a deeply pessimistic vision of men as highly
individualistic, insatiable wills, randomly exchanging some objects
for others.1 These wills could be restrained by nothing less than a
positivist state, represented by a superhuman impartial legislator,
an evil necessary to fend off anarchy.”
To express the general will in positive enactments, this super-
legislator theoretically must transcend the competing demand, of
particular interests.’ His neutrality was the source of public respect
and hence of his apparent legitimacy.’0
The binding effect of the supreme legislator’s laws was predicated
on their formality. In other words, the laws should be generally
applicable to all citizens of the state (the notion of erga omnes); 1″
autonomous and independent of socio-economic pressures and offi-
cial caprice; publicly known or knowable, and positive, that is,
enacted by a duly constituted body. This system of formal rules was
designed to hedge in the actions of officials and to avoid their
arbitrary behavior.
6 Provocative contemporary treatments of legal formality appear in Unger,
Law in Modem Society (1976), 203-16 and Kennedy, Legal Formality (1974) 2
J. Legal Studies 351. This book review, in a sense, attempts to test certain
of Unger’s and Kennedy’s arguments by placing them in a civil law setting.
7 See e.g., Hobbes, Leviathan, vol.1, ch.13-14, “Of the Natural Condition of
Mankind as Concerning their Felicity and Misery”, in Molesworth (ed.), 3
The English Works of Thomas Hobbes (1839), 110-17.
8 Compare e.g., Rousseau, The Social Contract (1964), ch.7, “The Legislator”,
42-43 with Portalis’s depiction of the legislator in Levasseur, Code Napoleon
or Code Portalis (1969) 43 Tul.L.Rev. 762, 767. A concise treatment of legislation
as an “embodiment of wills” appears in Herman, Excerpts from a Discourse
on the Code Napoleon by Portalis (1972) 18 Loy.L.Rev. 23.
9 See Rousseau, supra, note 8, 30-31.
1OThe following question shows the fictional nature of the legislator’s
neutrality: How can a “neutral” legislator, conscious of gross maldistributions
of wealth, sanctify the institution of private property?
“1 A short English introduction to this notion appears in Merryman, The
Civil Law Tradition (1969), 141-47. See also Rousseau, supra, note 8, 39-40.
19771
BOOK REVIEWS – LIVRES NOUVEAUX
The formality of the system permitted its interpreters, executive
officers, judges and doctrinal writers alike, to justify their legal
conclusions by reference to the hermeneutical interaction of the rules
themselves12 without regard for value choices involving fairness or
utility. But purely formal exegesis, which assumes the moral right-
ness of a code, finds a natural antagonist in the intuitive sense of
justice in a particular case. Because this sense of justice cannot
be codified in a body of generally applicable rules, the formalist
would regard it as dangerous and tyrannical. This antagonism per-
vades Litvinoff’s treatments of good faith and abuse of rights, in
which he sacrifices formal rules in favour of increased social co-
operation reached by subjective interest balancing.
Unger has recently offered an explanation for this radical shift
to moral assertion and value judgment in contemporary legal ex-
perience. In his view, the harshness of formal rule application gener-
ates “a greater willingness to regard as part of the law certain
moral conceptions insusceptible of development and application
consistent with ideals of generality and autonomy. For these con-
ceptions cannot be reduced to rules or divorced from views of
moral obligation”.’ 3 In private law, Unger suggests, two such moral
conceptions are good faith and abuse of rights. Both conceptions
present an insoluble dilemma for they moderate the unrestrained
opposition of the wills of the parties; in each case, they require the
creditor and debtor to find “a mean between the principle that one
party may disregard the interest of the other in the exercise of his
own rights and the counter principle that he must treat those in-
terests exactly as if they were his own”.’ 4 Professor Litvinoff’s dis-
cussions of good faith and abuse of right reflect his struggle toward
that mean. They also signal an abrupt break from the uncontrolled
wills of laissez-faire economics, and toward restraint upon indivi-
duals in the market place. In his quest for the ideals of formal
symmetry and fairness, Professor Litvinoff has intertwined an inno-
vative vision of social responsibility with lucid doctrinal writing.
His latest treatise merits careful study.
Shael Herman*
‘2 This approach is evident in Kelsen, Pure Theory of Law; its method and
fundamental concepts (1934) 50 L.Q.R. 474.
Is Unger, supra, note 6, 210.
14 Ibid.
* Professor of law, Loyola University, New Orleans.
McGILL LAW JOURNAL
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Mariage, sdparation, divorce, l’dtat de droit au Qudbec, by Sean Pineault,
Montreal: Les Presses de l’Universit6 de Montr6al, 1976, Pp.289 ($11.50).
Classical jurisprudential writing in the Province of Quebec has for
a long time been pre-occupied with the exposition and detailed
analysis of individual sections and articles of the Civil Code and re-
lated statutes. Now that Mignault, Langelier and Trudel have left be-
hind a firm foundation for the basic understanding of the codified
law, authors are becoming increasingly concerned with a conceptual
or problematic approach to the law. It has been largely due to the
university law faculties, such as Laval and the University of Montreal,
that recent years have seen the emergence of several volumes dealing
with specific aspects of the civil and administrative law of Quebec.
Although some of these books have tended to be elementary and
student-oriented in scope, they have nevertheless provided an up-to-
date review of current problems facing both the practitioner and
the academic.
Jean Pineault, author of Traitj glimentaire du droit civil, La
famille, has now published a new version (not a second edition) of
his previous work, which probably represents a new departure in
legal writing in this province. It appears that the author’s intention
is now to direct his new work toward the practising lawyer by
discussing more jurisprudence and sharpening his focus on more
current practical problems.
The book provides a fine overview of the social and juridical
relevance of the family structure and analyzes a variety of questions
including formalities of marriage, familial rights, statutory provi-
sions for rupture of the family unit, as well as the rights of parent
and child. The volume is very well indexed and touches on most of
the basic court decisions in the area in a current fashion. The
views expressed, for the most part, represent the present law as
decided by appellate courts.
One of the more interesting points with which the author deals
is the question of the validity and effect of a pre-separation or pre-
divorce agreement which purports to provide for a complete settle-
ment and a discharge of all alimentary obligations owing from one
consort to the other. The author notes that the Quebec Court of
Appeal’ has held that such an agreement is not a transaction in the
‘Mdnard v. Ricard (1974) CA. 157.
19773
BOOK REVIEWS – LIVRES NOUVEAUX
sense of article 1918 C.C., although some judges of the Superior Court
have insisted on applying the term2
If we look to the provisions on transactions, the Civil Code
determines that such contracts generally terminate a lawsuit already
begun or prevent future litigation by means of concessions or re-
servations made by one or both parties.3 Although a transaction
has, between the parties to it, the authority of a final judgment,
such agreements may be nullified or modified in the light of the
subsequent discovery of documents of which the parties were in
ignorance if such documents have been deliberately concealed.4 It
is probably correct to reason that subsequent modifications of
pre-divorce agreements, if classified as transactions, are impossible
unless the very strict qualifications contained in the transaction
provisions of the Civil Code are followed. These agreements may be
most accurately described as transactions with an implied condition.
The implied condition provides that the agreement continues only
as long as the present financial situation of the parties remains
the same. In a decision of the Court of Appeal reported after the
publication of Pineault’s book, the Court of Appeal reviewed a pre-
divorce agreement providing for an annual alimentary payment by
one consort to the other which stipulated:
This Agreement shall persists so long as the present financial situation
of both parties remains substantially the same.i
While the Court had previously considered such agreements simply
as an important factor in determining the quantum of alimony,6
Blanger J. noted:
Je suis d’accord que les deux contrats originaires ont consacr6 les droits
des parties suivant les circonstances qui existaient au moment oi
ils
furent consentis:
ils doivent servir de point de depart fourni par les
parties elles-mPmes pour les modifications futures devenues ndcessaires
cause des changements survenus depuis dans leur 6tat … . En somme,
les deux parties avaient pris des positions incompatibles avec les deux
contrats originaires, ce qui ndcessitait l’intervention de la Cour.7
A recent decision of the Superior Court s continues to view pre-
divorce agreements as legal transactions, but has adopted a greater
flexibility in the interpretation of article 1921 C.C., which provides
2 Dussault-Caron v. Caron (1974) C.S. 45.
3 Art.1918 C.C.
4 Art.1925 C.C.
5 Stevens v. Stevens (1975) C.A. 113.
I Mgnard v. Ricard, supra, note 1, 159.
7 Stevens v. Stevens, supra, note 5, 114.
8 Cyr v. Dionne (1975) C.S. 940.
McGILL LAW JOURNAL
[Vol. 23
that the transactions may be annulled for the same cause as con-
tracts generally.9
Although Pineault has addressed his forward primarily to students
and not to practitioners, certain aspects of family law are neglected.
One would have thought that a discussion of the legal problems of
the present-day Quebec family would place some emphasis on re-
ligious matters. The book, however, limits itself to a general review
of the effect of religious formalities prescribed by the Civil Code.10
There is no exploration of the implications of a recent Court of
Appeal judgment” in which the Court held that a father was not
entitled to obtain the custody of his child for the sole reason that
the mother had effected his conversion from one religion to another.
The Court was of the view that notwithstanding the importance of
religious instruction in our society, it is in the best interest of a
child of tender age that daily physical needs be given utmost pre-
ference and attention. A more interesting question has arisen in
Manitoba where one consort sought by way of injunction to force
her husband to submit to a religious divorce, which was a prerequi-
site for religious remarriage. 2 While the Court of first instance agreed
that such injunction should issue, the Manitoba Court of Appeal
held otherwise on the grounds of separation of Church and State. 3
9 But see Lgtourneau v. Fortier (1975) C.S. 308, 309: “Le droit aux aliments
est certes primordial mais il rev~t d’un caract~re particulier puisqu’il se rat-
tache h une obligation naturelle et h une institution qui, quoique de plus en
plus disloqude, et peut-6tre m~me anachronique d6borde encore les cadres
du droit purement priv6 dans notre rdgime: c’est la famille. C’est pourquoi ]a
Cour supdrieure n’est pas en la mati~re lide par une entente entre les parties
contrairement h la situation qui existerait dans le cas d’un contrat de trans-
action….”
10 -art.127 C.C. et seq.
11 Bockler v. Bockler (1974) C.A. 41.
12 Re Morris and Morris (1974) 42 D.L.R. (3d) 550 (Man.C.A.): Jones and
Bissett-Johnson, Re Morris and Morris: A Case Comment (1977) 23 McGill
L.J. 110.
1″ Ibid., 568 per Guy J.A.: “I am of the view that the law relating to marriage
and divorce in Canada is a Canadian civil matter and cannot be allowed to
become uncertain or schismatic by reference to various sects or religions. I
am aware that the Roman Catholic Church does not recognize divorce in any
form. It appears that the law of Moses and Israel recognizes a Canadian
divorce only as a reason for obtaining a rabbinical court bill of divorcement.
In the United States of America, various States have varying rules or standards
relating to grounds for divorce –
from cruelty, and bestiality to adultery, or
mere incompatibility. That is not the concern of a Canadian Court. We are
bound to administer the law of Canada as it is written, and the power of the
civil Courts of justice should not be extended to assist rabbinical courts or,
indeed, any religious sects, to enforce their orders. The administration of
19771
BOOK REVIEWS – LIVRES NOUVEAUX
The question which remains, in Quebec at least, is whether or not the
Courts will uphold the primacy of religious instruction or religious
behaviour with respect to custody of children and other related
matters, especially where the marriage contract or intervening
covenant stipulates the submission of the parties to religious law.
Another aspect of current practice of great concern is the
real import of the marriage contract in the light of a severe in-
crease in the rate of divorce in the Province of Quebec. A topical
issue, which receives little attention in the book, is the validity of a
clause inserted by many notaries in modern marriage contracts,
which stipulates:
In the event of divorce, provisions of the present agreement providing
for benefits accruing to the wife from the husband shall be deemed to
be unwritten and non-existent.
Although the Courts have not yet decided the issue, it is probably
fair to say that there is a certain amount of judicial hostility to any
term or condition which abruptly deprives the wife of compensation
for foregoing the benefits of community. The clause as drafted is
especially objectionable since it sanctions the acts of a “guilty”
husband who subsequently constitutes himself petitioner in divorce
alleging such grounds as de facto seperation for a period of five
years. Another objection to the clause is that it attempts to annul the
marriage contract retroactively without altering the regime of the
parties from separation of property to some form of community.
If the Court does uphold the validity of the clause, we may very well
see creative judicial pronouncements
to the effect that the re-
troactivity of the annulment of the benefits of the marriage contract
legally effects a change of regime to a form of community.’ 4
In summary, the author has displayed an admirable competence
in dealing with the subject matter presented. The book should both
prove sufficiently popular with those practitioners who have been
seeking a more detailed treatment of jurisprudence than that con-
tained in the author’s previous volume, and be adequately clear to
students exposed for the first time to the complexities of family law.
Lazar Sarna*
justice in Canada, in so far as it relates to divorce, should be concerned
solely with civil law, both statute and common. The religious courts have
their own rules and powers and they enforce them in their states, but they
should not ask this country to depart from its own valid legislative enact-
ments.”
14See the wording of art.1260 C.C. although the formalities of the art.1266
C.C. et seq. might have to apply mutatis mutandis.
* Of the Montreal Bar.
McGILL LAW JOURNAL
[Vol. 23
A History of Contract at Common law, Canberra by S.J. Stoljar: Australian
National University Press, 1975. Pp.xi, 221.
The call to “get back to basics” is often heard today. In the
context of legal education this must entail, in large part, a return to
the study of legal history, which at present receives scant attention in
Canadian law schools.
A greater concentration on legal history can be viewed in two
ways: as a background to the study of law in a general sense, and as
an aid to understanding the development of specific law school sub-
jects. It is in the context of the latter that Stoljar’s book is of value.
Coincidentally, A.W.B. Simpson’s recently published book A History
Of The Common Law Of Contract: The Rise Of The Action of Assump-
sit on the same subject, is longer but covers a shorter time period –
up to 1677, the date of the Statute of Frauds.
In the space of 220 pages Stoljar covers the development of the
law of contract at common law through almost 700 years, up to
1875, from covenant to consideration. As a result, attention to detail
and in-depth analysis are somewhat lacking, at least in comparison
to Simpson’s book, which allots 600 pages to some 500 years. Never-
theless, there is ample material from which the student of contract
may benefit. The examination, discussion, and explanation of the
development of the law of contract to the present time are of value
to all serious students of contract.
The development of the promissory nature of contractual rights
and liabilities, and the growth of the significance of consideration,
are discussed in an informative and imaginative manner. Particular
points of interest, the derivation of the “past consideration is no
consideration” rule, privity, and aspects of quasi-contract are dealt
with in a lucid and effective way, as are performance and the doc-
trines of substantial performance and frustration.
While this book will be of value and interest to lawyers, whether
they be legal historians or not, it is perhaps unfortunate that there
is not a greater emphasis on the importance of sociological, econo-
mic, and political considerations in the development of the law of
contract. Only by seeing legal history in its social context can the
institutions still with us today be fully understood within the mosaic
of contemporary law. There can be no doubt that the book is schol-
arly, interesting, and valuable and compact enough for use by stud-
ents as well as teachers.
19771
BOOK REVIEWS – LIVRES NOUVEAUX
Like Simpson’s book, Stoljar’s is doctrinal in nature, with con-
sequent strengths and weaknesses. The particular weakness is a
lack of attention to the extra-legal context within which the legal
development occurs. The strength lies in the wealth of information
in a readily available form.
If there is to be a return to basic issues in curricula and if the
study of legal history is to regain at least some of its old pre-eminence
Stoljar’s book is assured of a place of importance. Even if the study
of legal history is not to become more important, the book will still
be valuable for its contribution to legal scholarship.
C.S. Axworthy*
* Associate Professor, Faculty of Law, Dalhousie University.
McGILL LAW JOURNAL
[Vol. 23
Treaty Law in Canada, by A. Jacomy-Millette, Ottawa: University of
Ottawa Press, 1975. Pp.xvii, 431 ($12.00).
Originally written in French in 1966 as a doctoral submission
and published in 1971, Dr Annemarie Jacomy-Millette’s work has
been translated by Thomas V. Helwig, and after having undergone
extensive revision and some updating has been published in paper-
back form by the University of Ottawa Press. The result is a well-
organized and complete treatment of the Canadian law of nego-
tiation, ratification and implementation of international treaties.
The issues analyzed are placed in their proper historical context
and discussed at each level of law making: the Executive branch of
government and the formulation and conclusion of international
treaties; the legislative functions of ratification and implementation;
and the role of the judiciary in the application and interpretation
of international agreements affecting Canadian domestic law. Each
stage is examined in a comprehensive and systematic manner and
lengthy illustrative appendices are included as examples of Canadian
government in action in the international sphere.
There can be no criticism of the scholarly and valuable academic
treatment which this subject matter is given by the author. The
manuscript retains basically a thesis format and authority for most
is contained in extensive footnotes. For the
legal propositions
serious researcher Dr Jacomy-Millette’s book is essential as an
authoritative statement of the law and a source of bibliographical
material. However, the casual reader or interested observer might
do well to consult Gottlieb, Castel, Bernier or the recent multitude
of legal periodical articles on the subject. No major legal issue raised
by Canada’s activity in the international arena has been excluded
from analysis.
After a short historical summary highlighting significant dates
and events in the acquisition of the treaty-making power by a
Canadian nation-state, separate and distinct from the British Foreign
Office, the inevitable conclusion is reached that despite Canada’s
attainment of full international sovereignty the federal government
has but limited power to implement treaty obligations. The Statute
of Westminster’ and the Labour Conventions Case2 forced the federal
government to limit the effect of international agreements on do-
mestic law whenever the subject-matters of such agreements would
‘Statute of Westminster, 1931, 22-23 Geo.V, c.4. (U.K.).
2 A.G.Can. v. A.G.Ont. [1937] A.C. 326 (P.C.).
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BOOK REVIEWS – LIVRES NOUVEAUX
have entailed encroachment on the legislative sphere of the provin-
ces. The making and implementing of treaties under the Canadian
federal system requires cooperation from both levels of legislative
government. This major current dilemma facing Canadian inter-
national policy-makers forms the basic theme of the book.
The problem of the divided treaty power has been an important
political issue in federal-provincial relations during the last ten
years. The book focuses on this particular dilemma directly by ex-
amining the legal and political reasons for the future contraction
or expansion of provincial and federal jurisdiction in this area.
Quebec’s claims for expanded jurisdiction in international affairs
has been frequently explored in recent times and the author’s con-
clusions and proposed solutions are not innovative. The issue of
international activity by individual provinces may assume a more
prominent position in future discussions on Confederation in the
light of recent political developments in Quebec. Dr Jacomy-Millette’s
treatment of this particular facet of treaty law is too theoretical to
be considered 4 definitive prediction of the course of future events.
Her conclusions are acceptable but her legalistic method of analysis
may be unrealistic when viewed in an overall perspective. Legalism
may well be obliged to play a secondary role to pragmatism and
political expedience in the search for future solutions.
The author examines Parliament’s role of supervision of the
executive through its power of ratification of international agree-
ments and, if necessary, actual enactment of appropriate statutory
law. The nature and form of Parliamentary participation is dis-
cussed in relation to the various types of treaties affecting both the
international political order and the international and national
legal structures. The effect of treaties on Canadian law is analyzed
in relation to specific subject areas; peace, boundaries, individual
right, intellectual property, public finance and concerns of the
native population. Principles and rules of law are formulated within
each particular context.
While, judicial decisions on the major issues are analyzed
throughout the book, the final sections attempt to place the issue
of the judicial function in its overall perspective, including the con-
flict between treaties and Canadian law. Recognizing the traditional
treatment given to international law in the domestic setting the
author illustrates the judicial adherence to “dualistic” theory rather
adequately while attempting to analyze the possible ramifications
of decisions like the Offshore Minerals Reference3 on this particular
3 Re: Offshore Mineral Rights of British Columbia [1967] S.C.R. 792.
McGILL LAW JOURNAL
[Vol. 23
problem. Permanent cooperative federal-provincial machinery to
monitor international activity and an expanded role for the Su-
preme Court of Canada are proposed.
On the whole this book is a well-developed, well-researched
reference tool for anyone desiring a full understanding of the relation-
ship of treaties to the various governmental functions in Canada.
Organized in the form of numbered paragraphs with summaries
interspersed throughout the various subdivisions of the subject
matter, the book would be suitable as a supplementary teaching
aid, although its wealth of detail makes it unsuitable as a basic
teaching tool. The book suffers from repetitiveness, perhaps as a
result of the paucity of legal decisions with direct implications for
the law in this field. Some attention is given to a jurisprudential
analysis of the important legal decisions, and the author appears
to regret Canada’s continuing acceptance of British theories con-
cerning the relationship of international and domestic law. One
should note that the closing date for research appears to be late
1974 and that recent events have the potential to modify much of
the existing law. The “watertight compartments” of the B.N.A. Act,
18674 may soon give way to more fluid constitutional and inter-
national conceptions of the Canadian nation-state. A new constitution
would most surely address the issue of treaty-making, and Dr
Jacomy-Millette may feel confident that her research and analysis
will contribute to the final determination of the question.
C. J. Wydrynski*
4 30-31 Vict., c3 (U.K.).
* Assistant Professor, Faculty of Law, University of Windsor.
