Dame Weinstock v. Blasenstein
et le Procureur G&n6ral de la Province de Qu&bec 1
Charles E. Flam*
Introduction
The Civil Code of the Province of Quebec does not provide for
divorce. Article 185 C.C. affirms the principle of the indissolubility
of marriage. However, the law does permit actions to annul a mar-
riage (Chapter IV in the Title Of Marriage). Some authors feel that
the provisions of Chapter IV, especially art. 148 C.C., have been
interpreted liberally because of the principle enunciated in article
185 C.C. 2 Perhaps, in this way, the institution of divorce is creeping
into the civil law through the back door.
One notices a paradox in this area when the law of Quebec is
compared with that of France. Professor Louis Baudouin points out
that
“on assiste alors b ce paradoxe d’un droit: le droit frangais, qui admet
trop largement le divorce, mais restreint le champ d’application de l’action
en nullit6 pour erreur; et d’un autre droit: le droit qudbecois, dont est
banni le divorce, mais qui 61argit consid4rablement la qualification de
l’erreur en mati~re de mariage, augmentant ainsi d’une fagon d~tourn6e
les chances de dissolution du mariage.”3
Much controversy has centered around one particular provision
for annulling marriage, viz., art. 148 C.C. which states:
“A marriage contracted without the free consent of both parties, or of
one of them, can only be attacked by such parties themselves, or by the
one whose consent was not free.
When there is error as to the person, the marriage can only be attacked
by the party led into error.”
The storm hovers around the meaning of “error as to the person”
or “erreur dans la personne”, in the French version. This comment
will attempt to analyze the problems surrounding this phrase and
to point to a possible solution.
* Of the Junior Board of Editors, McGill Law Journal; second year law
student.
1 C.S., Montreal, No. 607,011, 8 octobre 1964. (Andr4 Demers, J.).
2 See : Baudouin, L., Le Droit Civil de la Province de Qu6bec, Montr6al, 1953,
p. 156.
3 Ibid.
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Facts and Ratio decidendi
In a recent decision of the Superior Court, Dame Weinstock v.
Blasenstein, this discussion arose. The facts are as follows: The
defendant, under the name of Harold Green, was married to the
plaintiff in Montreal. She believed that he resided permanently in
Montreal and that he had an interest in a loan and construction
company. Five days after the marriage, the defendant was arrested
by the Montreal police and was subsequently convicted of fraud. The
plaintiff discovered that the many gifts which the defendant had
given her were paid for with n.s.f. cheques. She also found out that
his real name was Jack Leon Blasenstein and that he had lived in
the State of New York, where he had been convicted of a criminal
offence in 1960.
The plaintiff instituted the present action to have the marriage
annulled, alleging that there was, on her part, error as to the person.
The defendant did not contest the action, but the Attorney-General
for the Province of Quebec intervened.
There was a preliminary issue in this case as to whether the
laws of the State of New York or the laws of the Province of
Quebec should apply. The learned trial judge, Demers, J., held that
those of Quebec were to be applied. This issue, however, will not
be discussed in this comment.
It is submitted that the real issue in this case is the interpretation
to be given to the phrase “erreur dans la personne”. In this case,
Demers, J. held that there was error as to the person and declared
the marriage “nul et annul6 A toutes fins que de droit”. There was
error as to the civil identity of the person of the defendant, viz.,
“la demanderesse a cru 6pouser un nommn6 Harold Green, homme
d’affaires de Chomedey, alors qu’en fait, elle se mariait avec Jack Leon
Blasenstein, un repris de justice.”
Demers, J. states that “erreur dans la personne” includes both error
as to the physical person and error as to civil identity. He rejects
the theory that only error as to the physical person is sufficient
cause to annul a marriage under art. 148 C.C. According to this
theory (which he states is not supported by the text of the law)
there would be error as to the person only when Jacob, wishing to
marry Rachel, marries Lia. He asserts that the law also allows the
annulment of a marriage where the consent is viciated. by an error
as to the civil identity of the person, “lorsque cette erreur a 06
la cause d6terminante du mariage.”
No. 1]
CASE AND COMMENT
Survey of doctrine and jurisprudence
The meaning of the phrase in question is ambiguous. It is suscepti-
ble of both a limited and an extended interpretation. In order to find
out what application should be given to this phrase, it is necessary
to look to the sources of art. 148 C.C. The Codifiers, in their report 4,
cited Pothier, Maiage, 444, 308 and Merlin, R 6p., Mariage, s. 1, no.
2; s. 6, no. 2 as the sources for this provision.
Pothier states, in the portion of his works cited by Codifiers,5
precisely the theory that is rejected by Demers, J. in the present
case. “Erreur dans la personne”, according to Pothier, bears only on
the physical person. If I marry Jeanne, believing her to be Marie,
another physical person, then, and only then, is there “error as to
the person”. Pothier continues,
“si j’ai 6pous6 Marie…
la croyant de bonne renonn6, quoiqu’elle ait
t6 fltrie par justice… le mariage que j’ai contract6 avec elle, ne laisse
pas d’btre valable nonobstant
‘erreur dans laquelle j’ai 4t h son sujet.”6
Merlin agrees with Pothier and also cites the example of Jeanne and
Marie.
Demers, J. states that the theory expressed by Pothier, namely
that only error as to the physical person can give rise to the annul-
ment of the marriage, goes beyond the text of the law. It is sub-
mitted that Pothier’s views on the matter are the text of the law
on this subject.
It is possible that the rejection by Demers, J. of the strict Pothier
theory is partly based on a line of jurisprudence which considerably
widens the meaning of “error as to the person” to include error as
to the essential qualities of the person. The courts have admitted
as errors as to the person, the psychological inability to consumate
the marriage, 7 broken promises, 8 religious misrepresentation, 9 false
representations, 10 an undisclosed criminal record, 11 incurable dis-
ease, 12 etc. With all due respect, it is submitted that these judgments
4 Codifiers’ 2nd Report, p. 290.
5 Pothier, Mariage, 308.
6 Ibid., 310.
7 Scholes v. Warlow, (1927), 65 S.C. 6. Lamothe v. Loyer, [1944] R.L. 177.
Dame Hivon v. Gagnoun, [1962] S.C. 399.
8 Page v. Knott, (1939), 77 S.C. 354.
9 Musgrave v. Covinesky, (1923), 61 S.C. 221.
1O Dame Maguire v. Mooney, (1941), 79 S.C. 172. Dame Benditsky v. X.,
(1939), 77 S.C. 391.
11 D. v. J., [1947] S.C. 143.
12 N. v. E., [1945] S.C. 109.
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were in error. They stem from the 1927 case of Scholes v. Warlow,
where Martin, J. based his decision entirely upon common law juris-
prudence and canon law. In the Province of Quebec, however, these
two systems have no application. Surely it is the Civil law which
must be applied. We must specifically look to the Civil Code and to
the authors cited by the Codifiers. This point is stressed by Challies,
J. in Leibovitch v. Beane.13 The Codifiers have cited Pothier and
Merlin as the authorities for art. 148 C.C. It is the views of these
authors, therefore, which must be followed. It is interesting to note
that most of the recent cases dealing with art. 148 C.C. have upheld
the strict Pothier theory. 14
An apparent compromise has been struck by St.-Jacques, J. in
his notes in Chisholm v. Starnes. 5 He states that error as to the
“individualit6 civile” is sufficient to constitute error as to the person.
This appears to be the position taken by Demers, J. He states,
“l’erreur portant sur 1’individualit6 civile elle-miame peut justifier 1’annu-
lation du mariage dans certains cas.”
The plaintiff was mistaken as to the civil identity of the defendant.
She believed him to be Harold Green. In reality, his name was Jack
Blasenstein. There was, therefore, error as to “individualit6 civile”,
states Demers, J.
It is submitted that the name of the defendant was merely one
of his essential qualities. The fact that the plaintiff believed her
husband’s name to be Harold Green was not the determining reason
for marrying him. She undoubtedly would have married him had
she known him as Jack Blasenstein, all other things remaining the
same. His name was only one of his attributes. The plaintiff mar-
ried the physical person she intended to marry, regardless of his
name. The law, therefore, does not permit marriage to be annulled
under art. 148 C.C. There was no error as to the physical person
in the present case, and the marriage, therefore, should not have
been annulled.
13 [1952] S.C. 352, at p. 360.
14 See: Dame M. v. H. et Procureur gdniral de Qudbec, [1949] B.R. 235.
Procureur gingral de Quibec v. K. et W., [1947] B.R. 566. Yorksje V. Chalpin,
[1946] B.R. 51. C. v. J. et Procureur gindral de Quebec, [1961] S.C. 672.
Bourbeau v. BeIghersa, [1960] S.C. 108. Daigle v. Dame Benoit, [1960] S.C. 45.
B. v. Dame D., [1949] S.C. 406. Beaulne v. Thessereault, [1947] S.C. 24. C. V.
Dame G., [1947] S.C. 298. M. v,. L., [1947] S.C. 138. Whalley v. Kowalyk,
[1947] R.L. 228. X. v. Z., [1947] S.C. 430. V. v. V., [1946] S.C. 84. Page v.
Nantel, [1945] R.L. 257.
15 [1949) B.R. 577, at p. 580 ff.
No. 1]
CASE AND COMMENT
Conclusion
It is suggested that Demers, J. has reintroduced the wide inter-
pretation of “error as to the person” which allows error as to the
qualities of the person to viciate the consent required for a valid
marriage. The Codifiers manifestly did not wish that this interpre-
tation be adopted, for they referred to Pothier and Merlin, both of
whom allow only error as to the physical person as sufficient cause
for annulling a marriage. This is the law, therefore, and it must be
applied in the courts. Considerations of equity may lead one to the
conclusion that a marriage such as the preseiit one should be annulled.
These considerations, however, should not lead one to disregard the
law.
In the field of marriage, there is an old maxim which states,
“en mariage il trompe qui peut”. It would appear that the Codifiers
have adopted this principle. As long as this is the law, therefore,
should not the courts apply it ? It is within the powers of the Legis-
lature, not the courts, to change this law. Proposals for a change
in this area merit profound thought. It may well be that, in certain
situations, it is just and equitable to annul the mariage. The solution
adopted in article 1333 of the German Civil Code is a just one. A mar-
riage may be annuled if there is error as to the essential qualities
of the person, i.e., if the error bears on such qualities which are
so essential that the other party would not have contracted the mar-
riage if he had known of them. If this were the case in the Province
of Quebec, the law would be the same for all, whereas at the present,
it is not. Whether or not the marriage is annulled seems to depend
upon which judge is deciding the case. “I This is not equal justice
for all.
In conclusion, it is submitted that the law as it exists, i.e., as
expressed by Pothier and Merlin, should be applied in all cases. If
a desire to be equitable and just directs one to wish such marriages
annulled, the law should be altered by the Legislature. Even if the
law is to remain the same, the Legislature should undertake some
effort to so state. Uncertainty in this area is particularly objectionable.
Until the law is changed or restated, however, only error as to the
physical person constitutes “erreur dans la personne”. Dura lex,
sed lex.
16 Compare these two cases: C. v. J. et Procureur gdn6ral de Qudbec, [1961]
S.C. 672, and Dame Hivon v. Gagnon, [1962] S.C. 399.
