McGILL LAW JOURNAL
[Vol. 6
LATOUCHE v. LAHOUILLIER
DPFAUTS
VENTE DE MAISON –
ACQUIESCEMENT DU VENDEUR –
ACTION
NoUVEAUx RAPPORTS CONTRACTUELS
ENT DOMMAGES-INTtRfTS OU EN DIMINUTION DE PRIX – DtLAI – DILIGENCE
— ARTICLES 1522, 1526, 1527 ET 1530 C:C.
– MISE EN IEMEURE DE LES REPARER –
REPARATIONS COMMENCPES – DPFENSE –
ACTION REDHIBITOIRE –
–
BOUTIN v. PARE
RESPONSABILITE –
VENTE D’UN ANIMAL ATTEINT DE BRUCELLOSE
–
CON-
TAMINATION D’UN TROuPEAu
JUGEMENT PARTIELLE
TARDIVITA DE L’ACTION NON PLAIDE
1527 ET 1530 C.C.
DOL –
–
FAUTE RECONNUE PAR CONFESSION DE
DOMMAGES DIRECTS ET IMMtDIATS –
–
ARTICLES 993, 1053, 1065, 1075,
In two recent cases, Latouche v. Lahouillier,1 and Boutin v. Par6,2 redhibitory
actions were undertaken by the plaintiffs in accordance with the provisions of
art. 1530 C.C., which states:
The redhibitory action, resulting from the obligation of warranty against latent
defects, must be brought with reasonable diligence, according to the nature of the
defect and the usage of the place where the sale is made.
In the case of an animal stricken with tuberculosis, the redhibitory action shall be
deemed to be brought within a reasonable delay, if so brought within ninety days
of the delivery, and in such case, the burden of proof that the animal was not
so stricken at the time of delivery shall lie on the vendor.
In both cases the defense of lack of reasonable diligence was not expressly
pleaded by the vendor. The Latouche case held that such a plea was not
that it was, both decisions
the Boutin case concluded
necessary, ‘whilst
emanating within a few months of each other.
In the Latouche case the defendant in the Superior Court appealed against
a decision maintaining a redhibitory action annulling his sale of a house.
On appeal it was contended that plaintiff-respondent’s original action was
“tardive”, and was not exercised with the reasonable diligence demanded of
such actions by art. 1530 C.C. The respondent replied that such defense must
be expressly pleaded, and was not so done, and thus could not be admitted,
In upholding the appellant. and reversing the judgement of the Superior
Court, St. Jacques J., speaking for the court, reasoned that the absence of an
express plea of lack of reasonable diligence does not prevent it from being raised.
1(1959] Q.B. 26.
2[1959] Q.B. 459.
No. 21
CASE AND COMMENT
He explained3 that the court should appreciate the circumstances and decide
if there was diligence according to art. 1530 C.C. This decision, then, coincides
with the jurisprudence which maintains that the diligence outlined
in this
article does not have to be expressly pleaded and can be raised by the court
Suo Motu.
The contrary was held in Boutin v. Par& Here the plaintiff purchased a milk
cow from the defendant. After its addition to the herd, it was found to be
infected with an animal disease called “brucellose”, causing considerable
darhage to the purchaser’s other animals. The purchaser sued under art. 1530
C.C., and appealed to obtain increased damages.
Speaking for the court, Bissonnette J. 4 repeated the contention of the trial
judge that what is reasonable diligence is a question of fact and not of law.
He noted that the right of action does not fail under art. 1530 C.C. simply
because it is not entered into with diligence. For this to occur the defendant
“devait plaider ce moyen en l’appuyant de la nature de vice et des usages
gtn6ralement connus et admis en pareille matiire”.
Why such judicial discord? Simply because the courts are applying the
“reasonable diligence” under discussion, in the light of art. 2188 C.C., which
states:
The court cannot of its own motion supply the defence resulting from prescription,
except in cases where the right of action is denied.
This article was originally a replica of art. 2223 C.N. but was later amended
by adding the final words “except
in cases where the right of action is
denied”.5 Thus, those decisions which hold that the “reasonable diligence”
of art. 1530 C.C. must be pleaded and cannot be raised by the court suo motu
do not hold that this prescription is one of the excepted cases of art. 2188 C.C.
On the other hand, if the court believes it is one- of these exceptions, it can
bring up the matter itself. Is art. 1530 C.C. such an exception?
Mignault 6 denies that it is, and in his reasoning alludes to art. 2267 C.C.
which states:
In all the cases mentioned in articles 2250, 2260, 2261, 2262, the debt is absolutely
extinguished and no action can be maintained after the delay for prescription has
expired.
He states that these cases are examples of the denial of the right of action.
However, this was new law, and so it was necessary to add the final phrase
to art. 2188 C.C. to ensure that the court could suo motu raise the defense of
prescription in the cases mentioned in art. 2267 C.C. Without such phrase
these defenses would have had to be expressly pleaded. There are, of course,
3[1959] Q.B. 26, at p. 36.
4[1959] Q.B. 459, at p. 463.
529 Vict., c. 41.
6Mignault, P.B., Droit Civil Canadien, Vol. 9, p. 348.
McGILL LAW JOURNAL
one, two, or five years –
f[Vol. 6
other examples of the denial of such right. Mignault 7 cites art. 1040 C.C.,
and particular laws outside of the Code itself, e.g., municipal charters. Witold
Rodys cites art. 1138 C.C. as another such example.8 But nowhere is the
reasonable diligence of art. 1530 C.C. mentioned as an exception to art. 2188
C.C. In fact the interesting feature of all these exceptions is that in each case
a specific time limit –
is applied. Here the Code
prohibits the right of action in an absolute manner after a certain given time,
which, with the exception of animals stricken with tuberculosis, the Code does
not do in art. 1530. Belanger J., in Danis v. Taillefer,9 stated categorically
that such prohibition is the only exception to the general principle that the
plea of prescription is never presumed, and must be specially pleaded. Mignault
agrees with this contention, stating that the prescription of art. 1530 C.C.
“dit 6tre plaid~e par le vendeur.”‘ 0 Rodys emphasizes the fact that the
reasonable diligence we are discussing is not an exception to the rule in art.
2188 C.C., but is what he refers to as a: “prescription sp ciale organis~e en
dehors de notre titre”,11 to which the rule applies.
It seems only logical to conclude, as Bissonnette J. did in Boutin v. Pari,
that “reasonable diligence” is a question of fact. The subject matter with
which this article can be confronted is seemingly infinite, and the codifiers
realized this when they said that the “period should be left to local usage
and the discretion of the courts”. 2 Thus this is a relative matter, depending
on the circumstances of each particular case. For instance, the delay for
bringing an action on a defective pen would be somewhat shorter than the
delay on a house with latent defects. If this is so, and it is apparent from
the wording of the article that it is, then the alleged lack of reasonable diligence
should be expressly pleaded in order that the details pertinent to such a plea
would be brought out. Facts concerning the nature of the defect, the time of its
discovery, the substance and length of negotiations between the vendor and the
vendee could then be applied by the court to the question of reasonable diligence.
But, as we have seen above, St. Jacques J., in Latouche v. Lahouillier, felt that
the lack of such an express plea did not prevent the court from appreciating the
circumstances to determine if there was diligence. This is apparently at logger-
heads with our discussion above concerning art. 2188 C.C. So is the judgement
of Lajoie J. in Jacob v. Lamothe,13 where the learned judge concluded not
only that the delay of art. 1530 C.C. was a question of law, but that it was
“imperatif”, and so must always be examined by the court suo inotu.
7Mignauft, op. cit., p. 349.
SRodys, Witold, Traiti de Droit Civil du Quibec, Vol. 15, pp. 59-60.
9(1873), 5 ILL. 404.
lOMignault, op. cit., Vol. 7, p. 120.
IlRodys, op. cit., p. 59.
12 Codifiers’ 4th Report, p. 14.
13[1956] S.C. 410.
No. 2]
CASE AND COMMENT
141
As we have seen, there is a wealth of conflicting opinions on the point
under discussion, yet it is far from a minor issue. In the last case cited,
Lajoie J. noted that if it were not for the lack of reasonable diligence which
the court
itself had raised the plaintiff’s action would have been quite
successful. Now that the Court of Appeal has spoken on the issue, like Janus,
with two heads, it is to ‘be hoped that in the near future the Supreme Court
will have an opporttinity to provide a definitive answer.
BRAHM CAMPBELL.*
*Of the Board of Editors, McGill Law Journal, second year law student.
