No. 13
The Safety Deposit Vault or Leased Metal Box:
The Responsibility of a Bank to its Customer
A. L. Stein, Q.C.*
45
Page
I. DEFINITION OF TERMS AND ESSENTIAL FACTS
……………………….
a. The Safety Deposit Box or Coffret de Seret
…………..
b. The Safety Deposit Box Agreement
………………………………………..
c. Practical Utility of Determining the Nature of the Basic
C ontract ……………………………………………………………………………………
II. DETERMINATION OF THE NATURE OF THE BASIC CONTRACT
BETWEEN THE PARTIES
…………………………………………………………………
a. Dominant Intention of Parties to Contract ……………………………
b. Nature of the Contract: Louage – Dgp6t or Contrat Innommd
c. Effect of Alleged Limitation of Liability (Clause No. 7) on
Contractual Obligation of Bank …………………………………………
d. Effect of the Alleged Limitation of Liability (Clause No. 7)
on the Normal Rules of Presumption from the Facts and
the Burden of Proof …………………………………………………………….
III. CO N CLU SIO N …………………………………………………………………………………………….
46
46
46
47
51
51
52
53
55
58
a. Restricted Effect of the Final Judgment in the Mastracchio
case ………………………………………………………………………………………….
58
b. Failure to Apply the Provisions of Article 1024 C.C.
to
C on tract …………………………………………………………………………………..
c. The Alleged Clause of Limitation of Responsability
………………
58
58
*Of the Bar of the Province of Quebec.
McGILL LAW JOURNAL
[VOL. 18
I. Definition of Terms and Essential Facts
a. The Safety Deposit Box or Coffret de SaretM
In modem times the safety deposit box (or coffret de stlret)
is
an object which hardly requires definition or description to the
average citizen. In general terms, the safety deposit box is, in itself,
a metal compartment in the form of a box which fits or slides into
a steel cabinet fixed in a cement wall, and permently established
in a larger vault or cement room which is barred with a steel door
constituting its only entrance. The steel door or entrance to the
safety deposit vault is opened by a time clock device and intricate
electrical combination, the details of which are known only to the
chief officers of the bank or branch. The individual compartment
in which the safety deposit box, itself, is kept is closed with a small
steel or metal door, and is also locked by means of a double lock for
which two keys are given to the customer, but which requires for
unlocking purposes the use of a master key retained by the bank.’
Access to the vault is generally obtained by entrance through the
bank premises, and bank regulations usually require the customer
to sign a card or form upon admission, and to be attended by an
employee or official of the bank, both upon entrance and departure
from the vault.
The contract between the bank and its customer with respect
to the use of such a safety deposit box is usually in written form,
but there is nothing in our law to prevent such an agreement being
reached on a verbal basis.
b. The Safety Deposit Box Agreement
Since Canadian banks have adopted the practice of making the
safety deposit box agreement in its written form, reference will be
made not only to the specific contract with which we are here
concerned (Form 2072) – Bail de Coffret de Stret9 of the Banque
Canadienne Nationale),2 but also to three similar contracts obtained
from other banks. These typical contracts will serve to indicate the
widespread interest in the same legal problems relative to the
agreement itself, as were dealt with by the courts in the Mastracchib
case.3
‘Mastracchio v. La Banque Canadienne Nationale, [1962] S.C.R. 53, aff’g
[1961] B.R. 1, [1959] R.L. 65 (C.S), per Prdvost, J.
2 [1959] R.L. 65, at pp. 80 et seq.
3 (a) Bank of Nova Scotia Form No. 902.
(b) Bank of Montreal Form No. 310 (Que) 1301 and Fr. 87230.
(c) Royal Bank of Canada Forms 465 (1-60) and 7842 (10-52).
No. 1]
THE SAFETY DEPOSIT BOX
As is made apparent from the titles appearing on these forms,
the Defendant Bank in the Mastracchio case, (as do the other banks
whose contracts are listed below) adopted the position that it was
dealing with a lease of an object or space. But does this nomenclature
chosen by the bank, apparently in its own interest, necessarily
determine the real nature of the contract between the parties?
This writer respectfully submits that it does not. And in support
thereof, one can do no better than to cite the learned trial judge’s
answer to the same question:
La d~fenderesse pretend qu’il s’agit lh d’un louage de chose pur et simple.
II est vrai que le contrat est intitul6 c Bail de coffret de siiret6,,, que les
mots alocation>>, ((louer)>,
reste pas moins vrai, et il existe d’ailleurs une nombreuse jurisprudence
i cet effet, que le nom. que les parties ont donnd h un contrat importe
peu; ce sont les conventions qui s’y trouvent consignfes qui en dterminent
la nature.4
c. Practical Utility of Determining the Nature of the Basic Contract
Before answering the question as to the nature of the basic
contract, one may be inclined to inquire what legal significance
is attached to this exercise in determining the nature of the basic
contract. The answer given, as indicated below, is that the purpose
of such determination would be to establish more exactly the
essential contractual obligations of the bank. To this may be added,
also, the intensity (intensitg) of such obligations and finally the
characterization as obligations de moyens, de rdsultat, or de ga-
rantie.5
Obviously, the learned trial judge considered this both advisable
and necessary since he says:
II importe donc pour atteindre la solution d’6tudier
t la lumi~re de la
preuve les obligations contractuelles respectives des parties et leur effet
sur la responsabilit6 ou la non responsabilit6 de la d6fenderesse.6
Later, he also points out, that:
La convention est la loi des parties, aussi convient-il d’abord de rechercher
la nature du contrat (D.-1) liant les parties et l’intention de celles-ci 7
4[1959] R.L. 65, at p. 82.
GSR. Demogue, Traitg des Obligations, (1925), t. 5, no. 1237, p. 536 et seq.;
H.L. Mazeaud et A. Tunc, Responsabilit6 Civile, t. 1, no. 103-2 et seq., p. 113
et seq.; A. Tunc, La Distinction des Obligations de Rdsultat et des Obligations
de Diligence, J.C.P. 1945.IA49; G. Marty et P. Raynaud, Droit Civil, t. 2, Vol. 1,
no. 468 et seq., p. 503 et seq.
6 Mastracchio v. La Banque Canadienne Nationale, [1959] R.L. 65, at p. 79.
7Ibid., at p. 80.
McGILL LAW JOURNAL
[Vol. 18
This was identical to the view expressed by Brossard, J. in
Franco-Canadian Dyers Ltd. v. Hill Express Depot Limited,, where
a similar legal problem regarding the nature of a contract –
a
storage agreement – was in issue:
Pour fixer les obligations de la d6fenderesse, il convient tout d’abord de
connatre la nature du contrat intervenu entre elle et la demanderesse.9
Both modern French, and Canadian, authors support this pro-
cedure.10
In the Mastracchio case, however, only one of the judges of the
Court of Queen’s Bench, Rinfret, J., and none of the judges of the
Supreme Court believed it necessary to thus determine the exact
nature of the contract between the parties. This is the more
remarkable, in view of the fact that the learned trial judge dealt with
this problem at length, and attempted its solution in an excellent
rdsumg of the leading jurisprudence and doctrine on the legal
issues, as set out in his notes.” On the other hand, we find Owen J.
stating:
If the obligations of the bank towards the holder of the safety deposit
box are to be determined in the present case I do not think that it is
necessary to decide the nature of the basic contract because the obliga-
tions of the bank towards plaintiff in this connection have been spelled
out in the abovementioned clause of the contract.
The purpose of ascertaining the nature of the basic contract would
be to determine the obligations of the bank in the event of loss or of
damage to the contents of the safety deposit box. However in the present
case the parties have provided by contract that in the event of disappear-
ance of or total or partial loss of the contents of the box the responsi-
bility of the bank will depend upon whether or not it has exercised
ordinary precautions to prevent the opening of the safety deposit box
by a person other than plaintiff or his fondg de pouvoir. Accordingly
the obligations of the bank are the same in virtue of clause 7 of the
contract whether this contract be one of lease and hire or of deposit
or of some other nature 2
Similarly, Montgomery, J. said:
Despite the erudition that has been displayed in presenting this appeal,
it is primarily a question of fact…
In determining the bank’s liability for such unauthorized opening
the legal principle to be applied is simply this: Le contrat fait la loi des
8 [1951] C.S. 177.
9 Ibid., at p. 177.
10 Mazeaud et Tunc, op. cit., n. 5, no. 105, p. 132; A. Burn, Rapports et
Domaines des Responsabilitds Contractuelle et Dglictuelle, (Paris, 1931), no.
174, p. 189; Marty et Raynaud, op. cit., n. 5, no. 367, p. 335 et seq.; P.-A. Cr6peau,
Rigimes de responsabilitd civile, (1962), 22 R. du B. 501, at p. 519.
11 [1959] R.L. 65, at pp. 82-96.
12 [1961] B.R. 1, at p. 3.
No. 1]
THE SAFETY DEPOSIT BOX
parties. Did the bank take, in the words of the contract (as quoted in
the notes of Mr. Justice Owen) “les precautions ordinaires pour emp~cher
l’ouverture de ce coffret par une autre personne que le soussign6 ou son
fond6 de pouvoir?” If it did, it is not responsible.13
Furthermore, Pratte J. (dissenting) regarded the issue of liability
as though it was determined solely on the basis of clause 7 of the
agreement:
S’agissant de responsabilit6, il faut savoir d’abord quelle dtait 1’obligation
de la banque h 1’6gard du coffret et de son contenu Or, ‘art. 7 du contrat
intervenu entre les parties porte pr6cis6ment sur le point. Voici le texte
de cette stipulation:
,(La responsabilit6 de la banque en vertu du present bail est limitde
Sl’obligation pour celle-ci de prendre les precautions ordinaires pour
emp~cher l’ouverture de ce coffret par une personne autre que le sous-
sign6 ou son fond6 de pouvoir. La disparition ou la perte totale ou par-
tielle des objets ou valeurs d6posds dans le’ coffret ne constitue pas une
pr6somption que le coffret a dt6 ouvert par une autre personne que le
soussign6 ou son fond6 de pouvoir.>>
Les parties ayant ainsi d~termin6 elles-m~mes l’6tendue de l’obligation
de la banque, il est sans int6rt, pour la decision du litige, de rechercher
quelle peut 6tre exactement la nature du contrat dit de location de coffre-
fort.’ 4
Only Mr. Justice Rinfret in the Court of Queen’s Bench considered
it important to examine the essential elements of the contract, as
he did:
L’objet principal, l’dr6ment essentiel du contrat soumis est la conservation
de la chose.
La banque offre h ses clients un espace amdnag6 dans une enceinte
de baton, protdg6 d’abord par une petite fermeture en acier munie d’une
serrure impossible b. ouvrir sans la participation active du client et de
la banque, espace enclos derriere une grille solide fermde h c16, que seul
le pr~pos6 de la banque peut ouvrir, le tout gard6 par une immense porte
barrde 6lectriquement en dehors des heures de bureau. En principe, cette
installation est inexpugnable.
La banque met h la disposition de ses clients un coffret oil ils pour-
ront, en sfiret6, placer leurs valeurs. Point n’est besoin pour la banque
de connaitre le contenu du tiroir: 1’emplacement est construit de telle
faron b parer
t toute 6ventualit6, hormis cas fortuit ou force majeure.
Le client, de son c6t6, recherche la sdcurit6, la tranquilit6 que lui procu-
rent les armatures de baton et d’acier.
Un contrat intervient par lequel la banque d~livre et Ic client accepte
un coffret de sfiret avec toutes les garanties que comporte ce mot. S’il
ne se m~lait pas un 6lment humain, il est dvident que la banque aurait
c~d et le client obtenu la fin que tous deux se proposaient, la sdcurit6
13 Ibid., at p. 13.
14 Ibid., at pp. 16-17.
McGILL LAW JOURNAL
[Vol. 18
des valeurs que tous deux savent A l’avance devoir 6tre placdes dans ce
coffret.
La vofite ne saurait pourtant 6tre constamment et herm6tiquement
ferme: les usagers ont le droit de se servir de leurs coffrets et la
c’est
banque, l’obligation de les accommoder. La banque assume done –
mrme la seule obligation expresse qu’elle assume par le contrat (la solidit6
de la construction de sa chambre forte dtant implicitement comprise par
les parties) –
l’obligation de ‘prendre les precautions ordinaires pour
emp~cher l’ouverture de ce coffret par une autre personne que le sous-
signs ou son fond6 de pouvoir’.15
In the light of the importance of the issues raised in the Mas-
tracchio case and the possible general application of the same
is rather
principles to be made in many similar contracts, it
judges
disappointing that the majority of the above-mentioned
preferred to treat this case as a cas d’espkce, and dependent largely
on its own facts; [rather than lose] an opportunity to enunciate
the basic legal principles in more general terms, in order to deter-
mine similar problems which might be raised in other instances.
In the forefront of this view, we find Owen J. who, in his concluding
remarks, clearly indicates his attitude [on this score]:
Without attempting to lay down any rules as to the general nature of
contracts between banks and their customers with respect to safety deposit
boxes in this country and elsewhere or as to the nature of the responsi-
bility under the common law of bankers in general in connection with
safety deposit boxes, I would find in this particular case on the facts
proved herein that the bank is responsible for the disappearance of the
$12,750 on the ground that the bank failed to live up to its contractual
obligation to take ordinary precautions to prevent the opening of the
safety deposit box by a person other than Plaintiff or his fondd de
pouvoir.16
In the Supreme Court, the same attitude seems to have prevailed.
The Chief Justice merely found it necessary to construe the agree-
ment, itself, without determining or examining the nature of the
contract. Similarly, Martland J. refers to the agreement, itself,
rather than examine the nature of the contract in the light of all
the surrounding facts, intentions of the parties, etc. Even in his
dissenting opinion, Taschereau J. (as he then was), who does make
reference to the nature of the agreement, does not, in his usual
profound and learned manner, support his opinion with the addi-
tional authority and argument to which we are accustomed in his
case. And, finally, the learned judge does not pretend to resolve
the issue with any degree of finality, but merely expresses a laconic
opinion in the following terms:
15 Ibid., at pp. 4-5.
16 Ibid., at p. 4 (Emphasis mine).
No. 1]
THE SAFETY DEPOSIT BOX
‘appelante et l’intim6 d’un contrat de
I1 ne s’agit sftrement pas entre
d6p6t et l’on ne peut, en consequence, trouver dans r’entente intervenue
les caractdristiques des obligations du d6positaire, qui sont essentiellement
de conserver la chose, et de la rendre h premiere requisition. I1 s’agit
plut6t, h mon sens, d’un louage ordinaire oii la Banque moyennant un
prix stipul6, a mis un coffret ht la disposition de l’intim&17
Basically, what each of the judges did (with the exception of
the trial judge and Rinfret J. of the Court of Appeal) was to
consider the contractual obligation of the bank solely in the light
of, and in the context of the alleged provision of limitation of
liability. In other words, the Appellate Courts both treated the
problem as if the only contractual obligation of the bank to be
concerned with was the one expressed in the written agreement,
and even that one as allegedly limited by the aforesaid provisions
of the said clause 7. In effect, therefore, both courts ignored all
other obligations implicit in the contract, or resulting from the
provisions of article 1024 C.C., though equally binding upon the
parties thereto.
II. Determination of the Nature
of the Basic Contract Between the Parties
a. Dominant Intention of Parties to Contract
Let us first examine what is the real intention of the parties,
and particularly the bank’s customer, in obtaining the use of the
said safety deposit box. It is accepted by all that the purpose for
which the said box is intended to be used is the storing of “valuables
or other property and papers” which the customer wishes to place,
store or deposit therein. As corroboration of this generally accepted
use of the safety deposit box one need only refer to paragraph 3 of
the Conditions of the Contract in the case of the Bank of Nova
Scotia agreement which actually prohibits the use of the said box
for “any purpose other than for the deposit of valuables or other
property and papers”.
What is more important, however, is not the intended use for
deposit, storage, or placement of values in the said box, but the
feature of acquiring thereby a form of security and protection
which otherwise would not be available to the customer either
at his own home or place of business or by the use of a small safe, or
a vault at home. In addition, one must include the intention of the
customer to relieve himself of the “responsibility of possession”
17 [1962] S.C.R. 53, at p. 56.
McGILL LAW JOURNAL
[Vol. 18
of the valuables in question, by placing, depositing or storing them
in the said safety deposit box in the vault of the bank.
It is in this feature of special security and protection that the
basic relationship between customer and bank is to be found. This
essential intention is deliberately ignored in the terms of the bank’s
contract, save implicity, by the attempt to limit its responsibility
(under clause 7, already mentioned above). But here, article 1024
of the Civil Code comes to the aid of the banker’s customer:
Art. 1024. The obligation of a contract extends not only to what is
expressed in it, but also to all the consequences which, by equity, usage
or law, are incident to the contract, according to its nature.
In consequence, it is hardly reasonable to assume, that the cus-
tomer merely sought to lease a space within which to place
certain objects without regard to the security and protection fea-
tures which are described above.
Contrary to the submissions of the bank and the formal prov-
isions of the so-called “lease”, it may be reasoned that the object
of leasing of space, and the use of the safety deposit box, are both
merely accessory to the main objects –
of the customer –
the security and protection of the contents; and
their return to the customer when required.
a)
b)
On the other hand, what are the objectives sought by the bank
with respect to the same contract? Primarily, it desires to retain
a more continuous contact with and to render a service to its
customer whereby it enhances its image of safety, security, etc.
to its depositors as well as to obtain a fee for the use of its safety
deposit box and vault by the customer. Secondarily, it implicitly,
at least, offers to the customer, the use of the box in its vault as a
means of security and protection for his valuables, papers, etc.
Despite its own choice of nomenclature for the agreement, the very
use by the bank of the phrase “safety deposit box” or colfret de
saretg in the said title and its description of the article thereby.
are indications, if not tacit admissions by it, of this most important
factor in its agreement and relationship with its customer.
Having thus rather briefly reviewed the intention of the parties
what, in law, is the nature of the basic contract between them?
b. Nature of the Contract Louage – Ddp6t or Contrat Innomd –
On this issue, the writer accepts the reasoning and authoritative
support given thereto, as expressed by the learned trial judge in
his judgment: 18
18 [1959] R.L. 65, at pp. 82-88.
No. 1]
THE SAFETY DEPOSIT BOX
La Cour doit donc admettre la thorie de la demande h l’effet que le
contrat, piece D.-1, est un contrat innommn participant t la fois du louage
de choses, du louage de services et du ddp6t avec les consequences et les
obligations r~ciproques qui en d~coulent.19
The learned judge also cited at considerable length, the note
of the distinguished French Jurist, Mtre. Andr6 Tunc, criticizing the
decision of the Cour de Cassation in Credit Lyonnais v. Kintz et
autres.20 The problem there, as in the Mastracchio case, arose out
of the relationship of a bank to its customer with respect to a
safety deposit box. Mtre. Tunc concludes that the contract was one
of deposit rather than lease and that the ‘Tobligation de la banque
est au contraire une obligation de rdsultat”.2 1
c. Effect of Alleged Limitation of Liability (Clause No. 7) on
Contractual Obligation of Bank
The trial judge dealt specifically with this problem in the follow-
ing terms:
I1 y a lieu de se demander maintenant si la clause 7 du contrat D.- que
la ddfenderesse qualifi~e de ‘stipulation de non-responsabilit6’ limite les
obligations de la banque et l’exon~re dans le cas soumis.
La clause 7 se lit comme suit:
7. La responsabilit6 de la banque en vertu du pr6sent bail est limit~e t
l’obligation pour celle-ci de prendre les prdcautions ordinaires pour em-
p~cher l’ouverture de ce coffret par une autre personne que le soussign6
ou son fond6 de pouvoir. La disparition ou la perte totale ou partielle
des objets et valeurs d6pos~s dans le coffret ne constitue pas une pr&
somption que le coffret a 6t6 ouvert par une autre personne que le sous-
signd ou son fond6 de pouvoir
D’abord s’agit-il lh d’une stipulation de non-responsabilit6 proprement
dite, il semble bien que non. La premiere partie de cette clause ne fait
que limiter les moyens que la ddfenderesse s’engage t prendre pour assu-
rer la sdcurit6 des objets d6pos~s au coffret et, la seconde partie, ne
fait qu’dliminer la prdsomption d6riv6e de la disparition des objets
comme moyen de preuve que le coffret a dt6 ouvert par un autre que
par le soi-disant locataire du coffret ou son fondd de pouvoir.
Le mot ‘responsabilit6’ dans la premiere ligne est loin d’&tre heureux
et doit dvidemment s’entendre dans le sens du mot ‘obligation’. 22
In addition to the abovementioned comments, to which the
writer subscribes wholeheartedly, it should also be noted that on
the basis of the usual rule of restrictive interpretation of such a
19 Ibid., at p. 87.
20 Besanron, 11 fdvrier 1946, D.1946.365.
21 Ibid.
22 [1959] R.L. 65, at p. 96.
McGILL LAW JOURNAL
[Vol. 18
clause, it would be limited solely to the case of preventing the
opening of the safety. deposit box by a person other than the
customer.2 3
It is submitted, therefore, that this limitation even if accepted
in its full import cannot have any effect other than with respect
to those precautions relating to preventing the opening of the box
by an unauthorized person. It does not, by its own terms, limit or
restrict the other contractual obligations of the bank, whether
expressed or implicit in the contract. Nor is it to be assumed that
this standard (ordinary precautions of a bon pare de famille) is to
be applied to all other contractual obligations of the bank in the
event of inexecution thereof.
The majority of the judges of the Court of Appeal seemed to
treat this clause as though it determined in all respects, all the
obligations of the bank towards its customer.24
In the Supreme Court the treatment and interpretation given
to this clause was very similar.25 Only Mr. Justice Rinfret in the
Court of Appeal seemed to adopt the same reasoning as the trial
judge when he said:
J’estime, pour ma part, qu’une telle clause doit se lire et s’interprdter
avec la phrase pr6cddente, contenue dans la m~me clause, et que, si la
banque peut se prdvaloir de cette disposition lorsqu’elle a rempli son
obligation de bon p~re de famille, elle ne saurait y trouver abri, dans
l’alternative contraire.
Toutefois, m~me si
‘on doit donner effet a cette clause, j’estime
qu’elle est restreinte h la seule disparition ou h la seule perte, sans autre
preuve.26
It is to this latter opinion (Rinfret J.) that the writer inclines as
being the proper interpretation to be given to the effect of the said
clause No. 7 as an alleged limitation of liability of the bank.
23Cf. the safety deposit box rental agreement of the Bank of Montreal which
is identical in its French version and reads in the English as follows:
Shall be limited to the exercise of ordinary diligence to prevent the opening
of the said box by any person other than the lessee or the duly authorized
officer of the lessee.
Similarly, in the case of the Royal Bank agreement entitled “Safety Deposit
Box Lease”, par. 4.
24 [1961] B.R. 1: Owen, J., at p. 3; Montgomery, J., at p. 13; Pratte, 3.
(although dissenting), at p. 17; Choquette, J., at p. 20.
25 [1962] S.C.R. 53: Kerwin, CJ., at p. 54; Taschereau, J. (dissenting), at
p. 56; Martland, J., at p. 59.
20 [1961] B.R. 1, at p. 11.
No. 11
THE SAFETY DEPOSIT BOX
d. Effect of the alleged limitation of liability and the attempt to
derogate from the normal rules of presumption from the facts
and the burden of proof
A most interesting provision of the important clause No. 7 in the
contract in the Mastracchio case is set out in the last sentence
thereof, as follows:
La disparition ou la perte totale ou partielle des objets et valeurs d6pos6s
dans le coffret ne constitue pas une pr6somption que le coffret a 6t6
ouvert par une autre personne que le soussign6 ou son fond6 de pouvoir.
A similar version of this provision may be found in the Form
No. 310, Fr. 87230 Bank of Montreal Agreement and which reads
as follows:
Le locataire, en outre, reconnait que la perte partielle ou totale du contenu
du coffret ne pourra pas constituer une preuve d’ouverture dudit coffret;
In the English version of the same form (Form 310, Que. 1301,
Bank of Montreal) the same provision reads as follows:
… and that such opening shall not be presumed from proof of partial
or total loss of the contents.
In the case of the Royal Bank form (Formule 7842, 10-52) this
provision appears in clause No. 4 in the following terms:
… et il convient qu’une perte, partielle ou totale, du contenu du coffret
ne constituera pas tne preuve ni une prdsomption que le coffret a 6t6
ouvert sans autorisation.
In English, the equivalent form of the same bank (Form 465,
1-60 Royal Bank) appears in clause 4, as well, and in the following
terms:
… and that no loss of the contents of the Box or any part thereof shall
constitute any proof of presumption that the Box has been opened
without authority.
It would appear that the abovementioned provisions constitute
an alleged agreement between the parties to derogate from the
normal rules with respect to presumption and burden of proof
as established by our law and jurisprudence. Article 1242 C.C.
specifically provides that:
Presumptions not established by law are left to the discretion and judg-
ment of the court.
The question to be asked and answered, therefore, is whether
the parties to an agreement can validly contravene this provision
of law contained in our Civil Code and thereby deprive the presiding
judge of the exercise of this discretion in such an important matter.
Apparently, the validity of the said provision was not challenged
specifically in the legal issues before the court. In the respectful
opinion of this writer, such a provision is completely invalid and
McGILL LAW JOURNAL
(Vol. 18
could have no effect whatsoever upon the normal rules of evidence,
dealing with presumption from the facts, (as provided under article
1242 C.C.). Nor could such a clause be deemed valid so as to effect
a shifting of burden of proof upon plaintiff – when otherwise the
evidence was held established by a presumption from the facts as
accepted by a trial court.27
Once the purported effect of this provision of clause 7 has
been removed from the issues, the burden of proof remains upon
the defendant bank to explain the disappearance or loss of the
safety deposit box or its contents, and then only to exonerate itself
by proving force majeure, or cas fortuit or the fault of the plain-
tiff, himself. Failing such proof, the defendant would be held re-
sponsible for the loss which had occured.
Martland, J. in the Supreme Court dealt with this aspect of the
interpretation of clause 7:
The Appellant contends that by virtue of clause 7 no inference of any
kind whatever can be drawn from the loss of the contents of the box.
In other words, the Respondent must prove by other evidence that an
unauthorized person has gained access to his safety deposit box. In my
opinion the wording of the clause does not go that far.
Furthermore, so to construe this portion of the clause would be to
render the obligation of the Appellant, defined in the first portion of
the clause, virtually nugatory. Both portions of the clause must be con-
sidered together (article 1018 of the Civil Code). The second portion of
the clause should not, if there is any doubt as to its meaning, be construed
so as to have such an effecctPs
However, the learned judge did not go far enough when he
inferred that if there was ambiguity in the meaning of this clause
it should be construed against the bank, rather than stating that
the clause was invalid and therefore of no effect upon the pre-
sumptions to be made from the evidence of loss or disappearance.
Taschereau, J. in the Supreme Court seems to have considered
this problem as well 29 but took the position that the contract,
being the law of the parties, no presumption could be made against
the bank according to the terms of the said provision. He also
held that this would be the result even if the civil law of the
province were to be invoked. Thereafter, of course, he dealt with
27P.B. Mignault, Droit Civil Canadien, t. 6; L. Beaudouin, Droit Civil de la
province de Qudbec, p. 1270; Mazeaud et Tunc, op. cit., n. 5, t. 2, no. 1707-1708,
p. 685; C. Demolombe, Cours, t. 30, nos. 243-244, pp. 227-228; Aubry et Rau,
Droit Civil, 4e dd., no. 766, p. 358.
28 [1962] S.C.R. 53, at p. 63.
29Ibid., at p. 56.
No. 1]
THE SAFETY DEPOSIT BOX
the issue on the basis that the onus of proof was entirely upon
the plaintiff to prove the fault of the defendant. Strangely enough,
the late learned Chief Justice of the Supreme Court singled out
this last sentence of clause 7 for special attention, but failed to
make any comment thereon, either as to its validity, or its effect
upon the rule of presumption from facts or the burden of proof.
He, too, disposed of the case on the basis of the finding of the
facts by the lower courts and ruled that these should not be dis-
turbed.
On this point, it is also respectfully submitted that the said
provision, even if valid, could have no legal effect whether the
bank’s contractual obligation was determined either as an obliga-
tion de rgsultat, or as an obligation de moyens. For if the said
clause has any meaning by the use of the terms ‘disappearance’
(disparition), and ‘loss’ (perte) it must exclude any act of the plain-
tiff or his agent, since in such event it would be neither a ‘disap-
pearance’ nor a ‘loss’ in any way giving rise to the bank’s liability
in relation to the safety deposit box.
Moreover, whether the bank’s obligation is de risultat or de
the burden of proof is always on the plaintiff to es-
moyens –
tablish first, that there was a ‘disappearance’ or a ‘loss’ of his
valuables deposited in the box, and that such disappearance or
loss excluded the removal of the valuables by himself or his agent.
Such proof could result either from positive facts or from a pre-
sumption from facts proved –
but this must be a conclusion
arrived at by the trial court first, in order to find that there has
(or there has not) been a disappearance from the box for which
the defendant bank may be liable. Once the ‘loss’ or ‘disappear-
ance’ has been held as proved and recognized (as is suggested by
the terms of the said clause) there can no longer be any question
of a presumption that the box was opened by the plaintiff or his
authorized agent, –
in relation to the contract with which we are here concerned. The
only conclusion remaining at this point – whether arrived at by
proof or by presumption –
is that the valuables were removed
by a person other than plaintiff or his representative. There then
arises the issue and consideration of whether such ‘proved’ disap-
pearance or loss –
engenders the bank’s liability on
the basis of its obligation being de rdsultat (and thus obliging it
to exonerate itself on grounds of cas fortuit, etc.) or whether, if
the obligation is de moyens plaintiff is able, in addition to estab-
lishing the loss, also to prove the fault of the bank as a cause
thereof.
the two situations are mutually exclusive –
per se –
McGILL LAW JOURNAL
[Vol. 18
This is the same type of error in reasoning which is explored
by Professor P.-A. Cr6peau in his article entitled Des rdgimes con-
tractuel et delictuel de responsabilitd civile en droit canadiena0
wherein he states:
D’ailleurs, dire que la clause a pour seul effet de renverser le fardeau
de la preuve, en mettant celui-ci k la charge du cr6ancier, n’a aucun sens
et enlve a une telle clause, pourtant jugde valable, toute efficacit6 lors-
que le d~biteur n’est tenu qu’h une obligation de moyen, car alors, on
le sait, le fardeau repose toujours en ce cas sur le demandeur.31
III. Conclusion
a. Restricted Effect of the Final Judgment in the Mastracchio Case.
Unfortunately, (for other pleaders dealing with the same or
similar issues as were raised in the Mastracchio case) the applica-
bility of this final judgment will be restricted narrowly, because
of the great emphasis on the facts in that case and the reluctance
of the court to express its views on the legal issues arising out of
the contract, itself, in wider terms. Moreover, the citation of Owen,
J. quoted above, pinpoints this restriction to “the particular facts”
in this “particular case”.
b. Failure to Apply the Provisions of Article 1024 C.C. to Contract
As resumed above, the Mastracchio case fails to apply the pro-
visions of article 1024 C.C. It thus fails to implement the express
terms of the basic contract between the parties with the additional
obligations which result from, or are the consequence of, the nature
of the contract itself, or usage, or the law. The decision in this
case also fails to determine with any degree of finality the exact
nature of the contract between the parties with respect to the use
of safety deposit boxes, a determination which could have resolved
many other similar cases, depending upon whether the court of
last resort considers the bank’s obligation thereunder, one of result
or an obligation of means only.
c. The Alleged Clause of Limitation of Responsibility
As shown above, the majority of the judges in both the Court
of Appeal and Supreme Court, chose to interpret the limitative
30 (1962), 22 R. du B. 501.
31 Ibid., at p. 517.
No. 11
THE SAFETY DEPOSIT BOX
clause (clause No. 7) as though this determined the entire respon-
sibility of the bank. For the reasons already given above, this writer
respectfully urges that this should not have been the interpretation
given to the said clause.
As a result, the burden of proof was unduly shifted from the
defendant to the plaintiff. Fortunately, for the plaintiff, however,
the court of original jurisdiction found as a fact that there was
evidence of fault on the part of the bank. As a consequence, in
the final result, this shift of burden of proof did not have the
disastrous effect it might have had in another case where such
proof either was not available or in any event was not undertaken
by the plaintiff in making his case. Thus, if the views of the late
Taschereau, J. (dissenting in the Supreme Court) and Pratte and
Choquette, JJ. (dissenting in the Court of Appeal) had been adopted
by the majority of the Bench, these serious effects of the inter-
pretation given by the Court to the alleged limitative clause (no. 7)
would have been realized and plaintiff’s action would have been
dismissed.
As anticipated by this writer (with some apprehension), a totally
different result was obtained by the claiming depositor in a later
case. 2 There, Tellier J. dismissed Plaintiff’s action (in the Superior
Court) and the Court of Appeal dismissed the appeal by relying
chiefly on the principles enumerated in the earlier case both with
respect to the limitative clause contained in the lease and the require-
ment of ordinary precaution (the execution of ordinary diligence)
on the part of the Respondent bank.
Thus, it remains for some future litigant to retry the issue
“the safety deposit vault or a leased metal box” – which is it?
32 Stewvart v. Bank of Nova Scotia, [1967] B.R. 699.
