Where Law and Pedagogy Meet in the
Transsystemic Contracts Classroom
Rosalie Jukier*
bilingual,
and
comparative,
In this article, the author examines how the
transsystemic McGill Programme, predicated on a
uniquely
dialogic
theoretical foundation of legal education, operates on
the ground in a first-year Contractual Obligations
classroom. She describes generally how the McGill
Programme distinguishes itself from other comparative
or interdisciplinary projects in law, through its focus on
integration rather than on sequential comparison, as
well as its attempt to link perspectives to mentalits of
different traditions. The author concludes with a more
detailed study of the area of specific performance as a
particular application of a given legal phenomenon in
different systemic contexts.
Dans cet article, lauteure examine comment
fonctionne sur le terrain, dans un cours dObligations
contractuelles de premire anne,
le programme
transsystmique de McGill, bti sur des fondements
thoriques de lducation juridique qui sont la fois
comparatifs, bilingues, et dialogiques. Elle explique
comment, de manire gnrale, le programme de
McGill se distingue dautres projets
juridiques
comparatifs ou interdisciplinaires, de par son insistance
sur
la comparaison
squentielle, ainsi que de par son objectif de relier les
perspectives et mentalits propres diffrentes
traditions. Lauteure conclut avec une tude plus
approfondie de la doctrine de specific performance
en tant quapplication spcifique dans divers contextes
systmiques d’un phnomne juridique donn.
lintgration plutt que sur
* Associate Professor, Faculty of Law, McGill University. I would like to thank Professor Roderick
Macdonald, who read and commented on earlier versions of this paper. I would also like to
acknowledge the invaluable help of my research assistant, Kirk Shannon, who was hired under a
research grant from the Wainwright Trust of the Faculty of Law, McGill University.
Rosalie Jukier 2005
To be cited as: (2005) 50 McGill L.J. 789
Mode de rfrence : (2005) 50 R.D. McGill 789
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 50
790
Introduction
I. The Aspirations of Transsystemic Teaching
A. Moving from the Sequential to the Integrated
B. Linking Perspectives to Legal Traditions
II. Specific Performance as an Illustration of
Transsystemic Teaching
Conclusion
791
792
794
797
801
808
2005]
R. JUKIER THE TRANSSYSTEMIC CONTRACTS CLASSROOM
791
Introduction
Many scholarly and thoughtful articles1 have been written about what Harry
Arthurs has termed one of the most unusual curriculum experiments in the annals of
legal education,2 otherwise known as the McGill Programme. Although omitted
from its official title, the McGill Programme offers what we refer to as transsystemic
legal education. While the term transsystemia is not universally endorsed, and is
even questioned by some,3 it is the nomenclature most often used at McGill to
describe a programme of legal education that is exemplified by a uniquely
comparative and bilingual environment,4 one that focuses on the dialogue between
legal traditions and legal cultures,5 and one that reflects the goals of cosmopolitan
jurisprudence.6
What exactly transsystemia means is not possible to pinpoint with any accuracy
or consensus. One of my colleagues has likened it to nailing jello to a tree.7 Most of
us actually engaged in the enterprise of transsystemic teaching certainly have a strong
sense of what it involves, but find it incredibly difficult to articulatealmost in the
same vein as asking someone to articulate what it means to be an American or a
Canadian or a member of an ethnic community. We feel it, act it, live it and intuit it,
but when it comes to describing it, we are often at a loss for words.
1 See generally Yves-Marie Morissette, McGills Integrated Civil and Common Law Program
(2002) 52 J. Legal Educ. 12; Nicholas Kasirer, Bijuralism in Laws Empire and in Laws Cosmos
(2002) 52 J. Legal Educ. 29 [Kasirer, Bijuralism]; Daniel Jutras, Two Arguments for Cross-cultural
Legal Education in Heinz-Dieter Assmann, Gert Brggemeier & Rolf Sethe, eds., Different Legal
CulturesConvergence of Legal Reasoning: Grundflagen und Schwerpunkte des Privatrechts in
europischer Perspektive, vol. 3 (Baden-Baden: Nomos Verlagsgesellschaft, 2001) 75 [Jutras, Two
Arguments]; Armand de Mestral, Guest Editorial: Bisystemic Law-TeachingThe McGill
Programme and the Concept of Law in the EU (2003) 40 C.M.L. Rev. 799; David Howes,
Maladroit or Not? Learning to Be of Two Minds in the New Bi-jural Law Curricula (2002) 52 J.
Legal Educ. 5; Julie Bdard, Transsystemic Teaching of Law at McGill: Radical Changes, Old and
New Hats (2001) 27 Queens L.J. 237; Nicholas Kasirer, Legal Education as Mtissage (2003) 78
Tul. L. Rev. 481; Daniel Jutras, noncer lindicible : le droit entre langues et traditions [2002]
R.I.D.C. 781; Roderick A. Macdonald, Still Law and Still Learning? / Quel droit et quel
savoir (2003) 18 C.J.L.S. 5 at 17; Pierre Larouche, Lintgration, les systmes juridiques et la
formation juridique (2001) 46 McGill L.J. 1011.
2 Harry Arthurs, Madly Off in One Direction in this issue of the McGill L.J.
3 See Roderick A. Macdonald & Jason MacLean, No Toilets in Park in this issue of the McGill
L.J. at 736ff. See also Jutras, Two Arguments, supra note 1 at 80.
4 Admissions, online: Faculty of Law, McGill University
5 Nicholas Kasirer, A Message from the Dean, online: Faculty of Law, McGill University
6 Ibid.
7 Professor Wendy Adams, Faculty of Law, McGill University.
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What is clear, and undoubtedly agreed upon by McGill colleagues, is that the
McGill Programme has recast the teaching and study of law. The transsystemic focus
has freed the faculty from viewing law within the constraints of a doctrinally based
professional vocation, and has enabled it to shift toward a more intellectual model of
legal education.8 This is because transsystemia focuses on the fundamental structures,
ideas, values, techniques, and processes of law, rather than the laws or legal rules of a
single jurisdiction.
[Vol. 50
The object of this article is not to add to the literature on the McGill Programme or
further seek to refine it in any theoretical sense. Rather, this article is an attempt to
describe, from the vantage point of experience, what this innovative approach to legal
education has done to legal pedagogy on the ground, so to speak. What actually
happens in the classroom as the professor interacts with a group of eager first-year
students who have all cited McGills uniquely comparative and bilingual programme
as the reason they wish to attend this law faculty above all others in their admissions
applications? Their statements are made in good faith, but with little understanding as
to what they actually mean other than the instrumental fact that after three to four years
of study, they will graduate with two law degrees (the B.C.L. and the LL.B.).
This article will first attempt to outline the aspirations of transsystemic teaching
in a general sense and then move to a more detailed illustration of this approach using
contract doctrines, including the legal concept of specific performance, as examples.
I. The Aspirations of Transsystemic Teaching
The motivating force behind McGills transsystemic programme was beautifully
put by former Dean and now the Honourable Mr. Justice Yves-Marie Morissette,
when he stated that McGill has always been habited by the conviction that a great
deal can be gained … from a sustained and humble dialog with otherness.9 Otherness
refers, of course, to other legal systems that have distinct historical developments and
distinct modes of organization and that evidence other ways of structuring and
thinking about law. The goal of incorporating otherness into our pedagogy is not
motivated by a desire to become more like the other, as is the case with many
contemporary European harmonization movements,10 but rather to gain a better
8 For a general discussion, see Kasirer, Bijuralism, supra note 1 at 31.
9 Morissette, supra note 1 at 22.
10 As Walter van Gerven mentions in his article Codifying European Private Law? Yes, If…!
(2002) 2 Eur. L. Rev. 156 at 175: [M]any projects are already underway to discover, understand and
rebuild a European common legal heritage. These include: Principles of International Commercial
Contracts (Rome: UNIDROIT, 1994); Ole Lando & Hugh Beale, eds., Principles of European
Contract Law, Parts I and II Combined and Revised (The Hague: Kluwer Law International, 2000);
Ole Lando et al., eds., Principles of European Contract Law, Part III (The Hague: Kluwer Law
International, 2003); M. Bussani & U. Mattei, eds., The Common Core of European Private Law (The
Hague: Kluwer Law International, 2003); Beale et al., eds., Contract Law (Oxford: Hart, 2002). For
general discussion, see Arthur Hartkamp et al., eds., Towards a European Civil Code, 3d ed.
R. JUKIER THE TRANSSYSTEMIC CONTRACTS CLASSROOM
2005]
understanding of the other. It is the desire to free the study of law from jurisdictional,
temporal or systemic boundaries, and to multiply the perspectives on legal study, that
best exemplifies our original motivation for the adoption of this programme.
793
While, like most truths, this seems both simple and self-evident, there is, by no
means, universal buy-in to this concept in the legal world. One need only consider the
recent statement by Mr. Justice Scalia of the US Supreme Court, dissenting in
Lawrence v. Texas,11 criticizing the majority judgment for its reference to foreign
nations and their treatment of similar cases. He states: The Courts discussion of
these foreign views is … meaningless dicta. Dangerous dicta, however, since this
Court … should not impose foreign moods, fads, or fashions on Americans. One can
also point to a recent bill before the US Congress which, if passed, would forbid the
US Supreme Court from considering foreign judgments in cases before it. House of
Representatives Resolution 568 expresses the sense of the House of Representatives
that judicial determination regarding the meaning of laws of the United States should
not be based on judgments, laws, or pronouncements of foreign institutions12 and
constitutes a reaction against US judgments, such as the recent case of Lawrence v.
Texas, which, in the majority opinion, has done just that.
While these sorts of statements admonish us not to take the concept of otherness
for granted, one must recognize the greater acknowledgment of the notion in Canada,
given its bijural nature. But even in the United States, there is an increasing
awareness in legal academia of the importance of adapting legal education to the new
transnational reality.13 It is quite clear that in the United States, there is an incipient
(Nijmegen: Kluwer Law International, 2004); Michael Joachim Bonell, The Need and Possibility of
a Codified European Contract Law (1997) 5 E.R.P.L. 505; Ole Lando, Why Codify the European
Law of Contract? (1997) 5 E.R.P.L. 525.
11 539 U.S. 558 (2003) at 598 (a case concerning the constitutional validity of a Texas statute
making it a crime for two persons of the same sex to engage in sexual conduct).
12 U.S., H.R. Res. 568, Expressing the Sense of the House of Representatives that Judicial
Determinations regarding the Meaning of the Laws of the United States Should Not Be Based on
Judgments, Laws, or Pronouncements of Foreign Institutions Unless Such Foreign Judgments, Laws,
or Pronouncements Inform an Understanding of the Original Meaning of the Laws of the United
States, 108th Cong., 2d Sess., 2004, presented by representatives Feeney and Goodlattee.
13 For example, the Association of American Law Schools Annual Meeting in January 2006
included a workshop on Integrating Transnational Legal Perspectives into the First-Year
Curriculum. Professor Peter Strauss of Columbia School of Law has been a strong proponent of the
way in which the McGill Programme broadens legal perspectives and has likened it to the innovations
in legal education led by Harvard with the institution of the case method in the late nineteenth century:
Peter Strauss, Transsystemia: Are We Approaching a New Langdellian Moment? Is McGill Leading
the Way? (Paper presented to the American Association of Law Schools Annual Meeting, January
2006) [forthcoming in J. Legal Educ.]. See also J. Vescovi & S. Wampler, Educating the Next
Generation of Law Faculty Columbia Law School Report (Spring 2002) 1 at 10-11, where McGills
programme is lauded. Beyond academia, one can also refer to US Supreme Court Justice Stephen
Breyers public endorsement of the value of comparative law. The aim is, in the words of Emily
Bazelon of the Atlantic magazine, to cast an empirical light that will reveal new solutions to shared
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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movement toward integrating transnational legal perspectives into the basic law
curriculum. As Dean Grossman of the American University, Washington College of
Law has stated:
[Vol. 50
Lawyers practicing in a global environment must understand legal
traditions that influence other countries, an understanding that goes beyond
international laws and norms regulating the conduct of nation states. This
knowledge includes an understanding of the legal culture, whether it is
common law, civil law, religious law, or customary law.14
If more jurists are catching on to the move toward learning about the other, what
remains unique about the McGill Programme? What, in essence, makes it different
from the myriad of comparative approaches to law that exist around the world and in
turn, makes teaching and learning at McGill so different? As stated earlier, while
McGill colleagues universally acknowledge that transsystemia opens up vistas and
frees law from jurisdictional boundaries enabling us to appreciate, as Nicholas
Kasirer has said so eloquently, laws cosmos as opposed to its empire,15 transsystemia
has inspired everyone in a unique way. For my part, explaining the aspirations of
teaching transsystemically can be summarized by focusing on two notions.
A. Moving from the Sequential to the Integrated
The first major respect in which transsystemia distinguishes itself from more
usual forms of comparative law lies in the move from the sequential to the integrated.
There are many law programmes that offer, alone or in partnership with other
faculties, sequential, side-by-side, comparative legal education.16 From 1968-1999,
under the auspices of the National Programme, McGills Law Faculty did just that.17
McGill students were regularly taking courses in Common Law Property, Contracts,
and Torts in one year, and Civil Law Property and Obligations (both contractual and
extra-contractual) in another year. While that approach to legal education certainly
enabled students and professors to adopt a comparative approach, such an approach
was necessarily limited by the very fact that the law was taught in separate courses by
legal problems (Emily Bazelon, What Would Zimbabwe Do? The Atlantic 296:4 (November 2005)
at 48). See also Ann Althouse, Innocence Abroad, New York Times (19 September 2005).
14 Claudio Grossman, Building the World Community: Challenges to Legal Education and the
WCL Experience (2002) 17 Am. U. Intl L. Rev. 815 at 834. American University, Washington
College of Law has also initiated the creation of an International Consortium on Legal Education, the
first meeting of which took place in Washington in October 2004, followed by a second meeting in
Turkey in July 2005.
15 Kasirer, Bijuralism, supra note 1 at 31.
16 A non-exhaustive list includes: University of Ottawa, Universit de Sherbrooke, Universit de
Montral, Louisiana State University, Tulane Law School. Also, joint programmes are offered by
University of Western Ontario and Universit Laval, Universit de Sherbrooke and Queens
University, Osgoode Hall Law School and Universit de Montral.
17 See Roderick A. Macdonald, The National Law Programme at McGill: Origins, Establishments,
Prospects (1990) 13 Dal. L.J. 211.
R. JUKIER THE TRANSSYSTEMIC CONTRACTS CLASSROOM
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different professors whose perspectives were each monosystemic. What was missing
was the integration between the subjects in the various legal traditions.18
795
The goals of legal education under the transsystemic programme have expanded.
No longer is it seen as adequate to teach, no matter how well, distinct systems of legal
thought in separate silos. The goal now is to create minds so agile and creative that
they can think open-mindedly within alternative systems of thought, nimbly moving
across and, as need be, transcending the boundaries of these systems.19
This means much more than just having blended courses. It is not sufficient
that there are no longer separate courses on Contracts and Civil Law Contractual
Obligations, or Torts and Extra-Contractual Obligations. Within each blended course,
the goal is not simply to graft conventional comparative law that used to take place
within two courses into the one course. What is needed is a new approach to law
altogether. Working with different legal traditions having distinct historical and
methodological underpinnings, the goal is to hone our students skills of imaginative
insight, all the while undermining the fallacious notion that there is one structure of
reality. We would be failed pedagogues if, within our Contractual Obligations
courses, we simply spent half the class talking about how the common law views the
doctrine of Mistake, and then the second half of the class how the civil law views the
concept of Error. That would be more of a formal rather than a substantive change.
Instead, the significant changes inherent in our transsystemic teaching are
apparent from our course outlines, our teaching plans, and our forms of evaluation.20
All three required creativity. Taking course outlines and teaching plans as an example,
they were complicated by the very fact that conventional civilian and common law
doctrines do not match upthe nomenclature and the syntax are entirely different.
The term consideration means little in civil law and the term intensity of
obligations means little in the common law. This forces us, as I often tell my
students, to turn the sweater inside out and to organize our courses around broad
themes and large questions as opposed to established doctrines. While traditional
doctrines, concepts and understandings are certainly canvassed, they are canvassed
not for the sake of their being an established legal doctrine, but rather as an
illustration of a particular perspective on a larger legal issue.21
18 As Armand de Mestral points out in his article Guest Editorial: Bisystemic Law-TeachingThe
McGill Programme and the Concept of Law in the EU, supra note 1 at 806, this meant that students
carried the sole burden of comparative analysis as they were being taught these various legal
perspectives by professors whose perspectives [were each] unisystemic.
19 See Jean-Guy Belley, Presentation on McGills Approach to Teaching Comparative Law,
programme organized for Vietnamese senior comparative law research personnel under the auspices
of the Vietnam Legal Reform Assistance Project, Faculty of Law, McGill University, 2 November
2004 [unpublished].
20 For a description of innovative forms of evaluation, see Macdonald & MacLean, supra note 3 at
772-77.
21 According to Kasirer, Bijuralism, supra note 1 at 36, as different ways to imagine law.
[Vol. 50
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Classes move back and forth between traditions and amongst primary materials
from a variety of jurisdictions, creating in students a dexterity of mind absent in
monojuridical training. For example, in discussing the issue of the obligational
content of a contract (of both explicit and implied terms), a matter of preoccupation
for jurists of every tradition has been how to deal with incorporation of terms, or
the extent to which external clauses or referenced printed conditions form part of the
parties contract. This classical question of contract law, first raised by the famous so-
called ticket cases of the nineteenth century,22 is today a burgeoning area of the law
given the exponential growth of electronic contracting through the Internet.
Particularly in the United States, cases and doctrinal articles are beginning to treat
interesting questions dealing with the applicability of standard form terms in what is
often termed click-wrap and browse-wrap agreements.23
The following is an illustration of how a transsystemic classroom would treat
legal material in this area. As one would in a common law Contracts class, students
are first taken through the well-known English House of Lords decision of
McCutcheon v. David MacBrayne Ltd.24 involving the incorporation of an
exoneration clause in a consumer contract in which the terms were standard form, the
clause part of a set of illegible and incomprehensible conditions in what was a
monopolistic setting. However, rather than focusing on what the case says about the
law on this issue, students are focused on a passage by Lord Devlin in which he
incites the legislator to intervene to secure that when contracts are made in
circumstances in which there is no scope for free negotiation of the terms, they are
made upon terms that are clear, fair and reasonable …25
That passage is used to segue into the Quebec Civil Code, which was recodified
in 1994. The Quebec legislator appeared to heed Lord Devlins advice by enacting
three codal articles,26 applicable only in consumer and adhesion contracts,27 aimed at
22 Parker v. South Eastern Railway (1877), 2. C.P.D. 416, [1874-80] All E.R. 166 (C.A.), and as
more recently dealt with in Thornton v. Shoe Lane Parking Ltd. (1970), [1971] 2 Q.B. 163, [1971] 2
W.L.R. 585 (C.A.).
23 Recently a topic at the Association of American Law Schools Conference on Exploring the
Boundaries of Contract Law, 14-17 June 2005. Professor Juliet M. Moringiello presented a paper
entitled Signals, Assent and Internet Contracting (2005) 57 Rutgers L. Rev. 1307. See also Robert
A. Hillman & Jeffery J. Rachlinski, Standard-Form Contracting in the Electronic Age (2002) 77
N.Y.U.L. Rev. 429; DeJohn v. TV Corporation, 245 F. Supp.2d 913 (N. D. Ill. 2003); Specht v.
Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002). In Canada, see Rudder v. Microsoft
(1999), 2 C.P.R. (4th) 474 (Sup. Ct. Ont.); Kanitz v. Rogers Cable (2002), 58 O.R. (3d) 299 (Sup. Ct.
Ont.); Dell Computer Corporation v. Union des Consommateurs, [2005] J.Q. No. 7011 (C.A.) (QL);
and Aspencer1.com v. Paysystems, [2005] J.Q. No 1573 (C.Q.) (QL).
24 [1964] 1 All E.R. 430 (H.L.).
25 Ibid. at 439.
26 Article 1435 C.C.Q. protects consumers and adhering parties against external clauses, article
1436 C.C.Q. does the same for illegible and incomprehensible clauses, and article 1437 C.C.Q.
seeks to control abusive clauses.
797
R. JUKIER THE TRANSSYSTEMIC CONTRACTS CLASSROOM
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mitigating the problem of external, illegal, incomprehensible, and abusive clauses.
The class then discusses a case decided in Quebec in 200428 involving an innocent
purchaser of a lottery ticket faced, after the fact, with the alleged applicability of a
condition printed on the back of the ticket which, if applicable, would preclude him
from claiming his winnings. The pedagogical question facing the class is whether the
new provisions in the Quebec Civil Code proved to be a panacea. This is answered in
the negative for the purchaser of the lottery ticket lost nonetheless. The class
discussion focuses not on what the law purports to say in these different jurisdictions
but rather on a contextual analysis29 of this legal issue, as well as how best to deal
juridically with this prevalent societal problem, creating a dialogue using sources
from different jurisdictions and different legal traditions.
B. Linking Perspectives to Legal Traditions
If transsystemic legal education is indeed unique, it must mean something more
than merely disassociating legal study from doctrinally limited epistemology, because
many law faculties have moved in that direction, creating more critical and
intellectual approaches to legal education. It must also mean something more than the
opening up of a multiplicity of perspectives since we can look to many other faculties
as well that have incorporated, to mention just a few, economic, feminist,
sociological, and linguistic approaches to legal education. The unique perspective
offered by a transsystemic approach to legal education lies precisely in the
opportunity it provides to link the various perspectives offered to the mentalities of
the different legal traditions.
The McGill Programme is predicated on the belief that legal systems have
particular structures of thought,30 transcendent values and principles31 and intellectual
traditions.32 This is one of the reasons our curriculum offers two compulsory second
year courses, in Advanced Civil Law and Advanced Common Law, so as to examine
more deeply and critically the understandings of the overall mentalities and
methodologies of the two great occidental legal traditions.33 It is thus not just the
27 Consumer contracts are defined in article 1384 C.C.Q. and an adhesion contract is defined in
article 1379 C.C.Q.
28 Chevalier v. Socit des Loteries du Qubec, [2004] R.J.Q. 1984 (C.Q.).
29 Contextual analysis is not meant to be construed only in the sense of social context but in the
broadest sense as including a multitude of dimensions (such as social, economic, historical,
methodological, etc.).
30 See Kasirer, Bijuralism, supra note 1 at 37-38.
31 See ibid. at 37.
32 See ibid. at 38-39.
33 This examination in these upper-level courses is intended to encourage students not only to
compare the two occidental traditions but also to examine the different tendencies amongst various
jurisdictions within each legal tradition. The Foundations course in first year described in Macdonald
& MacLean, supra note 3, incorporates other legal traditions in addition to civil and common law
including chthonic (religious and aboriginal traditions), and the goal within the rest of the
transsystemic programme is to move toward incorporating non-Western legal traditions as well.
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multiplicity of perspectives that is key to operating within a transsystemic world, it is
that these perspectives are linked to global systems of thought.
[Vol. 50
This concept of transsystemia mitigates the dangers of comparative law
consisting merely in the side-by-side comparisons of different doctrines or principles.
The danger lies precisely in that this survey is disconnected from the legal traditions
and legal systems in question and we need only think of the many sad examples of
poorly done legal transplantation that have resulted from this approach.34 As Mr.
Justice Gonthier said in the Supreme Court case of Laferrire v. Lawson,35 we must be
[m]indful of the dangers of comparative law unequipped with full information and
understanding of other legal systems. This is because, as William Bishop has said:
Any legal system is a complex interlocking balance, perhaps a delicate balance,
achieved after experiment, adaptations, and reform. There are important
differences between common-law and civilian systems of contract, differences
that affect the formation, content and discharge of contract as well as remedies
for breach. … It is not prudent to consider one difference in isolation from the
others, for that difference may so easily be balanced by some other factor not
considered. Indeed casual comparisons across very different legal systems may
not only mislead, but mislead systematically …36
It is therefore not enough that students understand the different conceptions of
civilian and common law counterpart doctrines, but rather that students realize how
these different conceptions link up with the entire mentalities of the traditions in
question and, where relevant, the mentalities of particular jurisdictions within those
traditions.37 I will illustrate this by using two examples taken from the law of
contracts.
The first example deals with the classic contracts issue that arises when a party
enters into a contract upon a mistaken assumption. A somewhat superficial
comparative approach to the teaching of contracts would view the civilian concept of
the defect of consent of Error as the mirror-image counterpart to the common law
doctrine of Mistake. While the two concepts bear many similarities, in the
transsystemic classroom, where students are immersed in the entire tradition-specific
mindset of the subject matter, it becomes apparent that viewing error and mistake as
counterparts is too superficial a view. So to return to the concept of the complex
34 See generally Jonathan M. Miller, A Typology of Legal Transplants: Using Sociology, Legal
History and Argentine Examples to Explain the Transplant Process (2003) 51 Am. J. Comp. L. 839;
Pierre Legrand, The Impossibility of Legal Transplants (1997) 4 M.J.E.C.L. 111.
35 [1991] 1 S.C.R. 541 at 601, 78 D.L.R. (4th) 609.
36 William Bishop, The Choice of Remedy for Breach of Contract (1985) 14 J. Legal Stud. 299 at
318 [emphasis added]. It is worth pointing out that in the McGill Programme, the factors we ask our
students to consider in order to achieve this deeper understanding go beyond the standard inventory of
legal rules and concepts.
37 This is necessary, for example, where jurisdictions within the same legal tradition, such as France
and Germany, or France and Quebec, diverge considerably on a given issue.
799
R. JUKIER THE TRANSSYSTEMIC CONTRACTS CLASSROOM
2005]
interlocking balance of which William Bishop spoke,38 it is only through the
endeavour of trying to understand the legal system as a whole that one can understand
the role and significance of a legal concept. Error, as Jacques Ghestin has pointed
out,39 is often used in civilian systems as a substitute for the lack of a coherent
doctrine of protection against exploitation (or what the common law would term
unconscionability) due to the civil laws general resistance to remedies of lesion.40
Speaking about the defect of consent of error in the French Civil Code, Ghestin says
that along with other remedies that ostensibly protect consent, error is often a device
that is used to protect la justice contractuelle and that en pratique, trs
frquemment, larticle 1110 [the error provision in the French Code] permet de
rparer une lsion.41
This is nicely illustrated in a recent case decided by the Superior Court of
Quebec42 involving an egregiously unfair contract of sale of a baking business
between contracting parties with extremely unequal bargaining powers. The court
characterized the state of the contract as being unconscionable and abusive43 and
concluded that, [t]hrough [the purchasers] failure to understand the value of the
business sold, the price to be paid, and its manner of payment, her consent was
vitiated by an error as to an essential element of the contract.44
While the substantive outcome of the decision is undoubtedly a fair one, its basis
in the civilian doctrine of error is problematic since the only mistake the defendant
made with respect to this contract was its economic feasibility and fairness of price45
due to the exploitative and unfair circumstances surrounding its formation.46 Error is
undoubtedly masquerading as lesion in this instance.
38 Supra note 36.
39 Jacques Ghestin, Lutile et le juste dans les contrats (1981) 26 Archives de philosophie du droit
35 at 48 [Ghestin, Lutile].
40 Lesion being the defect of consent which in the civil law protects parties who have entered into
contracts in which their prestations are seriously disproportionate due to a situation of exploitation.
Generally speaking, this protection is afforded only in limited circumstances involving minors,
incapable majors and consumers, and some other limited cases. See as an example, arts. 1405, 1406,
2332 C.C.Q. and Consumer Protection Act, R.S.Q., c. P-40.1, ss. 8, 9.
41 Ghestin, Lutile, supra note 39 at 48.
42 Yoskovitch v. Tabor, [1995] R.J.Q. 1397 (C.S.).
43 Ibid. at 1405.
44 Ibid. at 1404 [emphasis added].
45 Economic error is not a cause of nullity in civil law. See Jean-Louis Baudouin & Pierre-Gabriel
Jobin, Les obligations, 6th ed. (Cowansville, Qc.: Yvon Blais, 2005) at 286; J. Ghestin, Trait de droit
civil: la formation du contrat, 3d ed. (Paris: Librairie gnrale de droit et de jurisprudence, 1993) at
474-475; Versailles, 7 janvier 1987, D.1987.Jur.487 (Poussin case).
46 These circumstances included a relationship of subordination between the parties, great disparity
between the parties in terms of literacy, language and education, and the fact that the party in the
weaker bargaining position was not given time to consider entering into the contract nor time to
consult someone she trusted about the terms of the contract.
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Another example that affords the professor teaching contracts transsystemically
the opportunity to link perspectives to legal traditions is the issue of changing
circumstances post contract formation resulting in hardship of performance. This area
of the law is what a common lawyer would term Frustration and a civilian would
refer to as Imprvision. A superficial comparative perspective would merely compare
and contrast the different approaches of the two major occidental legal traditions.
This comparison would reveal that with the exception of a handful of jurisdictions,
most notably Germany, the civil law tradition is generally more reluctant to excuse a
debtors performance than is the common law. The civil law sets the bar high by
requiring an irresistible and unforeseeable event that causes performance to become
impossible, as opposed to simply making it more difficult or impracticable.47
But in a transsystemic classroom, an interesting perspective develops as to where
and how this would fit within the legal traditions and why the mentality, as opposed
to the doctrinal answer, to approaching this issue differs significantly in the two legal
systems.
In the common law, Frustration is commonly taught in the context of excuse for
non-performance and the issue is approached from the remedial perspective of the
extent to which the law should excuse a partys breach of contract in the factual
scenario of changing circumstances.48
In the transsystemic classroom, discussion gravitates to whether the remedial
perspective is the appropriate lens through which the law ought to view the issue of
changing circumstances. An examination of the development of the law on this topic
in Germany opens all our eyes to a completely different vision of this area of the law,
shifting it from the remedial sphere of contract law to the framework of contract
performance. If the example of Germany49 is followed in other civilian jurisdictions,
it seems that the civil law will ultimately resolve this issue from the perspective of
47 See definition of force majeure in arts. 1693, 1470(2) C.C.Q.; Baudouin & Jobin, supra note 45 at
940; Jacques Ghestin, Trait de droit civil: les effets du contrat, 2d ed. (Paris: Librairie gnrale de
droit et de jurisprudence, 1994) at 310-65. Contrast this with common law sources in which futility of
performance and impracticability are sometimes seen as sufficient excuses for non-performance. See
generally Sir Guenter Treitel, The Law of Contract, 11th ed. (London: Sweet & Maxwell, 2003) at
880-87; P.S. Atiyah, An Introduction to the Law of Contract, 5th ed. (Oxford: Clarendon Press, 1995)
at 232-44; S.M. Waddams, The Law of Contracts, 4th ed. (Toronto: Canada Law Book, 1999) at paras.
362-74. See also U.C.C. 2-615 (1995); Restatement (Second) of Contract Law 261-272 (1979).
48 The excuse being justified either by fictitiously implying conditions (the more traditional
jurisprudential explanation) or by a fairness or efficiency rationale: Stephen A. Smith, Contract
Theory (Oxford: Oxford University Press, 2004) at 371-72. See also Taylor v. Caldwell (1863), 3 B. &
S. 826, 122 E.R. 309, which advocates the more traditional view, and Great Peace Shipping Ltd. v.
Tsavliris Salvage (International) Ltd. (2002), [2003] Q.B. 679, [2002] 3 W.L.R. 1617, [2002] EWCA
Civ 1407 (C.A.), which rejects the implied-condition theory.
49 German cases use 242 of the German Civil Code, a good-faith provision, to effectively bring in
a doctrine of imprvision. See Werner F. Ebke & Bettina M. Steinhauer, The Doctrine of Good Faith
in German Contract Law in Jack Beatson & Daniel Friedman, eds., Good Faith and Fault in
Contract Law (Oxford: Clarendon Press, 1995) 171.
R. JUKIER THE TRANSSYSTEMIC CONTRACTS CLASSROOM
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good faith50by applying a positive duty to collaborate in the performance of the
contract, which translates into an obligation on the part of the creditor to renegotiate
when the debtor is faced with hardship.51
801
These two examples illustrate the aspirations of transsystemic teaching. We aim
to reach quite deep into the mentalities of the different legal and intellectual systems
as a whole and to weave that understanding into the analysis of traditional legal
concepts as applied in manifold legal systems.
II. Specific Performance as an Illustration of Transsystemic
Teaching
A discrete area of contractual obligations that can be used to illustrate, in more
depth and detail, our transsystemic pedagogical approach, is that of specific
performance as a remedy for the victim of a contract breach. This is an area of law
that is not only dealt with differently in civilian and common law systems in terms of
both reasoning and outcome, but it is one that is ideally suited to illustrate the
importance of analyzing a legal concept in the context of the mentalities of the
intellectual traditions of the two legal systems, as well as their distinct methodologies
and historical development.
To begin this pedagogical analysis, we can use as a springboard two fairly recent
cases, one decided in 1997 by the House of Lords (Co-operative Insurance Society
Ltd. v. Argyll Stores (Holdings) Ltd.52) and the other decided in 1988 by the Quebec
Superior Court (Construction Belcourt Lte v. Golden Griddle Pancake House Ltd.53).
The facts are eerily similar (always a fun pedagogical tool) in that both cases deal
with a commercial contract of leasethe UK case involving a supermarket and the
Quebec case dealing with a restaurantin which the parties had included an
operating clause or continuous operation provision in which the tenant had
agreed to keep the premises open during the usual hours of business for the duration
of the lease. In both cases, this proved to be financially problematic in that the
tenants businesses were losing money and were subsequently closed as a result.
50 A concept more established and entrenched in civilian systems than in the common law (see arts.
6, 7, 1375 C.C.Q.; art. 1134, 3 C. civ.; 242 German Civil Code; arts. 2, 3 Swiss Civil Code; arts.
1175, 1375 Italian Civil Code; art. 288 Greek Civil Code; art. 762, section 2, Portugese Civil Code).
See also Brigitte Lefebvre, La bonne foi dans la formation du contrat (Cowansville, Qc.: Yvon Blais,
1998); Martijn W. Hesselink, The Concept of Good Faith in Hartkamp et al., supra note 10 at 471.
For discussion regarding the common laws more limited concept of good faith, see Brownsword et al.
eds., Good Faith in Contract: Concept and Context (Dartmouth: Ashgate, 1998); Michael G. Bridge,
Does Anglo-Canadian Contract Law Need a Doctrine of Good Faith? (1984) 9 Can. Bus. L.J. 385.
51 This approach has been advocated in France by Philippe Stoffel-Munck, Regards sur la thorie de
limprvision: vers une souplesse contractuelle en droit priv franais contemporain (Aix-en-
Provence: Presses Universitaires dAix-Marseille, 1994) and in Quebec by Stefan Martin, Pour une
rception de la thorie de limprvision en droit positif qubcois (1993) 34 C. de D. 599.
52 (1997), [1998] A.C. 1, [1997] 2 W.L.R. 898 (H.L.) [Argyll cited to A.C.].
53 [1988] R.J.Q. 716 (C.S.) [Golden Griddle].
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Breach of contract and entitlement to damages were, of course, not at issue, the sole
question before each court being whether the landlord could obtain specific
enforcement of the express obligation to stay open for business.
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The two cases, each true to their respective legal tradition, were decided
differently in that the UK case refused to order specific performance whereas the
Quebec case ordered it with gusto. Not surprisingly, the cases also differ significantly
in their reasoning. The UK case warns us about the restrictive and exceptional nature
of the remedy of specific performance,54 and the civilian case pontificates about how
we cannot forget that the choice of remedy belongs to the creditor of the obligation
(namely the plaintiff victim of the breach) in that [i]t is not the role of the Court to
select or predetermine the creditors recourse but rather to respond to his election.55
As a result, specific performance ought to be disallowed only where it is clearly
inappropriate for reasons of impossibility, harm to third parties, or the fact that it
necessitates physical constraints on a persons (referring to physical, not moral
person) freedom to act.56
Predictably, Lord Hoffman of the House of Lords postulates the orthodox
common law position to the effect that the remedy of specific performance is by its
very nature an exceptional remedy, one that is inherently discretionary and available
only in circumstances were damages are inadequate.57 These characteristics of the
remedy of specific performance are well-known to most common law students as they
form the basic framework of the remedy explained (although, according to Professor
Farnsworth, not necessarily justified)58 by the historical development of specific
performance as a remedy of equity. It is axiomatic that teaching specific performance
offers the opportunity to link the subject to the historical development of the legal
system in question.59 But one can, and often does, do this in monojuridical common
law programmes. So where is the difference?
The difference lies in the ability of transsystemic students to recognize the
obviousthere is no similar historical background in the civil law as the division
between courts of chancery and courts of law is a uniquely English phenomenon.
Accordingly, the historical impediment to specific performance in the common law
owing to its equitable origin is simply non-existent in the civil law. It would follow
logically that the civil law should be free to apply the remedy in a distinctly civilian
way, uninhibited by this historical encumbrance.
54 Argyll, supra note 52 at 11.
55 Golden Griddle, supra note 53 at 722-23.
56 This refers to the nemo praecise cogi potest ad factum principle, which reflects an unwillingness
to force a person to accomplish an act if the only way to do so is by physical violence or constraint
(Rosalie Jukier, The Emergence of Specific Performance as a Major Remedy in Quebec Law (1987)
47 Rev. du Barreau 47 at 55 [Jukier, Emergence]).
57 Argyll, supra note 52 at 11-12.
58 E. Allan Farnsworth, Contracts, 3d ed. (New York: Aspen, 1999) at 769.
59 This temporal aspect is another manifestation of a transsystemic perspective involving the
examination of differences within legal systems throughout time.
803
R. JUKIER THE TRANSSYSTEMIC CONTRACTS CLASSROOM
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The examination of the remedy of specific performance also provides an
excellent opportunity to deal with the concept of legal transplantation because, as it
happens, Quebec had borrowed the remedy of the injunction (both in its prohibitive
and mandatory form) from English law. This at first led civilian judges in Quebec to
apply the remedy of specific performance exactly as it was applied in the jurisdiction
from which it was borrowed. In fact, the Supreme Court of Canada in 1975 stated that
specific performance was a matter of discretionary power to be exercised having in
mind the principles established in common law jurisdictions, since this is a remedy
taken from them.60
This attitude persisted until quite recently when doctrinal writers urged, and
judges ultimately accepted, that they should abandon the English law approach
because the historical explanation for the restrictive and exceptional approach of the
common law did not fit historically or intellectually within the civilian legal tradition.
In 1994, Mr. Justice Baudouin of the Quebec Court of Appeal aptly stated that [i]t is
not because injunction is historically a common law procedural remedy that the
restrictive approach of common law to mandatory injunctive relief should also be
followed.61
The point that legal transplantation cannot be wholesale and that it necessitates
careful adaptation is not a novel one, nor restricted to the subject of specific
performance.62 Clearly, transplantation can only be successful when done in a way
that adapts the borrowed concept so as to fit within the entire mentality of the legal
system in question. Adaptation is an ambitious and delicate undertaking and requires
a fundamental and profound understanding of the legal tradition in question. Only a
programme of legal study that teaches, from the outset, the history, methodology,
intellectual traditions and fundamental mindsets of the traditions can create jurists
well equipped to do so.
Thus far, the analysis of specific performance has provided merely a negative
reason for civilian jurisdictions not to adopt the restrictive common law position. But
the teaching of specific performance from a transsystemic perspective should cause
us to reflect as to whether there are positive reasons, consonant with civilian theory,
60 Trudel v. Clairol of Canada (1974), [1975] 2 S.C.R. 236 at 246, (1974) 54 D.L.R. (3d) 399
[emphasis added].
61 Varnet Software v. Varnet U.K. Ltd., [1994] R.J.Q. 2755 at 2758 (C.A.), 59 C.P.R. (3d) 29,
followed in Aubrais c. Laval (Ville de), [1996] R.J.Q. 2239 at 2253 [Aubrais].
62 See supra note 34. Another notable area where the subtlety of legal transplantation is at issue lies
in the area of the trust, a quintessential common law instrument predicated on the division between
legal and equitable ownership nonexistent in the civil law. The Quebec Civil Code has succeeded in
fashioning a uniquely civilian solution to the adoption of the trust by creating it as a patrimoine
daffectation. See e.g. Madeleine Cantin Cumyn, The Quebec Trust: A Civilian Institution with
English Law Roots in J.M. Milo & J.M. Smits, eds., Trusts in Mixed Legal Systems (Nijmegen: Ars
Aequi Libri, 2001) 73 at 74-76; John E.C. Brierley, Titre sixime: De certains patrimonies
daffectation: Les articles 1256-1298 in Barreau du Qubec & Chambre des notaires du Qubec, La
rforme du Code civil, vol. 1 (Sainte-Foy, Qc.: Presses de lUniversit Laval, 1993) 735 at 748ff.
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that specific performance ought to be, in contrast to the common law, a broad remedy.
To do this, we can proceed with a codal, textual analysis, a uniquely civilian
methodology.63 Such codal analysis supports
interpretation of specific
performance as a primary remedy. Using the Civil Code of Quebec and the German
Civil Code as examples, one sees specific performance listed first amongst the
various available remedies and one notes the permissive nature of the language used,
indicating that the remedy is one for which the creditor may opt.64 This codal analysis
has recently led the Quebec judiciary to assert that the choice of remedy belongs to
the creditor.65
the
Furthermore, the study of specific performance also affords us the opportunity to
see the link between the remedy and what traditionally has been seen as the
foundational premise of the civilian conception of contracts, namely the autonomy of
the will. Although watered down and criticized in contemporary contexts,66 the pre-
eminence given to the parties subjective wills as the creator of their subjective law is,
nonetheless, still advanced as the primary justification for the enforcement of
promises in the civil law.67 According to Mr. Justice Steinberg in Golden Griddle,
[i]f the will of the parties is the source of contractual obligations, the will of the
parties, as evidenced in the contract, dictates that the contractual obligations actually
be performed. The obligation to pay damages is clearly subsidiary.68 This is what
63 See Arthur Taylor von Mehren & James Russell Gordley, The Civil Law System: An Introduction
to the Study of Comparative Law, 2d ed. (Boston: Little, Brown and Company, 1977) at 1134-1135;
Mary Ann Glendon, Michael Wallace Gordon & Paolo G. Carozza, Comparative Legal Traditions in a
Nutshell, 2d ed. (St. Paul, Minn.: West Group, 1999) at 210-11.
64 See arts. 1590 & 1601 C.C.Q.; 241 of the German Civil Code. Also, according to Rudolf B.
Schlesinger et al., Comparative Law, 6th ed. (New York: Foundation Press, 1998) at 739, French and
other civilian courts have adhered to the same principle despite codal provisions that express
themselves less clearly than the German Code.
65 Aubrais, supra note 61 at 2251.
66 See Houle v. Canadian National Bank, [1990] 3 S.C.R. 122 at 145, 176, 74 D.L.R. (4th) 577
[Houle cited to S.C.R.]; Rosalie Jukier, Banque Nationale du Canada v. Houle (S.C.C.): Implications
of an Expanded Doctrine of Abuse of Rights in Civilian Contract Law Case Comment (1992) 37
McGill L.J. 221 at 240-41 [Jukier, Houle]; Michel Deschamps, Lautonomie de la volont dans la
dtermination de la loi contractuelle et du tribunal comptent (1990) 24 R.J.T. 471 at 473; Ghestin,
Lutile, supra note 39; Michel Coipel, La libert contractuelle et la conciliation optimale du juste et
de lutile (1990) 24 R.J.T. 485 at 488; John Bell, Sophie Boyron & Simon Whittaker, Principles of
French Law (Oxford: Oxford University Press, 1998) at 310.
67 See Baudouin & Jobin, supra note 45 at 112-13; Ghestin, Trait de droit civil: la formation du
contrat, supra note 45 at 27; Jacques Flour, Jean-Luc Aubert & ric Savaux, Les obligations, t. 1, 10th
ed. (Paris: Dalloz, 2002) at 67-75; Georges Rouhette, La force obligatoire du contrat: Section I
Rapport franais: observations critiques in Denis Tallon & Donald Harris, eds., Le contrat
aujourdhui: comparaisons franco-anglaises (Paris: Librairie gnrale de droit et de jurisprudence,
1987) 27. See also the recent Supreme Court of Canada decision in GreCon Dimter v. J.R. Normand
Inc., [2005] 2 S.C.R. 401, 255 D.L.R. (4th) 257, 2005 SCC 46, where Mr. Justice Lebel cited the
autonomy of the parties as a reason to uphold a contractual choice of jurisdiction provision.
68 Supra note 53 at 724, citing Jukier, Emergence, supra note 56 [emphasis removed]. See also
Denis Tallon, Les remdes: Section ILe droit franais in Tallon & Harris, ibid., 271 at 290.
R. JUKIER THE TRANSSYSTEMIC CONTRACTS CLASSROOM
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Professor Stephen Smith would classify as a rights-based justification for the
remedy of specific performance.69
805
Most common law jurists would, at this juncture, point to the myriad of practical
obstacles facing the remedy regardless of the theoretical analysis undertaken above. It
is interesting to see how these different attitudes and systemic mentalities influence
the way in which the judiciary treats the so-called practical impediments to specific
performanceproblems of imprecision and court supervision and issues of hardship.
Not surprisingly, the House of Lords in the UK case of Argyll quickly pointed out
that an order of specific performance to operate a business was not sufficiently
precise and would cause endless problems of court supervision. An order to keep the
premises open for trade, said the court, says nothing about the level of trade, the area
of the premises within which trade is to be conducted, or even the kind of trade …70
The imprecision in the terms of the order would, as held by Lord Hoffman, only lead
to repeated applications to the court creating wasteful and expensive litigation.71
Contrast this with the Quebec case of Golden Griddle, in which the court found
no imprecision problem with essentially an identical order. Justice Steinberg stated
that the order to operate the restaurant was not imprecise and that the self-interest of
the company in question would ensure that the level of operation was consistent with
its image and would not be so shoddy as to require the court to constantly intervene in
the order.72
Concerning the argument of hardship, once again, we see a marked departure in
mindset. The House of Lords stated that an order of specific performance would
cause injustice [to the debtor] by allowing the plaintiff to enrich himself at the
defendants expense73 in that the costs of complying with the order would outweigh
the loss caused by the breach. This would be wasteful of resources and economically
inefficientarguments reminiscent of the cost-of-cure versus cost-of-performance
debate we see in well-known common law cases such as Peevyhouse v. Garland Coal
& Mining,74 Ruxley Electronics and Construction Ltd. v. Forsyth,75 and Tito v. Waddell
(No. 2).76
In fact, economic perspectives on specific performance often side with the
traditionally restrictive position of the common law. According to Kronman, non-
specific relief (in the form of damages) better advances efficient resource allocation
69 Smith, supra note 48 at 389-91.
70 Supra note 52 at 16.
71 Ibid. at 13-14. This, of course, opens the door to the myriad of economic arguments against the
remedy. See, most notably, Anthony T. Kronman, Specific Performance (1978) 45 U. Chicago L.
Rev. 351; Farnsworth, supra note 58 at 773; Bishop, supra note 36.
72 Golden Griddle, supra note 53 at 728-29.
73 Argyll, supra note 52 at 15.
74 382 P. 2d 109 (Okla. Sup. Ct. 1963).
75 (1995), [1996] A.C. 344, [1995] 3 All E.R. 268 (H.L.).
76 [1977] Ch. 106, [1977] 3 All E.R. 129.
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in the setting of a market economy. In essence, Kronman argues that damages should
be awarded over specific performance in order to promote efficiency by reducing the
costs of negotiating contacts by drawing the line between specific performance and
damages in the way that most contracting parties would draw it were they free to
make their own rules concerning remedies for breach and had they deliberated about
the matter at the time of contracting.77 Those advancing economic efficiency theories
of remedies most often side with a liability rule (damages) as opposed to a property
rule (specific performance).78
Economic analysis assumes a rationale actor. As recently pointed out by Eric
Posner, emotions interfere with such rationality and the analysis of specific
performance from an efficiency standpoint is complicated by the interaction between
law and the emotions. According to Posner, emotion introduces an asymmetry into
the standard analysis of contract remedies,79 since [a]n angry persons action
tendency is to harm the offender, even at a cost to oneself. … The calm-state and the
emotion-state preferences are in conflict …80 Posner concludes that expectation
damages have the virtue of giving the property right to the calm person, whereas
specific performance has the defect of giving the property right to the angry
person.81 Understandably, the victim of the contract breach will often be angry and
desirous of specific performance more out of desire for vindication and retribution
than a genuine desire for performance.
These compelling views must be contrasted with those of civilian jurisdictions,
which shift the focus from the debtor to the creditor, concentrating on the innocent
victim of the breach. The Quebec case of Golden Griddle reacts to the question of
hardship by simply dismissing it, stating merely that [h]ardship and personal
consequences are irrelevant.82 Instead of focusing on economic hardship to the
debtor, the judge focuses on the civilian concept of foreseeability in contract
remedies, asserting that if the cost of the remedy was a foreseeable consequence at
the time of contract formation, then courts should not refrain from enforcing contracts
just because the defendant will be inconvenienced or lose money as a consequence.
Mr. Justice Steinberg states:
These were readily foreseeable consequences at the time Golden Griddle
contracted its obligations under the lease and are commensurate with the
77 Kronman, supra note 71 at 365. See also Farnsworth, supra note 58 at 773 and Argyll, supra note
52 at 18.
78 They do so except in cases of unique goods. See Kronman, supra note 71 at 354, 358. See also
Bishop, supra note 36. This view is not universally endorsed. For a contrary view, see e.g. Alan Schwartz,
who argues for specific performance from an economic standpoint in The Case for Specific
Performance (1979) 89 Yale L.J. 271 and Thomas S. Ulen, The Efficiency of Specific Performance:
Toward a Unified Theory of Contract Remedies (1984) 83 Mich. L. Rev. 341 at 365-66.
79 Eric A. Posner, Law and the Emotions (2001) 89 Geo. L.J. 1977 at 2008.
80 Ibid. at 2007.
81 Ibid. at 2009.
82 Supra note 53 at 724.
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rewards to be earned if the restaurants operations are successful. It is specious
to suggest that courts should refrain from enforcing contracts if the defendant
will lose money as a consequence. Judicial intervention is rarely necessary to
enforce contracts which will yield a profit to the defendant.83
Is the civil law totally oblivious to Posners image of the enraged promisees
[who wish to use] the tool of specific performance … to exact retaliation?84 I would
assert that it is not, but that the problem would be resolved in civil law doctrine by
employing the civilian concept of the obligation of good faith to prevent vindictive
and retaliatory parties from abusing their right to the remedy of specific performance
in these circumstances. As a general rule, although to varying degrees, the civil law
requires parties to exercise their rights not only with the absence of malice or intent to
harm, but within reasonable norms of behaviour as well.85 Just as the Supreme Court
of Canada has used this concept to limit the right of a bank to call a demand loan
without notice in the Houle decision, in appropriate circumstances, good faith and the
doctrine of abuse of rights could be called upon to limit a creditors right to the
powerful remedy of specific performance.86
Finally, the transsystemic presentation of this area allows us to examine the
general role of remedies in the two systems. Lord Hoffmann in Argyll enunciates a
general view characteristic of the common law of what may be referred to as the
divorce mentality. This view posits that an award of damages is an appropriate
remedy because it brings the litigation to an end and as far as the parties are
concerned, the forensic link between them is severed, they go their separate ways
and the wounds of conflict can heal.87 By contrast, all the order of specific
performance would do, says the House of Lords, is [yoke] the parties together in a
continuing hostile relationship88 thereby prolonging the battle.
Before one is seduced by this divorce mentality, it is worth turning to the civil
law which, in many ways, views remedies somewhat differently.89 In civil law
systems, one notices the existence of a wide array of remedies, in addition to specific
performance, available at the option of the creditor who does not simply wish to sever
the contractual link and opt for damages. These remedies include the exceptio non-
83 Ibid. at 728.
84 Supra note 79 at 2009.
85 This refers to the civilian concept of abuse of rights, which is analyzed as a particular application
of the good faith obligation. See Houle, supra note 66 at 146 and Jukier, Houle, supra note 66 at
226-27.
86 Houle, supra note 66. For a discussion of how the concept of abuse of rights may be used to limit
the remedy of specific performance in Belgian law, see Patrick Wry, Les sanctions de linexcution
des obligations contractuelles in Patrick Wry, ed., Le droit des obligations contractuelles et le
bicentenaire du Code civil (Bruxelles: La Charte, 2004) 287 at 301.
87 Argyll, supra note 52 at 16.
88 Ibid.
89 See Tallon, supra note 68 at 286-91; Bell, Boyron & Whittaker, supra note 66 at 346.
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adimpleti contractus,90 which allows the creditor to delay performance until the
debtor performs properly, and quanti minoris,91 which gives the court the ability to
reduce the correlative obligations of a creditor who is faced with a contract breach.
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The first thing this reveals about the general mentalities of the two systems is that
the emphasis in civil law is more on the creditor (the victim) rather than the debtor
(the wrongdoer). This is consistent with what we have seen earlier with respect to
specific performance, where the civil law views it as an option of the creditor and the
common law sees it more as a discretionary tool of the court. The second thing one
cannot help noticing is that these alternative remedies work counter to the divorce
mentality. They all seek to keep the contract, and the contractual relationship between
the parties, alive. The broader application of specific performance in the civil law is
again consistent with this overall mentality.
Conclusion
The foregoing examination of the remedy of specific performance in the
transsystemic classroom presents students with a rich array of perspectives.92 Of
course, many of these perspectives are examined in monojuridical programmes as
well. However, when one opens up the world of resources by including a multitude of
jurisdictions from civil and common
to
interdisciplinary sources, the perspectives undoubtedly expand. And when one
analyzes the comparative outcomes in the context of the respective legal traditions,
we move from comparative teaching to transsystemic teaching.
in addition
law
legal
traditions,
Proust said that the real voyage of discovery consists not in seeking new
landscapes, but in having new eyes. Admittedly, this quote may be somewhat corny
and much over-used. However, it remains extremely relevant to McGills experiment
in transforming legal education. With only five years of experience in offering this
new vision of legal education, this article is but a first in an ongoing endeavour to
convey some of the new landscapes seen through the transsystemic eyes we use at
McGills Faculty of Law.
90 Translated in the subtitle at art. 1591 C.C.Q. as the exception for nonperformance. For a general
discussion, see Baudouin & Jobin, supra note 45 at 810-16.
91 Translated in article 1590(2) C.C.Q. and elsewhere in the Quebec Civil Code as a reduction in
[ones] correlative obligations. For a general discussion, see Baudouin & Jobin, ibid. at 808-10.
92 The perspectives canvassed in this paper are certainly not comprehensive and many have not been
undertaken including, for example, perspectives that may be gleaned from the structural system of the
courts, the legal profession, or the rules of civil procedure.
