Article 1470 of the Civil Code of Québec provides that :
“1470. A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it.
Superior force is an unforeseeable and irresistible event, including external causes with the same characteristics.”
It is essential that the superior force invoked is foreign and significant.
By foreign, we must insist on the fortuitous nature of the event and its corollary that the superior force does not come from the fact or fault of the party concerned.
One can easily think of a flood, fire or other similar events.
It is also likely that the episode of the Covid-19 pandemic could, under certain circumstances, constitute a case of superior force.
Although we will have to wait for the response of the courts, it seems possible to claim a case of superior force with respect to commercial rents and promises to purchase, for example.
In fact, a merchant who was forced to close his establishment because of the pandemic could try to invoke superior force to escape the rent arrears accumulated during the pandemic.
Indeed, there are already certain judgments that have tempered the tenant’s obligations by referring to the pandemic, as well as to the Canada Emergency Commercial Rent Assistance (CECRA), for example the case 9215-3956 Québec inc. v. 9378-9949 Québec inc. (Shack du pêcheur), 2020 QCCQ 2537.
Similarly, a person who signed a promise to purchase and who would have lost his job because of an unforeseen, serious and sudden event could be tempted to invoke superior force.
Of course, the burden of proof is onerous and the demonstration will have to be convincing.
In addition, the contract must be carefully studied, since the regime established by the Civil Code is suppletive and the parties, especially in commercial matters, have the power to modify the applicable rules.
For example, several commercial leases cover this subject and it is the provisions of the lease that will take precedence over article 1470.
Finally, each situation will be different and will have to be studied along with the contract and the relevant facts.
For more information, do not hesitate to consult us.