La règle sur les clauses abusives sous l’éclairage du droit comparé

This study analyzes the arguments employed by Quebec judges when deciding whether a clause is abusive under article 1437 of the Civil Code of Québec. This analysis is inspired by the common law distinction between the substantive and procedural aspects of contractual unfairness. Thus, courts often invoke substantive factors to assess a clause’s abusive character, such as the equivalence of the obligations, proportionality, reciprocity, commutativity, departure from the usual obligations or from the essential obligation and causal link. However, it was found that courts also rely on procedural criteria to assess abuse, such as the information given to the adhering party concerning the contents of the contract as well as compliance with the adhering party’s reasonable expectations.