What is an Execution In Kind in Quebec contract law?
How do you legally define it?
What are the essential elements you should know!
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Table of Contents
What Is Execution In Kind
In Quebec law, execution in kind (or specific performance) is a type of legal remedy where a contracting party seeks an order from the court to order the other contracting party to perform its contractual obligations.
For example, Mary enters into a contract with John to purchase his car for $15,000.
If John fails to deliver the vehicle to Mary, she can legally enforce the contract and demand the “execution in kind” compelling John to “deliver” the car.
In Quebec’s civil law, the execution in kind is what the court’s will primarily seek to enforce.
As a result, in many cases, the most appropriate remedy will be the issuance of an injunction against the defendant to perform its obligations.
In cases where the injunction may not be the most appropriate legal remedy, the courts will award damages to compensate the plaintiff for the injuries suffered.
Execution In Kind Legal Definition
Article 1590 of the Civil Code of Quebec outlines the remedies a contracting party may enforce against another, it states:
An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and without delay.
Where the debtor fails to perform his obligation without justification on his part and he is in default, the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence,
(1) force specific performance of the obligation;
(2) obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or the reduction of his own correlative obligation;
(3) take any other measure provided by law to enforce his right to the performance of the obligation.
In essence, a contracting party (the “creditor”) has the right to demand that the other party’s obligations be “performed in full, properly and without delay”.
This forms the legal basis of the execution in kind in Quebec contract laws.
Mandatory Injunction
A contracting party seeking that the other party perform its obligations in full as stipulated in the contract, a mandatory injunction recourse may be possible.
An example can be illustrated by looking at the Constructions Lavacon inc. c. Icanda Corporation (2015 QCCS 4543) case where the plaintiff wrought the contractual execution of certain wall installation and other works.
In this case, the court evaluated the necessary criteria for the issuance of a mandatory injunction and concluded that the plaintiff successfully met its burden of proof.
Generally, to obtain an injunction award, the plaintiff must demonstrate:
- Clear contractual right to enforce the obligation
- An irreparable harm or prejudice
- Balance of inconveniences
In essence, the plaintiff must show that the defendant has a legally binding obligation that is “executory”.
If the defendant is not ordered to do or not to do something, the plaintiff may suffer a prejudice that a final judgment on the merits of the case may not be able to remedy.
Finally, the balance of inconvenience favours the plaintiff where the plaintiff stands to lose more than the defendant.
Action In Passing of Title
Another instance when a contracting party may demand the execution in kind is with respect to real estate transactions and the transfer of title to the property.
In the context of a real estate transaction, we often see parties sign a promise to purchase where the buyer agrees to pay a certain sum of money to the seller and the seller agrees to convey the title of his or her property to the buyer.
The same is true when the parties enter into a Preliminary Contract (Article 1785 CCQ) for the construction of a new house or property.
If the seller refuses to transfer title to the buyer, the buyer can file an action in passing of title (Article 1712 CCQ) ordering the defendant to transfer title or have the court render a judgment in lieu of the property title.
Similarly, if the buyer does not pay the purchase price, the seller may take legal action to have the court order the buyer to pay the agreed upon price in exchange for the title.
Exceptions To Specific Performance
There are certain exceptions to the general rule of specific performance in Quebec contract law.
Article 1601 of the Civil Code of Quebec stipulates:
A creditor may, in cases which admit of it, demand that the debtor be forced to make specific performance of the obligation.
A creditor (or non-breaching party) can demand that the debtor (the breaching party) make specific performance of its obligations “in cases which admit of it”.
The courts will generally evaluate the circumstances of the case to determine if specific performance is the most appropriate remedy.
Typically, if the execution in kind is no longer possible or is no longer relevant, then specific performance may not be awarded.
Alternatively, if the specific performance is intimately linked to the defendant, then the courts may favour other remedies than specific performance.
For example, if John entered into a contract with Mary so that Mary personally signs at an event, the performance of Mary’s obligations is intimately linked to Mary.
If Mary refuses to sign at the event, it would be difficult for John to have a third party execute Mary’s obligations as John wanted Mary to sign.
Execution In Kind Takeaways
So what is the legal definition of Execution In Kind?
Let’s look at a summary of our findings.
Execution In Kind Meaning
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