Abstract
The rules of the Code dealing with civil liability have been thoroughly reorganized. They are now presented as a unit, made up of two branches: contractual liability and extracontractual liability.
The reform of the Civil Code also brought another fundamental change. Although there are still a few differences between the two liability regimes, the legislator considerably reduced their number (for instance, the extinctive prescription periods and the conditions of reparation for moratory damages). The contrast between the two branches of liability has been lessened considerably. As a result, judges are now faced much less often with the dilemma of choosing between a contractual rule and an extracontractual rule.
The repercussions of the rule against opting are greatly reduced. It is not easy to find concrete situations where the rule should be applied, since they are so rare. Indeed, there are many decisions where the judge no longer bothers to characterize the situation as contractual or extracontractual, for the good reason that it serves no practical purpose in the case he is deciding.
Establishing the boundaries of the contract in time and space and identifying the parties is not always a problem. For instance, the duty to inform, when the contract is being drafted, is not part of the contract and is governed by extracontractual liability; there is no controversy over this. However, in other contexts, admittedly infrequent, the definition of contractual scope has given rise to rather abundant, and sometimes amazing jurisprudence.
When an obligation can either come under the general duty of prudence laid down in Article 1457 C.C.Q., or constitute an implicit contractual obligation under Article 1434 C.C.Q., the rule against opting indirectly creates some difficulty. The critical expression of this is the duty of security. Indeed, in any matter that involves such an obligation, the court must decide if in that case the victim should base his remedy on the extracontractual regime or whether the matter involves an implicit contractual obligation, giving rise exclusively to contractual liability, due to the rule against opting.
In short, the judge determines whether the obligation that was breached is part of the contract. Is there really a reasonable and logical connection between the obligation and the subject of the contract? If not, then there is no implicit obligation, and liability must be extracontractual. This is a delicate question, and a source of controversy.