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Trial – evidence contract, commencement…

Are you facing an upcoming trial ? Does your litigation revolve around a contract that you would like to prove in court?

Under Quebec law, the Civil Code of Quebec (CCQ) contains several rules regarding the use of testimonial evidence in order to establish the existence of juridical act, such as the existence of a contract.

First and foremost, it is important to note that a contract may be formed verbally or in writing. If you’re headed for trial and have a written copy of the contract you are looking to prove, then your best bet would be to produce the physical contract in court. The notion that written evidence is the better than oral evidence, is set forth at section 2860 CCQ which states, “that a writing or the content of a writing shall be proved by the production of the original or a copy which legally stands in lieu of it”. 

On the other hand, if the contract in question was entered into verbally and no written form of the juridical act was made, in these circumstances, section 2861 CCQ provides that the act may be proved by any means. Therefore, testimonial evidence may be used by either party to establish the existence of the oral contract because these circumstances would reflect a valid reason as to why a party would be unable to procure written proof of the juridical act. 

Moreover, section 2862 CCQ and 2865 CCQ provide important exceptions to the prohibition of proving a juridical act by oral testimony. One of the exceptions is that proof of a juridical act may be made between the parties by testimony where the value in dispute is below $1 500.

On the contrary, where the value in dispute exceeds $1 500, certain criteria need to be met to allow the use oral testimony to establish the existence of a contract. In these circumstances, section 2862 CCQ provides that the party in the litigation may not use oral testimony to prove the existence of the juridical act, unless there is a commencement of proof, among other exceptions. It is important to shed light on the notion of what constitutes a commencement of proof because if a party presents such commencement of proof, they will then be entitled to use oral testimony as a means of evidence. The notion of commencement of proof is defined at section 2865 CCQ which states the following: 

2865. “A commencement of proof may arise from an admission or writing of the adverse party, his testimony or the production of real evidence, where it renders plausible the alleged fact.”

As above mentioned, the concept of commencement of proof refers to the notion of “admission” which is a statement made by the adverse party. Such admission can either take the form of a written admission made in or outside proceedings or be in the form or an oral admission made in the course of proceedings, such as a previous testimony given at a prior interrogation.

As well, section 2865 CCQ states that a commencement of proof must arise from the adverse party involved in the litigation proceedings and cannot arise from a third party. Furthermore, such proof must render the alleged fact plausible, which means that the fact raised must be proven on a probable basis, rather than simply raising a mere possibility of that fact. Hence, in order to for a fact to be considered as plausible, the court must essentially be convinced of this fact on a balance of probabilities. When this burden is met, the judge may then accept the commencement of proof and may then allow the party to use of testimonial evidence to prove the existence of the contract!