Me Pierre-Luc Giroux
A partner at Verreau Dufresne Avocats, Pierre-Luc Giroux focuses his practice on family law, youth protection and the law of persons. Drawing on his litigation experience and his human approach, he supports parents, children and families with rigour, empathy and strategic insight to defend their rights and find solutions suited to their circumstances.
View profileBook an appointmentThroughout the life of an incapable adult, several events with significant legal consequences will occur. Our family and persons law lawyers in Québec City and Lévis discuss contracts signed by an incapable adult, whether or not the adult is under a protective supervision regime. For example, the contract could be a residential lease, a cellphone contract or the purchase of any kind of property.
The principle of legal capacity
Articles 153 and 154 of the Civil Code of Québec provide that a person who reaches full age, at 18, becomes able to fully exercise all their civil rights, and that the capacity of a person of full age can be limited only by law or by a judgment ordering the institution of a protective supervision regime. In other words, the capacity to contract is the rule and incapacity is the exception. Moreover, for a contract to be valid, “ consent may be given only by a person who, at the time of manifesting such consent, either expressly or tacitly, is capable of binding himself ”.
An incapable adult without a protective supervision regime
An incapable adult who is not under a protective supervision regime and who wants to annul a transaction they entered into themselves will have to prove that they were incapable of consenting when the contract was made. Since the law presumes that an adult who enters into a contract has capacity, it is up to them to prove their incapacity[1].
If the other contracting party does not accept this incapacity, court proceedings will have to be filed to have the contract declared null. To do so, an incapable adult who relies, for example, on an illness or their mental health to show that there was no consent will have to prove, through expert evidence, that when they consented to the contract in question, they were not able to reason soundly or to understand the scope and extent of their commitment[2].
To succeed, an unprotected adult who wants the contract annulled will also have to prove that the contract, as concluded, causes them some prejudice; otherwise, the application will be dismissed. Of course, the adult must also be able to return the service or property they received when the contract was made. If this is impossible, the application will be dismissed on that ground.
If you are dealing with a contract you entered into at a time when you believe you were incapable of doing so, do not hesitate to contact our lawyers to have it annulled.
[1] Vincent KARIM, Les obligations vol.1, 4th ed., Montréal, Wilson & Lafleur, 2015, p.413.
[2] Idem, p.414.
Adviser to a person of full age
Sometimes an adult enters into a contract before an advisership is instituted. In that case, annulment is subject to the general rules discussed above. When an adult under advisership signs a contract for which the adviser’s assistance was required, the contract can be annulled only if the adult suffers prejudice as a result.
An adult under tutorship
When a protected adult enters into a contract before tutorship is instituted, the obligations can be annulled or reduced simply on proof that the incapacity was notorious or known to the other contracting party when the contract was signed, without the need to prove prejudice.
However, if an adult under tutorship signs a contract when they should have been represented, the contract can be annulled or reduced only if the adult suffers prejudice.
An adult under curatorship
Curatorship is the representation regime that intrudes most on a person’s life, since the adult must be represented in every act of their civil life. If an adult under curatorship signs a contract alone, the contract can be annulled without even having to prove prejudice. But, as with tutorship, if the incapable adult enters into an agreement before curatorship is instituted, the contract can be annulled or reduced on proof that the incapacity was notorious or known to the other party when the contract was signed.
Contact us
Do not hesitate to contact the family and persons law lawyers at Verreau Dufresne Avocats to learn more about the legal framework that applies to incapable adults.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
