Return Of Services
CHAPTER NINE OF THE REFUND OF BENEFITS
SECTION I CIRCUMSTANCES IN WHICH THE REFUND TAKES PLACE
- The restitution of benefits takes place whenever a person is, by law, required to return to another property that he has received without right or in error, or by virtue of a legal act. which is subsequently canceled retroactively or whose obligations become impossible to perform due to force majeure.
The court may, exceptionally, refuse restitution when it would have the effect of granting one of the parties, debtor or creditor, an undue advantage, unless it considers it sufficient, in this case, to modify instead the ‘scope or modalities of restitution.
1991, c. 64, a. 1699.
SECTION II CONDITIONS OF THE RETURN
- The restitution of benefits is made in kind, but if it cannot be done in this way because of an impossibility or a serious inconvenience, it is made by equivalent.
- Equivalence is assessed when the debtor has received what he must return.
- 1991, c. 64, a. 1700.
- In the event of total loss or alienation of the property subject to restitution, the person who has the obligation to return is required to return the value of the property, considered at the time of its receipt, loss or alienation, or even at the time of receipt. time of restitution, depending on the lesser of these values; but if he is in bad faith or if the cause of restitution is due to his fault, the restitution is made according to the highest value.
The debtor is however exempt from any restitution if the property has perished by force majeure, but he must then cede to the creditor, if applicable, the compensation he has received for this loss, or the right to this compensation if he has not already received it; when the debtor is in bad faith or the cause of restitution is due to his fault, he is exempt from restitution only if the property had also perished in the hands of the creditor.
1991, c. 64, a. 1701.
- When the property which he returns has suffered a partial loss, such as deterioration or other depreciation in value, the person who has the obligation to restore is bound to indemnify the obligee for this loss, unless the latter results from the normal use of the property.
1991, c. 64, a. 1702.
- The right to be reimbursed for expenses incurred on the property subject to restitution is regulated in accordance with the provisions of the book On Property applicable to the possessor in good faith or, if there is bad faith or if the cause of the restitution is due. to the fault of the one who has the obligation to restore, to those which are applicable to the possessor in bad faith.
1991, c. 64, a. 1703.
- Anyone who has the obligation to return owns the fruits and revenues produced by the property that he returns and he bears the costs that he has incurred to produce them. He owes no compensation for the enjoyment of the property, unless this enjoyment was the main object of the service or the property was liable to depreciate rapidly.
However, if he is in bad faith, or if the cause of the restitution is due to his fault, he is bound, after having compensated the costs, to return these fruits and revenues and to indemnify the creditor for the enjoyment that was able to provide him with good.
1991, c. 64, a. 1704.
- The costs of restitution are borne by the parties, in proportion, where applicable, to the value of the services that they mutually restore to each other.
However, when one of them is in bad faith or that the cause of the restitution is due to its fault, it alone bears the costs of the restitution.
1991, c. 64, a. 1705.
- Protected persons are only bound to restitution of services up to the amount of the enrichment they retain; the proof of this enrichment rests with the one who demands the restitution.
They may, however, be held to full restitution when they have made restitution impossible through their intentional or gross fault.
1991, c. 64, a. 1706.
SECTION III THE SITUATION OF THIRD PARTIES WITH REGARD TO THE REFUND
- Acts of alienation for valuable consideration made by the person who has the obligation to restore, if they have been performed for the benefit of a third party in good faith, are opposable to the party to whom the restitution is due. Those free of charge are unenforceable, subject to the rules relating to prescription.
Other acts performed for the benefit of a third party in good faith are opposable to the party to whom the restitution is due.