Modalities of Obligations

Overview

A modality (modalité) is a particular feature that affects one of the elements of an obligation. Obligations bearing a modality stand in contrast to pure and simple obligations (obligations pures et simples), which are immediately exigible and unconditional (art. 1372 CCQ). While modal obligations often arise from contracts, they may also flow from extra-contractual relationships.

Quebec civil law classifies modalities into two broad families. Simple modalities affect the existence or exigibility of a single obligation through a condition or a term. Complex modalities introduce either a plurality of subjects (more than one creditor or debtor) or a plurality of objects (more than one prestation). These two categories are not mutually exclusive: a single obligation may be both conditional and subject to a term, or both solidary and indivisible.

Learning Objectives

After studying this lesson, readers should be able to:

Distinguish a conditional obligation from an obligation subject to a term, and identify the practical consequences of each.
Classify conditions as suspensive or resolutory, and determine when a potestative condition is invalid.
Explain the effects of the suspensive and extinctive term, including forfeiture (déchéance du terme) and renunciation.
Compare joint, indivisible, and solidary obligations, and apply the correct rules to a multi-party dispute.
Differentiate conjunctive, alternative, and facultative obligations and determine which party holds the right to choose the prestation.

Key Concepts and Definitions

Condition (condition): a future and uncertain event on which the existence of an obligation depends (art. 1497 CCQ).
Term (terme): a future and certain event that fixes the exigibility or extinction of an obligation (art. 1508, 1517 CCQ).
Joint obligation (obligation conjointe): an obligation divided between multiple debtors or creditors, each responsible only for their share (art. 1518 CCQ).
Indivisible obligation (obligation indivisible): an obligation whose object cannot be divided, exposing each debtor to performance for the whole (art. 1519, 1520 CCQ).
Solidary obligation (obligation solidaire): an obligation allowing the creditor to claim the whole performance from any one debtor (art. 1523 CCQ).
Alternative obligation (obligation alternative): an obligation with multiple prestations of equal rank, performance of any one of which liberates the debtor (art. 1545 CCQ).
Facultative obligation (obligation facultative): an obligation with a principal prestation and an accessory prestation; the debtor may choose which to perform (art. 1552 CCQ).

Conditional Obligations

Definition and Validity of Conditions

A condition is a future and uncertain event on which the existence of an obligation depends (art. 1497 CCQ). The condition may be formulated positively (an event occurs) or negatively (an event does not occur), and it may or may not be subject to a deadline.

An obligation may be made subject to either a suspensive condition (condition suspensive) or a resolutory condition (condition résolutoire). Under a suspensive condition, the birth of the obligation depends on the event occurring. Under a resolutory condition, the obligation exists immediately but will be extinguished if the event occurs. Determining which type applies requires examining the parties' intention at the time of formation.

Because the future and uncertain character of the event is essential, an obligation cannot be considered conditional if the event has already occurred, unknown to the parties, at the time the debtor undertook the conditional commitment (art. 1498 CCQ). A condition must also be materially and legally possible, and must not be prohibited by law or public order. A condition that fails these requirements is null and renders the dependent obligation null as well (art. 1499 CCQ). The nullity of the obligation may entail nullity of the entire contract if it is indivisible from the rest (art. 1438 CCQ).

Types of Conditions

Conditions are further classified by the degree to which they depend on the will of a party. A casual condition (condition casuelle) does not depend on the will of either party. A potestative condition (condition potestative or facultative) depends, in whole or in part, on the will of one party.

Doctrine distinguishes between the purely potestative condition, where the event depends on the sole will of one party, and the simply potestative condition, where the event depends on both the party's will and an extrinsic circumstance (financial situation, weather, availability). A mixed condition (condition mixte) depends on the will of the debtor and of a third party; it is treated as a form of simply potestative condition.

A condition is invalid only if all three elements are present: (1) it is purely potestative; (2) it is suspensive; and (3) the commitment depends on the sole will of the debtor (art. 1500 CCQ). In that configuration, the debtor has not manifested a genuine will to be bound, and the engagement is null. In all other cases, the condition remains valid even if potestative. Certain statutory mechanisms escape this rule, including the pact of preference (pacte de préférence) and the sale on trial (art. 1744 CCQ).

Effects of Conditions

The life of a conditional obligation has two phases.

During the period of uncertainty (pendente conditione): Under a resolutory condition, the obligation exists and produces effects as though it were unconditional. The debtor must perform. Under a suspensive condition, the obligation is treated as not yet existing. Payment gives rise to restitution (art. 1554 CCQ), compensation cannot be invoked (art. 1673 CCQ), and prescription does not run (art. 2880 CCQ). The claim is nevertheless transferable and transmissible (art. 1505 CCQ), and the creditor may take conservatory measures to protect it (art. 1504 CCQ). A debtor who prevents the fulfilment of a suspensive condition through fault is treated as though the condition had been fulfilled (art. 1503 CCQ).

If the condition is accompanied by a deadline, it must be fulfilled within the agreed period. If not, it may be fulfilled at any time, unless it becomes apparent that the event will never occur (arts. 1501, 1502 CCQ).

Upon resolution of the uncertainty: If the condition fails, the situation that prevailed during the uncertainty becomes permanent. A resolutory obligation becomes pure and simple; a suspensive obligation is confirmed as never having existed. If the condition is fulfilled, the effect is retroactive (art. 1506 CCQ). A suspensive obligation is deemed to have existed from the outset (art. 1507 CCQ), validating earlier acts such as payments made pendente conditione. A resolutory obligation is deemed never to have existed, triggering restitution of prestations already performed (arts. 1507, 1699 CCQ). The retroactive character is not of public order and may be displaced by agreement.

Example: A buyer promises to purchase a property on condition of obtaining financing within 60 days. This is a suspensive condition. Pendente conditione the sale does not yet exist. If financing is obtained, the sale is deemed to have existed retroactively from the date of the agreement. If the buyer's own fault prevents obtaining financing (for instance, by refusing to submit a loan application), the condition is treated as fulfilled under art. 1503 CCQ.

Obligations Subject to a Term

The Suspensive Term

A suspensive term (terme suspensif) is a future and certain event whose arrival renders an obligation exigible (art. 1508 CCQ). Unlike a suspensive condition, which affects existence, the suspensive term affects only exigibility. An obligation subject to a suspensive term exists from the outset; only its enforcement is delayed.

The suspensive term must be distinguished from a grace period (délai de grâce), by which a court or creditor gives the debtor an additional chance to perform after the obligation has already become exigible and the debtor is already in default.

When the suspensive term is in full effect, the creditor cannot demand performance and the debtor must wait for the term to arrive before performing (art. 1513 CCQ). The term also affects compensation (art. 1673 CCQ) and prescription (art. 2880 CCQ). The creditor holds a certain claim and may take conservatory measures, including the oblique action and the action in unopposability, provided the claim will have become exigible by the time judgment is rendered (arts. 1628, 1634 CCQ).

A term may refer to a specific date, a period, an external event, or a party's decision to render the obligation exigible. For a period without a fixed date, the day marking the starting point is excluded and the day of expiry is included (art. 1509 CCQ). If the event assumed to be certain does not arrive, the term ceases to produce effects at the time the event should have occurred (art. 1510 CCQ). Where the term is indeterminate, a court may fix it on application by a party (art. 1512 CCQ).

Loss of Benefit of the Term

Three mechanisms cause a suspensive term to lose its effect, rendering the obligation immediately exigible.

Arrival of the term: The debt matures (vient à échéance) when the future and certain event occurs.

Renunciation (renonciation au bénéfice du terme): A party benefiting from the term may renounce it, making the obligation immediately exigible (art. 1515 CCQ). The term is presumed to favour the debtor (art. 1511 CCQ), but this presumption may be rebutted. A unilateral renunciation is valid only if the term is stipulated exclusively in favour of the renouncing party. Where the term benefits both parties (as in an interest-bearing loan), neither may impose a unilateral renunciation absent a contractual or statutory provision. A debtor who pays early freely and without error cannot recover the payment (art. 1513 CCQ).

Forfeiture (déchéance du terme): The creditor may invoke forfeiture when the debtor's capacity to pay is jeopardized. Legal forfeiture arises under art. 1514 CCQ in cases of bankruptcy, insolvency, diminution of securities by the debtor's act without creditor consent, or failure to respect conditions under which the benefit of the term was granted. Contractual forfeiture clauses are permitted but subject to consumer protection and adhesion contract rules (arts. 1379, 1437 CCQ). Forfeiture by one debtor cannot be raised against co-debtors, even in solidary obligations (art. 1516 CCQ), although it does produce effects against a surety (art. 2354 CCQ).

The Extinctive Term

The extinctive term (terme extinctif) is a future and certain event whose occurrence marks the end of the debtor's obligations (art. 1517 CCQ). It is the standard mechanism for limiting successive-performance obligations in time. Its arrival constitutes a mode of extinction of the obligation (art. 1671 CCQ).

An extinctive term may take the form of a date, a period, a notice given by one party to end an indeterminate-duration contract, or any other future and certain event. Where determination of the extinctive term poses difficulty, the rules governing the suspensive term apply by analogy (arts. 1509, 1510, 1512 CCQ). Courts have recognized that certain contracts may be perpetual, provided this does not offend public order.

Plurality of Subjects

Where an obligation binds more than one creditor or more than one debtor, the relationships among the parties vary depending on whether the obligation is joint and divisible, indivisible, or solidary.

Joint and Divisible Obligations

An obligation is joint (conjointe) between debtors when each can be compelled to perform only up to their share of the debt (art. 1518 CCQ). Between creditors, the obligation is joint when each may demand only their share of the claim. A plural obligation is joint and divisible by operation of law (arts. 1519, 1525 CCQ), unless the law or the parties provide otherwise.

Joint and divisible obligations place the risk of one debtor's insolvency on the creditor. In the absence of factors indicating unequal shares, the debt is presumed to divide in equal parts, by analogy with the rule for solidary debts (art. 1537 CCQ). An obligation may be divisible between debtors yet solidary by statutory provision; for the obligation to be truly divided in execution, it must be both joint and divisible.

Indivisible Obligations

Indivisibility (indivisibilité) attaches to the object of the obligation and arises from two sources: the nature of the prestation (where it is not susceptible to material or intellectual division) or an express stipulation by the parties (art. 1519 CCQ). Natural indivisibility applies to most obligations to do, all obligations not to do, and obligations to transfer ownership. Stipulated indivisibility may render even monetary obligations indivisible regardless of their nature. A stipulation of solidarity alone does not confer indivisibility (art. 1521 CCQ).

The principal effect of indivisibility is that each creditor may demand the whole and each debtor may be compelled to perform the whole (art. 1520 CCQ). Indivisibility also transmits to heirs, unlike solidarity (art. 1520 CCQ), making it a valuable protective stipulation for creditors in case of a debtor's death. Interruption and suspension of prescription against one debtor benefit all creditors (arts. 2900, 2909 CCQ).

One area where indivisibility differs from solidarity concerns damages for non-performance: a condemnation in damages-interest is divisible among the co-debtors, except against the debtor responsible for the breach, who is liable for the whole (arts. 1624, 1625 CCQ).

Solidary Obligations Between Debtors

Passive solidarity (solidarité passive) allows the creditor to claim performance of the whole from any one debtor (art. 1523 CCQ). The obligation has a unity of object (one debt) and a plurality of links (multiple debtors).

Sources. A plural obligation is joint by default (art. 1525 CCQ). Solidarity arises by express stipulation, by statutory presumption for obligations contracted in the service or operation of an enterprise (art. 1525 CCQ), and by legal provision for co-authors of extra-contractual fault causing the same injury (art. 1526 CCQ).

Effects vis-à-vis the creditor. The creditor may choose which debtor to pursue (art. 1529 CCQ). The debtor pursued cannot claim the benefit of division (art. 1528 CCQ) or the benefit of discussion. A suit against one debtor does not prevent the creditor from suing others, provided the creditor does not recover more than the total owed (art. 1529 CCQ). The solidarity does not pass to heirs unless the obligation is also indivisible (art. 1540 CCQ).

Defences. A solidary debtor may raise common defences (payment, extinction, prescription), personal defences that reduce the total debt by the relevant debtor's share (express release, compensation, confusion), and purely personal defences (incapacity, defects of consent, term) that only the debtor concerned may invoke (art. 1530 CCQ). Failure to raise an available defence may be held against the debtor in contribution proceedings (art. 1539 CCQ).

Contribution among co-debtors. The debtor who pays more than their share exercises the rights of the common creditor by legal subrogation (art. 1656 CCQ), but the subrogated claim is stripped of solidarity (art. 1536 CCQ). Contribution is made in equal shares or in proportion to each co-debtor's interest in the debt (art. 1537 CCQ). Insolvency of one co-debtor is borne by the remaining solidary debtors (art. 1538 CCQ).

Renunciation of solidarity. The creditor may release one debtor from solidarity without releasing the debt itself. Tacit renunciation occurs when the creditor receives divisedly and without reservation the share of a solidary debtor (arts. 1533, 1534, 1535 CCQ). To protect the remaining co-debtors, the share of insolvency that would have been borne by the released debtor is assumed by the creditor (art. 1538 CCQ).

Solidary Obligations Between Creditors

Active solidarity (solidarité active) allows any one of several co-creditors to demand performance of the whole from the debtor (art. 1541 CCQ). It arises only from express contractual stipulation (art. 1541 CCQ) and is relatively rare. Payment to one co-creditor liberates the debtor toward all (art. 1542 CCQ). The debtor may choose which creditor to pay, unless one has already commenced proceedings (art. 1543 CCQ). Active solidarity does not pass to heirs (art. 1544 CCQ). Because insolvency of the co-creditor who received payment is borne by the other co-creditors, this modality carries risks and is seldom used in practice.

Imperfect Solidarity (In Solidum)

An obligation in solidum arises where co-debtors are each liable for the whole of the same debt, of distinct sources, without the obligation meeting the requirements of perfect solidarity or indivisibility. It produces the principal effect of solidarity (liability for the whole) without its secondary effects (mutual representation for prescription, demand, and other procedural consequences).

In Quebec civil law, imperfect solidarity fills gaps left by art. 1526 CCQ, which covers only co-authors of extra-contractual fault. The obligation in solidum applies where co-debtors are liable on different legal bases (one contractual and one extra-contractual), where liability rests on a purely objective basis without personal fault, where co-debtors breach distinct contracts causing the same injury, or under the subsidiary liability of professionals. The Supreme Court of Canada has confirmed its application under the Civil Code of Quebec (Code civil du Québec).

Plurality of Objects

When an obligation involves more than one prestation, the relationship among those prestations determines whether the obligation is conjunctive, alternative, or facultative.

Conjunctive Obligations

A conjunctive obligation (obligation conjonctive) requires the debtor to perform all specified prestations cumulatively. Failure to perform one amounts to partial performance and breaches the principle of indivisibility of payment (arts. 1522, 1561 CCQ). The CCQ does not provide a distinct regime for conjunctive obligations.

Alternative Obligations

An alternative obligation (obligation alternative) involves two or more prestations of equal rank; performance of any one liberates the debtor (art. 1545 CCQ). The debtor cannot perform parts of different prestations; each chosen prestation must be performed in full (art. 1547 CCQ). If one of the contemplated prestations cannot validly form the object of an obligation, the obligation is not alternative (art. 1545 CCQ).

The choice of prestation belongs to the debtor unless the parties agree otherwise (art. 1546 CCQ). If the party entitled to choose fails to do so, the other party may put them in default and, after expiry of the allotted time, make the choice instead (art. 1546 CCQ).

Impossibility of performance depends on who holds the right of choice:

Debtor's choice: If not all prestations become impossible, the debtor must choose an available one (art. 1548 CCQ). If all become impossible through the debtor's fault, the debtor is liable for the last available prestation (art. 1548 CCQ). If all become impossible through superior force, the debtor is liberated (art. 1550 CCQ).
Creditor's choice: If one prestation remains possible and the debtor is at fault, the creditor may require either specific performance of an available prestation or performance by equivalence of the impossible one (art. 1549 CCQ). If all prestations are impossible through the debtor's fault, the creditor selects one to claim by equivalence (art. 1549 CCQ).

Example: A supplier agrees to deliver either 100 units of Product A or 100 units of Product B, at the buyer's choice. Product A is destroyed by fire attributable to the supplier's negligence. The buyer may demand delivery of Product B in kind or damages equivalent to Product A.

Facultative Obligations

A facultative obligation (obligation facultative) involves a principal prestation and an accessory prestation; performance of either liberates the debtor (art. 1552 CCQ). Unlike an alternative obligation, the two prestations are not of equal rank: the accessory follows the principal. If the principal prestation is null (for instance, as contrary to public order), the debtor is not bound to the accessory. If the principal becomes impossible through fault, the debtor must perform the accessory or pay damages for non-performance of the principal. If the principal becomes impossible by superior force, the debtor is liberated altogether (art. 1552 CCQ).

The right of choice in a facultative obligation always belongs to the debtor, distinguishing it from both the alternative obligation (where the choice may be the creditor's) and the penal clause (where the creditor exercises the choice under art. 1622 CCQ).

Practice Checklist

Glossary

Condition (condition): A future and uncertain event affecting the existence of an obligation.
Conjunctive obligation (obligation conjonctive): An obligation requiring cumulative performance of all specified prestations.
Déchéance du terme (forfeiture of the term): Loss of the benefit of the term, rendering the obligation immediately exigible.
Divisible obligation (obligation divisible): An obligation whose object may be divided among multiple subjects.
Extinctive term (terme extinctif): A future and certain event whose arrival extinguishes the obligation.
Facultative obligation (obligation facultative): An obligation with a principal and an accessory prestation; performance of either liberates the debtor.
Imperfect solidarity / in solidum (solidarité imparfaite / obligation in solidum): Liability for the whole arising from distinct sources, without the secondary effects of perfect solidarity.
Indivisible obligation (obligation indivisible): An obligation whose object cannot be divided, requiring each debtor to perform the whole.
Joint obligation (obligation conjointe): An obligation where each debtor is liable only for their share.
Modality (modalité): A particular feature that modifies one of the elements of an obligation.
Obligation alternative (alternative obligation): An obligation with multiple prestations of equal rank; performing any one liberates the debtor.
Pendente conditione: The period of uncertainty before a condition is fulfilled or fails.
Potestative condition (condition potestative): A condition dependent, wholly or partly, on the will of one party.
Pure and simple obligation (obligation pure et simple): An obligation bearing no modality, immediately exigible.
Resolutory condition (condition résolutoire): A condition whose fulfilment extinguishes an existing obligation with retroactive effect.
Solidary obligation (obligation solidaire): An obligation allowing the creditor to demand the whole performance from any one co-debtor.
Suspensive condition (condition suspensive): A condition whose fulfilment gives rise to the obligation retroactively.
Suspensive term (terme suspensif): A future and certain event whose arrival renders the obligation exigible.
Term (terme): A future and certain event fixing the exigibility or extinction of an obligation.

References

Civil Code of Quebec (Code civil du Québec), CQLR c CCQ-1991, arts. 1372, 1438, 1456, 1497 to 1552, 1508 to 1517, 1518 to 1544, 1545 to 1552, 1599, 1622 to 1625, 1651, 1656, 1671, 1673, 1685, 1689, 1690, 1693, 1694, 1699 to 1702, 2354, 2875, 2880, 2900, 2903, 2909, 2924.
Code of Civil Procedure (Code de procédure civile), CQLR c C-25.01, arts. 328, 516.
Bankruptcy and Insolvency Act, RSC 1985, c B-3.
Consumer Protection Act (Loi sur la protection du consommateur), CQLR c P-40.1, arts. 104 to 110.

This article is provided for educational purposes and does not constitute legal advice. For guidance on a specific matter, consult a qualified Quebec lawyer or notary.

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