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Sainte-Foy, April 3, 2001

Proof of a 15 000$ loan: a photocopy of the contract may not be enough.

If you loan money, be sure to safeguard the original document establishing
the agreement.

In a case decided by the Cour du Qu�bec, Ren�e alleged that she had loaned
15 000$ to her daughter Janelle and to her brother Pierre, who operated a
company together. Not being reimbursed, Ren�e sued Pierre to obtain payment
of half of this amount and tried to file as exhibit a photocopy of that
which, according to her allegations, was the loan contract which had been
signed when she advanced the money.

In defense, Pierre denied having signed such a contract and added that if
there had been a loan, the borrower was the company in which he held shares
with Janelle.

By invoking the "best evidence rule", at the trial's beginning Pierre's
attorney objected that the photocopy be filed as evidence and demanded the
filing of the original version of the purported loan contract.

In reply, Ren�e's attorney relied on the second half of section 2860 of the
Quebec Civil Code and argued that Ren�e could file the photocopy as
secondary evidence since the original had been lost. This section reads as
follows:
  "A juridical act [for example, a loan contract, a deed of sale, a
shareholder agreement, etc.] set forth in a writing or the content of a
writing shall be proved by the production of the original or a copy which
legally replaces it [example: the true copy of a notarized document].

  However, where a party acting in good faith and with dispatch is unable to
produce the original of a writing or a copy which legally replaces it, proof
may be made by any other means."
However, the court underlined the fact that section 2862 of the Code
prohibited that the loan invoked by Ren�e be established by testimony:
  "Proof of a juridical act may not be made, between the parties, by
testimony where the value in dispute exceeds $1 500.

  However, failing proof in writing and regardless of the value in dispute,
proof may be made by testimony of any juridical act [carried out by a
person] in the ordinary course of business [...]."
In fact, Ren�e did not allege that she had loaned money to the company,
regarding which testimony would have been admissible in accordance with the
second part of section 2862, but rather that she had granted a personal loan
to Pierre and Janelle.

Furthermore, the court mentioned that for section 2860 to apply and
secondary evidence allowed, it had to be convinced of the existence of the
original loan document which was being relied upon.

The only indication of the existence of an original, which nobody had, was
Janelle's testimony to the effect that she had written the contract, had
signed it, had had Pierre sign it and had then made photocopies of it, which
she gave to each party. However, Janelle's testimony contained several
implausible aspects and the court did not believe her when she testified to
the effect that she did not know who had kept the original version of the
contract (Ren�e and Pierre stated that they had never had it in their
possession).

Finally, two handwriting experts who had examined Ren�e's photocopy were
heard as witnesses: one testified to the effect that Pierre's signature had
been forged, while the other said that nothing justified such a conclusion.

In light of these elements and since the 15 000$ had been transferred
directly from Ren�e's bank account to the company's, the court declared
itself incapable of determining who was right and concluded:
  - that Ren�e had failed in her obligation to establish the existence of
the original (which would have allowed her to invoke section 2860) and had
been negligent since she did not even know if an original of the loan
contract existed; and

  - that the evidence did not show that Ren�e had loaned money to Pierre
personally rather than to the company.
  Ren�e's action was therefore dismissed.
In other words, keeping the original version of an agreement in a safe place
is important.

[Posting date in our web site's "What's up?" section: 03/04/01. Court file
number: 480-22-000027-985. Judgment date: 11/12/00]

Beaulieu Normandeau

Avocats
Barristers & Solicitors

Place Iberville III
2960, boulevard Laurier, suite 40
Sainte-Foy (QC) G1V 4S1
Canada
Tel: (418) 652-1868
Fax: (418) 657-6728
Web site: www.beaulieunormandeau.com
e-mail: attorney@beaulieunormandeau.com

Operating out of the Quebec City suburb of Sainte-Foy in Canada, Beaulieu
Normandeau represents individuals and small, medium and large companies and
corporations by offering them practical and judicious strategies and
solutions in view of maintaining and facilitating their growth.

Our web site's main purpose is to share legal information with our clients
and the general public in a practical, dynamic and user-friendly manner. Its
main section, "What's up?", is updated every Monday and contains a brief
summary of our selection of recent judgments or of legal principles relating
to the business world that we deem important for people residing in Quebec
or who have interests here, and who wish to have a better understanding of
the workings of our legal system. This section allows visitors to our site
to subscribe to our free e-mail service to automatically receive our weekly
articles on business law, which our clients may also freely receive by fax
or snail mail.

Please note that the legal developments summarized above are shared as
general information only, do not constitute a full analysis or a legal
opinion on our part and do not establish a solicitor-client relationship.
Although our summaries take into account applying law at the moment of their
posting here and usually rely on a recent jurisprudential basis, and
although we do our utmost to post up-to-date information, the law discussed
here may be modified or may have been modified and the facts of the case are
not necessarily the same as those that may concern you. Be prudent and
consult an attorney before taking an important decision!

Any court file numbers and judgments referred to above truly exist. As to
judgments, the vast majority are subject to a delay between the date at
which they are rendered and the date at which they are available in
electronic databases. Finally, as to the identity of parties to a litigation
process, although such information is part of the public domain, our policy
is to refrain from posting it.

We appreciate your interest!

Copyright � 2001 Beaulieu Normandeau.

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<DIV align=3Dleft><FONT face=3DArial size=3D2>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>Sainte-Foy, April 3, 2001</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft><FONT color=3D#4b0000><STRONG>Proof of a 15 000$ loan: =
a photocopy=20
of the contract may not be enough.</STRONG></FONT></DIV>
<DIV align=3Dleft><FONT =
color=3D#4b0000><STRONG></STRONG></FONT>&nbsp;</DIV>
<DIV align=3Dleft>If you loan money, be sure to safeguard the original =
document=20
establishing the agreement.</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>In a case decided by the Cour du Qu=E9bec, Ren=E9e =
alleged that she=20
had loaned 15 000$ to her daughter Janelle and to her brother Pierre, =
who=20
operated a company together. Not being reimbursed, Ren=E9e sued Pierre =
to obtain=20
payment of half of this amount and tried to file as exhibit a photocopy =
of that=20
which, according to her allegations, was the loan contract which had =
been signed=20
when she advanced the money.</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>In defense, Pierre denied having signed such a =
contract and=20
added that if there had been a loan, the borrower was the company in =
which he=20
held shares with Janelle.</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>By invoking the "best evidence rule", at the trial's =
beginning=20
Pierre's attorney objected that the photocopy be filed as evidence and =
demanded=20
the filing of the original version of the purported loan contract.</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>In reply, Ren=E9e's attorney relied on the second half =
of section=20
2860 of the Quebec Civil Code and argued that Ren=E9e could file the =
photocopy as=20
secondary evidence since the original had been lost. This section reads =
as=20
follows:</DIV>
<BLOCKQUOTE dir=3Dltr style=3D"MARGIN-RIGHT: 0px">
  <DIV align=3Dleft>"A juridical act [for example, a loan contract, a =
deed of=20
  sale, a shareholder agreement, etc.] set forth in a writing or the =
content of=20
  a writing shall be proved by the production of the original or a copy =
which=20
  legally replaces it [example: the true copy of a notarized =
document].</DIV>
  <DIV align=3Dleft>&nbsp;</DIV>
  <DIV align=3Dleft>However, where a party acting in good faith and with =
dispatch=20
  is unable to produce the original of a writing or a copy which legally =

  replaces it, proof may be made by any other means."</DIV></BLOCKQUOTE>
<DIV align=3Dleft>However, the court underlined the fact that section =
2862 of the=20
Code prohibited that the loan invoked by Ren=E9e be established by=20
testimony:</DIV>
<BLOCKQUOTE dir=3Dltr style=3D"MARGIN-RIGHT: 0px">
  <DIV align=3Dleft>"Proof of a juridical act may not be made, between =
the=20
  parties, by testimony where the value in dispute exceeds $1 500.</DIV>
  <DIV align=3Dleft>&nbsp;</DIV>
  <DIV align=3Dleft>However, failing proof in writing and regardless of =
the value=20
  in dispute, proof may be made by testimony of any juridical act =
[carried out=20
  by a person] in the ordinary course of business =
[...]."</DIV></BLOCKQUOTE>
<DIV align=3Dleft>In fact, Ren=E9e did not allege that she had loaned =
money to the=20
company, regarding which testimony would have been admissible in =
accordance with=20
the second part of section 2862, but rather that she had granted a =
personal loan=20
to Pierre and Janelle.</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>Furthermore, the court mentioned that for section 2860 =
to apply=20
and secondary evidence allowed, it had to be convinced of the existence =
of the=20
original loan document which was being relied upon.</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>The only indication of the existence of an original, =
which=20
nobody had, was Janelle's testimony to the effect that she had written =
the=20
contract, had signed it, had had Pierre sign it and had then made =
photocopies of=20
it, which she gave to each party. However, Janelle's testimony contained =
several=20
implausible aspects and the court did not believe her when she testified =
to the=20
effect that she did not know who had kept the original version of the =
contract=20
(Ren=E9e and Pierre stated that they had never had it in their =
possession).</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>Finally, two handwriting experts who had examined =
Ren=E9e's=20
photocopy were heard as witnesses: one testified to the effect that =
Pierre's=20
signature had been forged, while the other said that nothing justified =
such a=20
conclusion.</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft>In light of these elements and since the 15 000$ had =
been=20
transferred directly from Ren=E9e's bank account to the company's, the =
court=20
declared itself incapable of determining who was right and =
concluded:</DIV>
<BLOCKQUOTE dir=3Dltr style=3D"MARGIN-RIGHT: 0px">
  <DIV align=3Dleft>- that Ren=E9e had failed in her obligation to =
establish the=20
  existence of the original (which would have allowed her to invoke =
section=20
  2860) and had been negligent since she did not even know if an =
original of the=20
  loan contract existed; and</DIV>
  <DIV align=3Dleft>&nbsp;</DIV>
  <DIV align=3Dleft>- that the evidence did not show that Ren=E9e had =
loaned money=20
  to Pierre personally rather than to the company.<BR>Ren=E9e's action =
was=20
  therefore dismissed.</DIV></BLOCKQUOTE>
<DIV align=3Dleft>In other words, keeping the original version of an =
agreement in=20
a safe place is important.</DIV>
<DIV align=3Dleft>&nbsp;</DIV>
<DIV align=3Dleft><FONT size=3D1>[Posting date in our web site's "<A=20
href=3D"http://www.beaulieunormandeau.com/new.htm"><FONT =
color=3D#000080>What's=20
up?</FONT></A>" section: 03/04/01. Court file number: 480-22-000027-985. =

Judgment date: 11/12/00]</FONT></FONT></DIV></DIV>
<DIV align=3Dleft><FONT color=3D#800000><FONT face=3DArial =
color=3D#000000=20
size=3D2></FONT>&nbsp;</DIV>
<DIV align=3Dcenter></FONT><FONT size=3D5>Beaulieu =
Normandeau</FONT></DIV>
<DIV align=3Dcenter><IMG alt=3DJustice hspace=3D0=20
src=3D"C:\Program Files\Fichiers communs\Microsoft Shared\Papier =E0 =
lettres\Justice.gif"=20
align=3Dbaseline border=3D0></DIV>
<DIV align=3Dcenter><FONT face=3DArial><FONT =
size=3D1>Avocats<BR>Barristers &amp;=20
Solicitors</FONT></FONT></DIV>
<DIV align=3Dcenter><FONT face=3DArial size=3D1></FONT>&nbsp;</DIV>
<DIV align=3Dcenter><FONT face=3DArial><FONT size=3D1>Place Iberville =
III<BR>2960,=20
boulevard Laurier, suite 40<BR>Sainte-Foy (QC) G1V 4S1<BR>Canada<BR>Tel: =
(418)=20
652-1868<BR>Fax: (418) 657-6728<BR>Web site: </FONT><A=20
href=3D"http://www.beaulieunormandeau.com"><FONT color=3D#000080=20
size=3D1>www.beaulieunormandeau.com</FONT></A><BR><FONT size=3D1>e-mail: =
</FONT><A=20
href=3D"mailto:attorney@beaulieunormandeau.com"><FONT color=3D#000080=20
size=3D1>attorney@beaulieunormandeau.com</FONT></A></FONT></DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2></FONT>&nbsp;</DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D1>Operating out of the =
Quebec City suburb=20
of Sainte-Foy in Canada, Beaulieu Normandeau represents individuals and =
small,=20
medium and large companies and corporations by offering them practical =
and=20
judicious strategies and solutions in view of maintaining and =
facilitating their=20
growth.</FONT></DIV>
<DIV><FONT face=3DArial size=3D1></FONT>&nbsp;</DIV>
<DIV><FONT face=3DArial size=3D1>Our web site's main purpose is to share =
legal=20
information with our clients and the general public in a practical, =
dynamic and=20
user-friendly manner. Its main section, "<A=20
href=3D"http://www.beaulieunormandeau.com/new.htm"><FONT =
color=3D#000080>What's=20
up?</FONT></A>", is updated every Monday and contains a brief summary of =
our=20
selection of recent judgments or of legal principles relating to the =
business=20
world that we deem important for people residing in Quebec or who have =
interests=20
here, and who wish to have a better understanding of the workings of our =
legal=20
system. This section allows visitors to our site to subscribe to our =
free e-mail=20
service to automatically receive our weekly articles on business law,=20
which&nbsp;our clients may also freely receive&nbsp;by fax or snail=20
mail.</FONT></DIV>
<DIV><FONT face=3DArial size=3D1></FONT>&nbsp;</DIV>
<DIV><FONT face=3DArial size=3D1>Please note that the legal developments =
summarized=20
above are shared as general information only, do not constitute a full =
analysis=20
or a legal opinion on our part and do not establish a solicitor-client=20
relationship. Although our summaries take into account applying law at =
the=20
moment of their posting here and usually rely on a recent =
jurisprudential basis,=20
and although we do our utmost to post up-to-date information, the law =
discussed=20
here may be modified or may have been modified and the facts of the case =
are not=20
necessarily the same as those that may concern you. Be prudent and =
consult an=20
attorney before taking an important decision!</DIV>
<DIV><FONT size=3D2></FONT>&nbsp;</DIV>
<DIV align=3Dleft>Any court file numbers and judgments referred to above =
truly=20
exist. As to judgments, the vast majority are subject to a delay between =
the=20
date at which they are rendered and the date at which they are available =
in=20
electronic databases. Finally, as to the identity of parties to a =
litigation=20
process, although such information is part of the public domain, our =
policy is=20
to refrain from posting it.</DIV>
<DIV><FONT size=3D2></FONT>&nbsp;</DIV>
<DIV align=3Dleft>We appreciate&nbsp;your interest!</DIV>
<DIV align=3Dleft><FONT size=3D2></FONT>&nbsp;</DIV>
<DIV align=3Dleft>Copyright =A9 2001 Beaulieu =
Normandeau.</FONT></DIV></BODY></HTML>

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