2012 QCCQ 11044, 2012 QCCQ 11044

JH 5371 Langman c. Attias 2012 QCCQ 11044 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-120757-093 DATE: October 31, 2012 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ BOAZ LANGMAN Pliantiff v.

MICHEL ATTIAS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Boaz Langman seeks judgment in the amount of $6,990.00 against Michel Attias, in reimbursement of amounts he paid to the creditors of 9203-0675 Québec Inc. (the Bakery) that the parties were shareholders in. [ 2 ] Michel Attias contests his liability alleging that he was never personally responsible for the debts of the Bakery, nor was Mr. Langman. He also argues that he was never put on demand to pay these debts prior to Mr.

Langman taking it upon himself to do so. THE FACTS [ 3 ] The parties were shareholders of the Bakery for a short period of time in 2009. Both parties declare having invested some $30.000.00 in the business. Mr. Langman was responsible for operations and accounts. Mr. Attias was, as he states, the "silent partner". [ 4 ] After six to eight weeks, the parties were not in agreement as to the operations of the Bakery. Mr. Langman apparently found a purchaser for the business. Mr. Attias did not agree to the price. He then chose to buy Mr. Langman's shares and later sold the entire business. [ 5 ] The sale of Mr.

Langman's shares took place on March 30, 2009. Sometime later, Mr. Langman paid certain of the Bakery's creditors for the total amount of $6,990.00. Mr. Langman admits that he had no personal responsibility to these creditors. He states that he paid them because " I do business with these people " . It is in evidence that none of these creditors ever made a claim against the Bakery, nor either of the parties. Mr. Langman also admits that he made no demand either in writing or verbally to Mr. Attias to pay these creditors before he took it upon himself to do so. ANALYSIS AND DECISION [ 6 ] Mr. Langman invokes

article 4 of the sale agreement between the parties. He argues that this

article obliges Mr. Attias personally to reimburse him the sums he paid to the creditors. [ 7 ] Mr. Attias declares, notwithstanding

article 4 of the agreement that he was never aware of any of the creditors paid by Mr. Langman. [ 8 ] The

article invoked by Mr. Langman reads: 4) That as additional consideration, the Purchaser [1] acknowledges that he is aware of the liabilities of the Company and agrees to hold the Vendor [2] harmless from any and all of the said liabilities including without limitation the balance due on the lease with Canadian Leasing Enterprise for equipment garnishing the business premises, a copy of said Lease is attached hereto as

Schedule "A"; [ 9 ] This

article does not create any obligation on the part of either party to pay the Bakery's debts ("aware of the liabilities of the Company "). It simply states that if Mr. Langman (the Vendor) is sued by a creditor, Mr. Attias (the Purchaser) will "hold him harmless".

[ 10 ] Defending Mr. Langman means that Mr. Attias would have been allowed to invoke all the means of defence at Mr. Langman's disposal. The obvious defence would have been to plead that the Bakery alone was responsible for these debts. [ 11 ] It is only if Mr. Attias was not successful in defending Mr. Langman and that he was condemned to pay the Bakery's debts that the «hold harmless» obligation would have come in to force. Mr. Attias would then have been obliged to indemnify Mr. Langman. [ 12 ] Here, since Mr. Langman had no obligation to pay, Mr.

Attias would have obviously obtained the dismissal of any claim against him. As confirmation of this, one of the creditors of the Bakery was heard at trial. Mr. Michael Ohana did the renovations of the Bakery's premises. He has admitted that he contracted with the Bakery alone. [ 13 ] The facts show that the Bakery was never sued by its creditors nor was Mr. Langman. The Bakery alone was responsible, not Mr. Langman. Nothing in fact or in law can lead the Court to decide that Mr. Attias has any responsibility to reimburse Mr.

Langman of what he chose to pay personally. [ 14 ] If this were not sufficient to dismiss the claim, there is more. Even if Mr. Langman had been liable unto the creditors he paid, he did not, prior to his payments, put Mr. Attias on demand to execute his alleged obligations under

article 4 of the agreement. This is fatal to his claim. [ 15 ] The Civil Code provides the following rules concerning demand: 1590. An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and without delay.

Where the debtor fails to perform his obligation without justification on his part and he is in default , the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence, (1) force specific performance of the obligation; (2) obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or the reduction of his own correlative obligation; (3) take any other measure provided by law to enforce his right to the performance of the obligation. 1595.

The extrajudicial demand by which a creditor puts his debtor in default shall be made in writing . If the demand does not allow the debtor sufficient time for performance, having regard to the nature of the obligation and the circumstances, the debtor may perform the obligation within a reasonable time after the demand. (Emphasis added) [ 16 ] In sum, since Mr. Attias (the debtor) was never advised before the fact of Mr. Langman's (the creditor) contentions, he cannot be held liable. [ 17 ] For both the above reasons, Mr. Langman's claim must fail.

FOR THESE REASONS, THE COURT: DISMISSES the claim with judicial costs in the amount of $157,00. __________________________________ Scott Hughes, J.C.Q. Date of hearing: July 27 th , 2012.