Michael Fleming, ur-commenter on this blog, sent me the following extract from a Canadian lease, asking me what I thought of “resiliate”:
Should the Tenant default on any of the above-mentioned monthly payments at the date when due the balance of the present lease will become due, entirely, without prejudice to the right of the Landlord to resiliate the present lease plus all rent due and re-rental expenses, ipso facto.
The verb resiliate is a Canadian-English borrowing from the French résilier. (The closest you get in American English is resile, for which Black’s Law Dictionary offers as a definition “To draw back (from an agreement, contract, etc.”)
A useful discussion of resiliate can be found in this analysis issued by the Montréal office of the law firm Stikeman Elliott. (That provides me with an excuse to give a shout-out to Kevin Kyte—yo, Kevin!—although the analysis was prepared by Olivier Boulva.)
This is from Stikeman’s analysis:
As we explained in our earlier series, an automatic resiliation clause allows a lessor to “resiliate”, or cancel, a lease as of right (that is, automatically) if the lessee is in default, without the necessity of having recourse to the courts. This extrajudicial resiliation clause is also called an “ipso facto”, “automatic” or “as of right” clause. The extrajudicial resiliation has immediate effect, and, accordingly, the contractual relationship between the parties comes to an immediate end without any judicial proceedings.
So apparently Québec courts don’t insist that contracts use the word resiliate, thank goodness. (Whoever drafted the language Michael sent me elected to use two buzz-phrases, resiliate and ipso facto.) That being the case, I recommend that you refer instead to automatic termination, to avoid perplexing those unfamiliar with Québec terms of art. If you nevertheless want to use resiliate, I suggest that you include it in brackets after referring to automatic termination, as if resiliate were a term of art in another language. (Go here for my post on stating a term of art in two languages.)
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For my post about a French-English “false friend” that appears in Québec contracts, go here.
