Civil law property final exam notes (robert godin) april 2007

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Art. 301

Legal persons have full enjoyment of civil rights.

Art. 316

In case of fraud with regard to the legal person, the court may, on the application of an interested person, hold the founders, directors, other senior officers or members of the legal person who have participated in the alleged act or derived personal profit therefrom liable, to the extent it indicates, for any damage suffered by the legal person.

The role of the state and its special status as a legal person (State enterprises)

  • Historically the state was above the law and the legal system

  • Art. 300 (new article): state corporations as legal person established in the common interest, primarily governed by special act applicable to its kind

      • The state is subject to the law in these areas, not governed by a special regime

      • So crown and state corporations have a special regime, but it has become very restricted into the limits of the law

Art. 300

Legal persons established in the public interest are primarily governed by the special Acts by which they are constituted and by those which are applicable to them; legal persons established for a private interest are primarily governed by the Acts applicable to their particular type.

Both kinds of legal persons are also governed by this Code where the provisions of such Acts require to be complemented, particularly with regard to their status as legal persons, their property or their relations with other persons.

Different kinds of persons
What do we look at when we look at the person?

Personne physique: age, marital status, domicile, nationality

  • In private international law, different laws can apply depending on the person, lived, died etc

  • Personne moral: legal rules may depend on where a corporation was formed or sometimes on where it operates

      • Sometime we look at how it was incorporated

      • Given the nature on what it does

      • Whether the internal governance follows the proper regulations

There is a whole new article in the new code that deals with enterprises

  • Art 1525.3 The carrying on of an organized economic activity by several person constitutes the carrying on of an enterprise

  • Also arts. 2683, 2684, 2685 and 2686 deal with enterprises exclusively

  • Enterprise is defined as an activity more than a legal person

Art. 1525.3

The carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property, or providing a service, constitutes the carrying on of an enterprise.

Art. 2683

Except where he operates an enterprise and the hypothec is charged on the property of that enterprise, a natural person may grant a movable hypothec without delivery only on road vehicles or other movable property determined by regulation and subject to the conditions determined by regulation.

Where the act constituting the hypothec is accessory to a consumer contract, it is subject to the rules as to form and contents prescribed by this Book or by regulation.

Art. 2684

Only a person or a trustee carrying on an enterprise may grant a hypothec on a universality of property, movable or immovable, present or future, corporeal or incorporeal.

The person or trustee may thus hypothecate animals, tools or equipment pertaining to the enterprise, claims and customer accounts, patents and trademarks, or corporeal movables included in the assets of any of his enterprises kept for sale, lease or processing in the manufacture or transformation of property intended for sale, for lease or for use in providing a service.

Art. 2685

Only a person carrying on an enterprise may grant a hypothec on a movable represented by a bill of lading.

Art. 2686

Only a person or a trustee carrying on an enterprise may grant a floating hypothec on the property of the enterprise.

Other organizations that have no juridical personality

  • Partnerships; the debate in Quebec is still on whether the partnership has juridical personality part from that of the partners

Another interesting are is that of trusts

  • We have some assets that don’t belong to anybody and in which trustees and beneficiaries have no real right

  • The body itself has no juridical personality

  • Art. 1261

Art. 1261

The trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right.

A syndicate is a special kind of legal person not subject under company law but regulated as a legal person

  • Art 1039

Art. 1039

Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights appurtenant to the immovable or the co-ownership and to take all measures of common interest.

The legal person is called a syndicate.

L’objet du droit
Movable vs. immovable property: not as important as before but nonetheless important

  • Real state, land was immovable property

  • Machinery, valuables are movable and were considered of less value

  • Today wealth is expressed in movable property unlike it was before
  • In the old code, immovable property was subject to developed and sophisticated control; the distinctions today are not as great

There is property which cannot be used as property of commerce

State property sometimes, sacred properties, cultural property
There are certain things that belong to no one

  • Some can be appropriated but some cannot

  • Those that cannot are res communes

      • E.g. air, water

      • Art 1913

  • Others called res nullius can be appropriated by occupation

      • E.g wild animals

      • 1914: res nullius can be appropriated if the person intends to become the owner

Art. 913

Certain things may not be appropriated; their use, common to all, is governed by general laws and, in certain respects, by this Code.

However, water and air not intended for public utility may be appropriated if collected and placed in receptacles.

Art. 914

Certain other things, being without an owner, are not the object of any right, but may nevertheless be appropriated by occupation if the person taking them does so with the intention of becoming their owner.

The new code has also made a distinction between capital:, usufruct and objects

La Nature du droit
Very different in civil and common law

In civil law the distinctions come from two aspects:

  • When there is an immediate relationship through ownership

      • The term to describe these kinds of rights is real rights

      • The real right is the right of ownership, no creditor no debtor

      • The dismemberment of real rights are treated as real rights (questions of publication, registration etc)

  • When the relationships is between two person with respect to an object, then there is an indirect relationship; the relationship to the object is through someone else

      • E.g. lease

      • These are called personal rights

The Civil Code
The centerpiece of civil law
Old code 1866

  • Main object was to codify what was perceived as being the law in force of the time

  • Those who created were given the tasks to write down what they saw the law at the time and put the changes they wanted to see in ( )

  • The Napoleonic code of 1804 was use and had a strong influence particularly in the areas of property, obligations

    • In family it was quite different

    • Some impact from law in England

  • In 1955 it was very outdated and needed a rejuvenated, so the government at the time started a commission to re-draft the code

    • A process that took 40 years

What is codification?

  • In one sense (from a mechanical point of view) a civil code is just a statute and its official references are statutes of Quebec Ch.64 just like any other statutes

  • Changes are made to it and have been made to the new code

What is so special about the civil code?

  • A fundamental unity in the selection if what is held and viewed and the topic to be treated

      • Man and man’s activities

      • In that case the code does only a partial job, there are many aspects of people’s lives that are not contained in it but it does cover large areas and tremendous amount of material

  • A coherent structural arrangement and style of expression

      • All the sections of the code are designed to interact with each other

      • One aspect of the drafting itself is that the code deals in generalities (the terms are general); it is more complicated when dealing with very specific issues

        • Very few definitions in the code; if there are any they are very broad and open to interpretation

        • The definition is then drawn from practice, the environment, the courts and adopted in time

        • Cases play a role in interpreting, explaining but precedence does not play the same role

The rules of the code are suppletive

  • The articles of the code are not obligatory, they are there to supplement, to serve as general outlines, and be able to be adapted to different situations

  • Art. 9 makes reference to this

Art. 9

In the exercise of civil rights, derogations may be made from those rules of this Code which supplement intention, but not from those of public order.

  • Parties can adapt element to the code subject to the rules of public order (these are some provision that are in fact obligatory); you can often tell by the wording

    • E.g. Art 391 on the rights and duties of spouses

    • Art. 952 right of property

    • Art 1801

    • Art. 2824 No prescriptive period other than the ones that are provided by law to be used

      • Describes how rights can be owned or lost through time (acquisitive and extinctive prescription)

    • Art. 1101 refers to votes and condominiums

    • Art. 2936 with respect to registration of contracts

  • The civil code enables the parties and their counsels to prepare agreements within the provision of the law (the code serves as an infrastructure and background to the contracts of the parties)

  • The suppletive articles are well known

  • Example: in the context of warranties on sale, the warranties exist whether they exist of not in the contract of sale art. 1716 (conventional warranties)

      • So the articles that follow can be included in the contract of sale but are not necessary

The Preliminary Provision of the Code
J. E. C. Brierly “The New Civil Code of Quebec”: How many common laws are there in Quebec? In

Quebec’s common law (the prevailing system of law, not the same as in Britain)

  1. Implicit norms that are part of the system
    • Every code as complete as it may be presupposes general maxims and principles of reasoning; it would be unwise to make laws to cover all cases of principles of every community which lie outside the body of the law

  2. Since there such a diversity of sources that have contributed to create this code, it makes it the result of common law; e.g. the Code de Napoleon, traditional civil traditions, commercial laws from England, constitutional acts, international treaties

  3. The civil code is certainly the major source of private law, but it only inspires the way in which statutory law is made

    • The civil code has a status of common law because of the scope of its regulation and its language, which is used in statutes and legislation outside the domains of the code

Preliminary Provision

The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although.

The influence of the civil code has changed over time

  • Significant change after the Quiet Revolution

The preliminary provision

  • At the beginning of the code, though is not to be considered legally a preamble (it is one of the elements of the CCQ in its own right)

  • Historically it was hard to agree whether to have a preliminary provision or not

  • Sets the role that the legislature intends the code to play; gives the code its right position within the system

  • States that the Code is not just another statute

  • Interesting elements of the preliminary provision

      • The relationship between the Code and the Charter of Human Rights and Freedom: gives them an equal standing

        • The code thus has a dominant position n our system

      • Reference to the general provision of the law; acknowledges all the sources that presuppose the code but are not legislated

      • Central position that the code will play in the system as a whole in terms of drafting other laws and statutes

  • The impact of the preliminary provision has been quite significant

      • It has been brought into Supreme Law cases, which primarily drew from common law

Until the Code was amended and entered into force, there was a general understanding within the business community that the code could be taken lightly and that they were bound by others municipal statute laws

  • In a recent case of the Supreme Court of Canada were there was a difference between a municipal statute and the code in an issue of prescription, the code was upheld and deemed to take priority [1997] 2 S.C.R. 862, Dore v. Verdun

  • There were some disparities between the English and French versions of the code, but the SC ruled that one could not overwrite the other; you have to give the best interpretation that you can based on the two languages

  • The Code has come to play a very influential role and has come to affect legislation and the drafting of legislation

      • When some legislation is to override specific points of the Code, it should do so explicitly
  • An area that is still difficult is that of interactions between the Code and public statutes

      • E.g. environmental matters

Some definitions and distinctions

  • Jus commune: the general law of the land; basic principles undue which our society operates

  • Common law: the law contained within the common law system

Relationship of the Code with other legislation

  • The Code is the foundations of all other laws (preliminary provision)

  • In its implementation (the Code was sanctioned in December 18 1991), it was stated that the Code would come into force based on a statute of the executive which only came into being one year later

      • The Code will come into force when decided by a government order which should be organized at least 6 months before the event

      • The order was adopted in the summer of 1993 and the Code came into effect in January 1st 1994

  • How did it come into effect? 3 stages (look at the statute on its implementation appended to the Code – Act Respecting the Implementation of the Code)

      • Transitional provisions

      • Amendment to the procedural infrastructure that would serve the new Code

      • Amendment to existing statutes

        • For instance, a statute in 1999 amended 350 old statutes to reflect the letter of the new Code

  • It became apparent that Federal law also had to be harmonized

      • There is no such thing as Federal Common Law; there are statutes but common law depends on the provinces
        • E.g. Bankruptcy is Federal, but law of contracts are provincial

      • So a process was begun in Ottawa in the Federal Justice Department to harmonize Federal Law with Quebec Civil Law and Bijuralisme

        • When civil law and common law have different meaning in an issue, the common law will be adopted outside Quebec and the civil law in Quebec

          • E.g. the concept of mortgage is not applicable in Quebec as it is different to Hypotheque

The question of transition

  • Quebec legislature inspired by Paul Roubier’s “Transitionl law” decided on the following 5 principles

      • Principle of non-retroactivity

      • Immediate effect; key elements to the success of the transition

      • Continued application of the suppletive nature of provisions

      • With respect to rules of public order (imperative provisions); if something was permitted under the old code but wasn’t under the new code, then it was not allowed any longer

        • If something was against public order before and was now permitted, it would be allowed to happen and could not be invalidated based on the fact that it was against public order before

      • Proceedings pending continue to be governed by the former legislation

        • But the new rules of procedure
          and evidence would come under the new law immediately

        • This would also not take place for proceedings that had retroactive effects or if rights were being granted under these proceedings

Definition of Property (Les Bien)

In the law, property does not specifically mean objects, but includes a notion of rights

  • The nature of the object does not change with indivision and right of ownership

The determination of the worth of the particular object flows from the right the person has to the object

  • The nature of the relationship between the person and the object is what determines how valuable it is to the sujet du droit; what matters is not the patrimony itself but the right to it

  • Objects become property when they are subject to rights

Codes have not really made a distinction between biens et choses

  • Art. 899: Property whether corporal or not is divided into movables and immovables

      • Does not make the distinction between the “thing” and the right to it

      • Les commentaires du ministre de la justice state that this word is common usage so there is no need to define it1

  • In practice, you should try to be aware of this distinction, nonetheless

      • How do you determine the value of a building?

        • The value of the materials

        • The cost to replace it

        • The revenue and cash flows that it generates

      • So the nature of the rights then is a determining factor (what is the nature of ownership, etc)

Terré & Philippe Simler, in "Droit civil: Les biens, Précis Dalloz?

  • The word bien can be understood in several ways

      • As a thing (chose)

      • As rights between people, with respect to people (personal) or things (real)

Gabriel Marty and Pierre Raynaud

  • Dans une première vue, les biens ce sont les choses
  • But, for the Jurist things are only “Biens” as long as they are the objects of Real Rights

Christophe Caron et Hervé Lécuyer

  • In the First sense, are things that serve man’s Use and to Satisfy his desires

    • They must be appropriable

  • In the Second Sense, Rights that bear on things – both corporeal and incorporeal  things

There is a reference to property and biens in the Quebec Charter of Rights and Freedoms

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