Sources of the Civil Law 2

Contents

Origins of Québec Civil Law 2

Sources of the Civil Law 2

The Code (incl. Preliminary Provisions, CCQ) 2

Things, Rights, and Property (incl. articles 899-915) 3

Patrimony (incl. art. 2, 302, 414-415, 625, 780, 2644-2646) 3

Extra-Patrimonial Rights (incl. art. 1-10, 35-36, 302, 537, 1212-1217, 1610, 2668) 4

Patrimony and Juridical Personality (incl. art. 1, 4, 298-299, 301, 303, 2186, 2188, 2199, 2208, 2211, 2221) 6

Patrimony by Appropriation (incl. art. 915, 1260-1265) 7

Real and Personal Rights (incl. art. 911-912, 947, 1119, 1371, 1373, 1440, 1453-1455, 1851-1852, 1897, 2644-2647, 2660-2661, 2751, 2923-2925) 8

Critique of the Distinction Between Real and Personal Rights 10

Movable and Immovable Property (incl. art. 899-907, 2672) 11

Publication (incl. art. 2938, 2941) 16

Intellectual Rights 17

Other Distinctions (incl art. 908-910, 1120, 1127, 1160, 2313-2314) 19

Domain: History of Land Tenures 19

Public Domain (incl. art. 298-300, 915-920, 2645, 2668) 21

Common Property: Water (incl. art. 913, 916-920, 979-983) 22

Justification of Property (guest lecture by David Lametti) 24

Ownership (Arts. 947-953, 977-978 CCQ; arts. 787-794 CCP) 24

Limitations on the exercise of the right of ownership (Arts. 6-7, 976-1001, 1457 CCQ; arts. 751-752 CCP) 25

Possession (Arts. 911, 916, 921-933, 992, 2875, 2876, 2910-2920 CCQ; arts. 805-806 CCP) 27

Occupation and Accession (Arts. 913-914, 934-939, 948, 954-975 CCQ) 28

Undivided co-ownership (Arts. 1002-1010, 1012-1037, 1519 CCQ; arts. 689-690, 710 CCLC) 30

Usufruct (Arts. 1119, 1120-1171 CCQ) 32

Servitudes (Arts. 1119, 1177-1194 CCQ) 34

Numerus clausus (Arts. 947, 1009, 1119 CCQ) 37

Trusts and Substitutions (Arts. 1218-1296 CCQ) 39

Aboriginal Rights 40

Articles from the Code of Civil Procedure: 41

Articles from the Civil Code of Lower Canada 43

Origins of Québec Civil Law

What are the key stages in the development of Quebec civil law?

Custom of Paris

English occupation (1760)

Ordinance imposing common law (1764)

Report on lack of uptake of common law (1766)

Quebec Act revert to back to Civil Law (1774)

CCLC (1866)

CCQ (1994)

In what sense is Quebec law a mixed legal system?

Freedom of testation one example (Dainow)

Sources of the Civil Law

What are the sources of civil law in general and property law in particular?

Brierley & MacDonald, The Civil Code and the Sources of Civil Law: Legislation is the prime source of law, and the code has a unique place in civilian systems. It is inferior to the constitution, and can be amended by any statute, but is otherwise quasi-constitutional. Other sources of law include custom, decided cases, and doctrine, general law principles (e.g. common law principles) and contracts.

The Code (incl. Preliminary Provisions, CCQ)

What is the place of the Civil Code in the civil law of Québec?

It acts as the central source of common law in Québec; it directly prescribes actions in a multitude of areas of society. It is thejus communeof the province.

Brierley, The Renewal of Quebec’s Legal Culture: The New Civil Code of Quebec:

§  Social constitution; law of the land; fundamental reference point; new code – new self-affirmation

§  Scope—codification aimed to reduce all private law to a single authoritative bilingual document, consolidating legislation, cases, and doctrine. It may harmonize with other legal systems, e.g. Human Rights Code of Ontario. All kinds of people are involved: special interests, law professors, judges, government, and the public. Fundamental principles may be reexamined.

§  How—it deals with every stage (birth, marriage, death, etc.) of your private life; the Romans and Napoleon were never that interested in the public side, left to constitutions and Charters. A code is made up of books: persons, things, and transactions. The CCLC added a fourth, commercial laws. The CCQ now has ten. The style is general, using “open-textured” ideas like good faith, public order, equity, abuse of rights, abusive clauses, general interest, etc. It tends to be articulated through legal taxonomy.

(i)  Imperative rules are strict rules that cannot be changed using contracts, often preceded by the words “notwithstanding any agreement to the contrary.”

(ii)  Suppletive rules are default rules that apply unless expressly excluded, allowing the code to be permissive rather than always calling for obedience.

What role has codification played in the development of Québec civil law? of Québec society?

(Brierley) It truly distinguished Québec society from the common law tradition surrounding its formation, as well as affirming a need for clarity and citizens-oriented interest which clashes with third-party perception of the common law. In society, it affirmed the new rationalism that supplanted the previous religious society. Codification, in the end, affirmed Québec as a distinct nation.

What is distinctive about a civil code?

(Brierley) It is a consolidated form of the law, as opposed to the more disparate form of legislative law found federally in largely disparate acts. It pretends that one can rationally delimit human conduct in a largely context-devoid manner. It is, in the terms of the readings, a 'social constitution'.

What are some of the criticisms that could belevelledat the Civil Code of Québec?

As a fundamental starting point of the law, one could ask whether certain inclusions should truly fall within the code since this would be to give them a fundamental,jus communestatus. One may beyond that criticize its style, which is often rather general and unspecific, although this latter point is rather a question of ideological preferences than flaw. There is also a difficulty in distinguishing imperative propositions from merely suppletive ones.

Legrand, “Bureaucrats at Play: The New Quebec Civil Code”

o  Legal fiction (code crafts world that drafters want to live in), too general

o  CCQ is translated poorly

o  Form dilutes substance (some articles deal with paperwork procedure)

Things, Rights, and Property (incl. articles 899-915)

What is the meaning of "property", "thing", "right"?

'Thing' is a non-human (possibly non-animal) existent. The term property designates material things over which there exists a right of ownership. (Dict. of Obligations) Rights, esp. patrimonial rights, are those rights which by essence have monetary value: they can be alienated, transmitted, sold, seized, etc.

Baffitol, Problèmes contemporains de la notion de biens

§  The notion of property engages the notion of person, personality.

§  Thing can be narrowly interpreted to include only corporeal objects, or broadly to include incorporeal.

§  Right: source of claims against one or more people

What is the difference between "bien" and "chose"?

A 'bien' is the object of a right, whereas a 'chose' may or may not be.

How do these concepts relate to each other?

Property is a specific right that relates an owner with a 'thing'

Why are they considered to be fundamental to civil law property?

Because they are the very objet of ownership rights.

Comments:

(6) Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law. -Québec Charter

Patrimony (incl. art. 2, 302, 414-415, 625, 780, 2644-2646)

What is the analytical function of the patrimony?

The function of the patrimony regards the relationship between a person's rights and debts. Its function relates to the ability to take on new rights and debts, as well as one's obligation towards debtors.

What is the essence of the two theories of patrimony and how do they diverge?

The first defines patrimony as the sum of property, which is an object to which a right is attached, as well as the total outcome (fruits and revenues) of such property. It is, thus, an emanation of personality, and the expression of the juridical power recognised/possessed by a person. Patrimony is indivisible, and contains both rights and 'charges' (debts), present and future. The patrimony is the 'container' in which those rights and charges are contained; it does not change as those rights and charges are moved to and fro. All rights may be transmitted, but the patrimony itself cannot, for the person does not lose the capacity to gain new rights. "Le lien établi par la doctrine classique entre le patrimoine et la personnalité est tel qu'on n'arrive plus à les distinguer". (Ghestin & Goubeaux, Traité de droit civil: introduction générale)

The second, the "patrimoine d'affectation", defines patrimony by reference to a particular goal appended to the rights and charges, which enables creation of patrimony without a subject. In this sense, a person could separate its patrimony into one of professional interest, and one of family interest. Various degrees of limitations to the creation and separation of patrimony are defined by different proponents of this approach.

Classical theory (Aubry & Rau, Cours de droit civil d’après la méthode de Zachariae):

§  1) Everyone has a patrimony (although it can be empty, or contain only debts).

§  2) Only legal persons can have a patrimony – it is attached to personality

§  3) Patrimonies are indivisible/a person can have only one patrimony.

§  4) Patrimonies are intransmissible (but not their contents!) while the subject is alive.

§ 

Objective theory (Ghestin): “Le patrimoine est un ensemble de droits et de charges, actuels et futures, dans lequel les droits répondent des charges… traduit juridiquement, la formule vise l’ensemble de droits que la personne considérée pourrait transférer à autrui contre argent.”

Which theory of patrimony does the C.c.Q. embrace?

It appears to endorse the affectation conception of patrimony, for it not only refers to affectation, but also to division of patrimony in line with affectation.

Comments:

"Le patrimoine est l'ensemble des biens d'une personne, envisagé comme formant une universalité de droit." -Aubry & Rau

Extra-Patrimonial Rights (incl. art. 1-10, 35-36, 302, 537, 1212-1217, 1610, 2668)

Why does the law distinguish between patrimonial and extra-patrimonial rights?

To distinguish between rights that can be seen as 'economic' (pecuniary, transferrable, seizable, prescriptive), and those that are outside of economy (personality rights; obligations against extra-patrimonial rights can be patrimonial rights)

Beaudouin & Jobin, Les obligations: The distinction between patrimonial and extra-patrimonial rights has been blurred in many ways. Sports figures, models and celebrities may renounce their droit à l’image in return for cash payments, and the law itself patrimonializes extrapatrimonial rights every time is assigns cash damages for their violation

Ghestin and Goubeaux, Traité de droit civil: introduction générale: Patrimony is the set of rights and charges, present and future, in which rights answer for charges. It includes the set of rights that the given person could transfer to another for money. There are some exceptions or weaknesses: (1) some patrimonial rights can be declared unseizable, and so cease to universally guarantee the person’s debts, (2) legal persons (i.e. corporations) now exist which have their own patrimonies without being what we would traditionally think of as a person, (3) heirs instantly have the person’s personality transferred, as well as everything in the person’s patrimony into their own, and (4) the modern conception allows patrimonies by appropriation, which are attached to no person in particular. But the classical conception is still the foundation.

Can extra-patrimonial rights be transferred?

No. By their nature, they cannot be transmitted and, in principle, die with their owner. However, rights secondary to an extra-patrimonial right (right to recover damages for defamation) can sometimes be transferred.

Can a person renounce her extra-patrimonial rights?

In certain cases, a person can partially renounce an extra-patrimonial right. One can give blood, or organs, for instance. One cannot transfer extra-patrimonial rights by onerous title.

Is it a good idea to allow the private creation of unseizable rights?

I prefer not making any value judgement. If one wants to secure livelihood for its citizens, then yes. If one is to have its interests respected post-mortem, then yes.

When rights are unseizable, does this mean they are extra-patrimonial?

Not necessarily. Property may be unseizable, yet property is clearly a patrimonial right.

Comments:

If the "contrats de mère porteuse" are illegal provincially, but not Federally, can I make the contract "to be interpreted under Canadian law" instead of Québec law?

Is the distinction between patrimonial and extra-patrimonial rights clear-cut?

It isn't. Many rights overlap both categories in specific instances, since the definition of 'economic' depends on our conception of what can be monetised.

Deleury & Goubau, Les droit des personnes physiques:

The law protects the infringement and commercialization of people’s bodies, above all dignity tied to the essence of the person. We shouldn’t take this too far, because it could prevent anyone from selling their labour, threatening capitalism. With modern developments in biotechnology, and changes in morality, we should even consider opening up the commercialization of the human body parts. Human beings and their bodies are in fact, already both subjects and objects of the law. But it is a problem that corpses can no more be considered property than can living bodies. Their heirs cannot then hold a right of property in them.

Is there a single criterion for making the distinction?

Absolutely not, since certain rights can give rise to - on one hand - economic damages, but also separate and distinct moral damages.