Gifts and Contracts: A Comparison with Quebec Civil Law

Abstract

By contrast to the common law that governs the other Canadian provinces and territories, Quebec’s distinctive civilian private law understands the concept of “gift” not as a separate legal category, but as a particular kind of contract by which one party, the donor, conveys property gratuitously to another, the donee. In this paper, the author proposes an alternative and arguably more complete way of understanding this classificatory divergence than the implicit focus on consideration found in existing comparative accounts of gift law. He argues that this divergence can be accounted for, and perhaps even justified, by drawing on the relationship that each set of legal systems presents between two potentially distinct classes of agreement – the first corresponding to agreements that generate future obligations, and the second to agreements that immediately transfer property rights. Whereas Quebec civil law in particular does not truly distinguish between the two as a matter of practice or theory, he suggests that the concept of contract at common law can be understood to correspond to the first class of agreement, as one that serves to generate some kind of future obligation. Meanwhile, it is the correspondence of the common law gift to the second type of agreement that he further suggests provides us with the most compelling explanation, or at least the most complete doctrinal explanation, for its exclusion from contract as the common law understands the term.