Civil Code Of Quebec Research Articles

Ownership without Owner in the Czech Trust (Sketch on Margo Trust in the Czech Law)

The Czech legislator did not address the exceptionality of the ownership (patrimony) law which Quebec Civil Code (CCQ) authorises (a property without owner) for particular purpose as patrimony right by appropriation in the fiducie (trust) regulation when it was adopted into the Czech legal system (§ 1448 of the Czech Civil Code – CCC). However, the Czech law lacks a transposing provision in the sense of Article 2(2) or Article 915 CCQ (‘property belongs to persons or to the state or, in certain cases, is appropriated to a purpose’) justifying deviations from the concept of a uniform ownership right. In accordance with the concept of ownership in Czech law expressed in the mandatory provision of Article 1011 CCC, this right must belong to a certain person. The solution of the “Czech problem” therefore consists in the personification of the trust, which as a legal person has the status of a fiduciary owner of the trust property. This model does not affect the substance of the ownership of the appropriated (trust) property. The Czech trust may dispose of it only in accordance with its purpose, which is expressed in its by-laws. The flexibility of the trust remains fully preserved in this model. During its lifetime, it is possible to change the persons in the position of trustee or beneficiary or to change the purpose of the trust. The implementation of our model can be done by interpreting the applicable legislation (teleological reduction). However, a change in the wording of section 1448 CCC would better contribute to legal certainty.

Heritage preservation easements, urban property, and heritage law: Exploring Canadian common law and civil law tools for responding to international cultural preservation frameworks for cities

This article will first situate cultural heritage preservation in the urban context through an overview of notions of outstanding universal value, the role of cities in cultural heritage and municipal archaeology generally, paths toward the equitable and sustainable development of cities, and inclusive urban cultural rights in the context of cultural heritage where these appear within international law and guiding international legal frameworks for the protection of cultural heritage. The article will also discuss the notion of the ‘public good’ as it is applied within heritage preservation decisions and will also address the balancing of public and private interests in built heritage preservation. This article will further turn to the broad legal framework of cultural heritage protection for built spaces in Canada before narrowing in on the common law concept of a heritage easement agreement – notably, how it is and can be deployed in Canada – and the civil law conservation servitude as it is available in the Civil Code of Quebec.

The Fideicommissary Substitution and the Fiducia: Québécois Echoes in the Civil Code of Romania

Abstract The current Civil Code of Romania took inspiration from the Civil Code of Quebec in lifting the prohibition on fideicommissary substitutions. In doing so, it also made explicit reference to fiduciary duties when regulating the obligations incumbent on the first beneficiary. This particular provision divided the local literature with some authors embracing the transplant and others criticizing it. Our article argues that the fideicommissary substitution and the fiducia are essentially two sides of the same coin, with said transplant being a welcome development in the Romanian law of succession.

Marital Property Laws and Women’s Labour Supply

In this article, we examine whether and, if so, how changes in the marital property law after the 1989 amendment of the Civil Code of Quebec to improve economic equality between spouses affected household labour supply and individuals’ marital decisions. We exploit detailed monthly information on individual labour market and marital status from the Labour Force Survey to analyze short-term changes in labour supply and marital decisions before and after the reform in Quebec relative to other provinces that did not experience changes in marital property laws over that time period. We find that the Quebec family patrimony changes reduced the work incentives of married women, with a stronger decline in hours worked among less-educated married women who gained most from the increased economic protection. The change in the Quebec redistributive divorce law increased the likelihood of divorce among relatively less-educated spouses (who have more to gain from the equal sharing of the family patrimony at divorce) and increased new marriages among couples in which wives are relatively more educated than husbands.

LA BONNE FOI ET LE PRECEDENT: BHASIN C. HRYNEW ET LA COMMON LAW CANADIENNE

En common law canadienne, la bonne foi dans les obligations contractuelles se limite à des domaines précis ; il n’y a pas d’obligation générale. Dans Bhasin c. Hrynew, la Cour suprême du Canada à cherché à pallier cette insuffisance en posant un principe directeur général de bonne foi et une obligation d’agir honnêtement dans l’exécution de ses obligations contractuelles. Elle laissait aux cours inférieures la tâche de déterminer les modalités de mise en application du nouveau principe. La Cour a utilisé la méthodologie de la common law pour sortir des limites analytiques restreintes de la common law et élargir la portée de la bonne foi. Or ce précédent n’a pas eu l’effet escompté. La définition limitée de la bonne foi donnée par la Cour suprême du Canada a conduit les cours inférieures à réduire Bhasin c. Hrynew à un cas d’espèce. Devant l’indétermination du principe et de sa portée, les cours d’appel ont utilisé une gamme de techniques pour le distinguer, entre autres, un recours aux règles de la common law pour limiter son champ d’application au lieu d’un recours à la nouvelle décision pour modifier les règles de la common law. Le Uniform Commercial Code (UCC) et le Code civil du Québec (CCQ), auxquels la Cour s’était référée pour justifier l’introduction du principe directeur général en common law fournissait une feuille de route pour son élaboration que les juridictions inférieures ont refusé de suivre.

Principles of contractual under the Quebec law

Introduction . In the paper the author analyzes the principles of contractual performance under the Quebec law, including their codification in both the Civil Code of Lower Canada and the Civil Code of Quebec. Additionally, the author carries out an analysis regarding relevant judicial precedents. Materials and methods . The sources for the research consist of the Civil Code of Lower Canada (1865), the Civil Code of Quebec (1991), the judicial precedents of the courts of Quebec and those of the Supreme Court of Canada, as well as scientific papers of foreign researchers specializing in civil law. The methodology used for the research comprises general scientific (analysis, synthesis and analogy) as well as specific legal methods such as comparative legal, formal logical, systematic, structural and functional methods, as well as interpretative analysis. Research results . The author conducts an analysis of the codification of the Quebec civil legislation as well as the principle of proper performance of contractual obligations, its correlation with the specific performance, and the principle of good faith contractual performance. Overview and conclusion . The definition of two principles of the performance of contractual obligations (proper and good faith performance) under the Quebec law is justified. Due to certain exceptions and conditions for its practical implementation, the specific performance cannot be deemed as a principle, albeit its relative prevalence among the decisions rendered by the courts of Quebec.

DIFFICULTIES OF THE EVALUATION OF CORPORATE DAMAGE

The Romanian Civil Code follows the internationally promoted line in the right for repairing the corporeal injury. First of all, it uses a new classification of the prejudices - a tripartite classification of the Quebec Civil Code: material damages, non-patrimonial damages and corporeal damages. It is then welcomed the regulation (even incompletely) of some of the non-patrimonial components of the corporeal prejudice (such as the recreational prejudice, in article 1391 paragraph 1 of the Civil Code); the regulation of the reparation forms, both for the material damage and for the extra-patrimonial damage; the regulation (again, incomplete) of the non-patrimonial damage of the indirect victims (damage by ricochet); regulating the prejudice consists in losing the opportunity, the source being the offense or the contract; the inclusion, in the reparable damage, of the expenses incurred in order to avoid or minimize damage.

Louisiana and Quebec Terminology as a Tool in Polish-English Legal Translation

Abstract While in the majority of English-speaking territories the dominant legal tradition is common law, in Louisiana and Quebec the native language is English and the legal system stems from continental civil law. Both the Louisiana Civil Code and the Civil Code of Quebec take root in the European codification movement, following Code Napoleon. Bearing in mind the link between law and language, these jurisdictions provide a unique source of English civil law terminology with well-founded conceptual background. The civil codes of Louisiana and Quebec seem to be potentially useful for the translation of Polish private law into English. Yet there are some reservations which should be considered. By comparing two different translations of Article 292 of the Polish Civil Code, this paper is intended to contribute to the debate on the use of Quebec and Louisiana terminology in Polish-English legal translation.

Unilateral Renewal Option in Quebec: The Unexplored Legal Method to Stop Contract Renewal Through Revocation of Offer

The Canadian Supreme Court case Uniprix inc. v Gestion Gosselin et Berube inc. 2017 SCC 43 holds that a unilateral renewal option in a contract of affiliation, which has the effect of binding one party forever at the discretion of the other party who has the sole right to decide whether to renew, is legally valid. This inevitably will have undesirable commercial implication for the party bound, because it cannot get rid of the contractual obligation by opposing further renewal. This article argues that the legal analysis applied in Uniprix is wrong. It is submitted that there is a new contract on renewal, and thus a unilateral renewal right can be got rid of through revocation of offer. This article can also be viewed alone as a comprehensive analysis on the right to revoke under Art.1390 Civil Code of Quebec, which is of general application to any case involving revocation.

The International Jurisdiction of Quebec Authorities in Personal Actions: An Overview

Book Ten of the Civil Code of Quebec comprehensively codifies Quebec private international law. The focus of this article is on the rules in Title Three governing adjudicatory jurisdiction in personal actions of a patrimonial nature, a category that encompasses most actions based on the law of contractual and extra-contractual obligations. The principal sources of jurisdiction and the principal themes and tensions in the jurisprudence are reviewed. Particular attention is paid to the expansive influence on the jurisprudence of the Supreme Court of Canada's decision in Spar Aerospace Ltd. v. American Mobile Satellite Corp. 2002 SCC 78, and to the possible impact on this trend of the Court's more recent decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 as well as that of the Quebec Court of Appeal in Option Consommateurs c. Infineon Technologies 2011 QCCA 2116.

Free Geospatial Data and Quality: Implications for Users, Contributors and Distributors

Geospatial data is widely available and used by a broad range of users for a wide range of purposes—from government planning for service delivery to directions on how to get to a coffee shop. What, if any, duties and standards of care are owed to users of geospatial data by the provider? This is a question complicated by a growing trend toward volunteer geographic information (or VGI) that is itself part of the broader trend of user generated content whereby the users of data contribute geographic data and create a wide range of value-added products based on available data. This paper is a companion piece to the article authored by Katherine Plante and Marc Gervais entitled “Geospatial Data Quality Guarantee.” Plante and Gervais provide an overview of geospatial data quality guarantees in the legal context of the Quebec Civil Code. This paper, in contrast, looks at similar concepts, but from the perspective of the common law in Canada and drawing at times from other common law jurisdictions.

Entre trust et fiducie, le malentendu québécois

The Quebec’s fiducie comes straightforward from the common law trust. The drafters of the Quebec civil code have been very eager to erase this. In order to achieve their goal, they have borrowed to Lepaulle, French expert of the trust, his theoretical framework, which was meant to comply with civil law thinking : the ownerless patrimony. This was not the best way to make up a civilian device, because ownerless patrimony is not actually a romanist concept, but rather the denial of civilian legal science. Either, dismissing the trust was not legally overwhelming, because the common law trust is not as far as it seems from the roman concepts and even from the civil concepts.

New Romanian Choice-of-Law Rules on Marriage Effects

The Romanian Private International Law has acquired new choice-of-law rules on the effects of marriage by Articles 2589 to 2596 of the Romanian Civil Code 2009 (which will be enforced until July 24, 2010). These rules represent an original adaptation of Articles 48 to 54 of the Belgian Code on Private International Law 2004, of Article 3089 paragraph 2 of the Civil Code of Quebec and of Article 20 paragraph 2 of Law no. 105 of 1992 on the Settlement of the Private International Law Relations. The new Romanian choice-of-law rules were drafted following the answers given to The Green Paper on the Conflict of Laws in Matters Concerning Matrimonial Property Regimes, Including the Questions of Jurisdiction and Mutual Recognition. As a novelty, these choice-of-law rules introduce into Romanian Law the concepts of habitual residence (instead of domicile) and of general effects of the marriage.

The Macau Commercial Code: An English Unofficial Translation

The Macau Commercial Code: An English Unofficial Translation

The New Morality in Quebec Company Law - Directors' Liability after the Civil Code of Quebec

Legal personality, it is trite to say, is a fundamental characteristic of the corporate form, and one which underpins that other fundamental but more controversial characteristic, limited liability. The concept of the separate legal personality of that “artificial being, invisible, intangible, and existing only in the contemplation of law” gives rise however to other, persistent, conceptual difficulties associated with the relationship of the various actors in the corporate undertaking. Resolving these conceptual difficulties proves more challenging in jurisdictions which, for one reason or another, draw on different legal traditions as their sources of domestic law. Civil codes, for example, have long recognized a generalized concept of legal personality (in French, “les personnes morales”) extending beyond the business corporation and which predates the emergence of English-style companies law. This article examines how one jurisdiction, Quebec, has attempted to resolve the difficulties arising from the interaction of civil code principles and modern business law, in particular with respect to directors’ liability.

Les pouvoirs de l'exécuteur testamentaire : étendue maximale et durée

A testator can increase or diminish the extent as well as the duration of the powers provided an executor by the Civil Code of Quebec. However, regardless of how positive the formula that he uses may be, he cannot grant absolute and arbitrary powers. That is true whether one considers the executor the agent of the deceased or of the legatees. In effect, it is the purpose of the administration of a testamentary estate which dictates the solution. Since that purpose is to carry out the will of the deceased, the first duty of the executor is to attempt to assure the legatee or the heir the largest possible patrimony. In any case, the executor would not be freed from the control which a request for his dismissal represents unless he should be a residuary legatee. A clause which would have that as its purpose would be considered null and void as contrary to public order and good morals. Moreover, the duration of the administration of an estate can never be prolonged once the administration has been completed even if the testator had foreseen an administration of a longer duration. The only difference the formula used by the testator could make (the possibility of prolounging longer than necessary the administation of the estate) would be to influence the burden of proof which, in one case, would fall on the executor and, in the other, on the heirs or legatees.

Le droit à la vie privée des personnes homosexuelles

This paper examines the idea of personal privacy and how the law has responded to expectations that it be adequately protected. The legal protection of personal privacy is evaluated in light of the concerns of homosexual persons that information about their sexual orientation remain confidential. Although individual privacy is a notion that can be used to argue for a sphere of individual freedom, in the sense that adult individuals should be free of government restriction on how they express themselves sexually in private, this paper focuses on privacy insofar as it relates to the undesired disclosure of information about a person's private life. This is privacy as secrecy, a concept which is concerned with the degree to which we are prepared to allow people to live their lives free from the intrusive prying of others. Whether the idea of breach of privacy as giving rise to civil responsibility has evolved under tort law is reviewed in the common law of both Canada and the United States. The inadequacy of the common law in protecting a general right to privacy has led to the adoption of a number of provincial statutes which create an invasion of privacy tort, and the importance of these in potentially protecting the privacy of homosexual persons is examined. The recognition of a general right to privacy under the Quebec Civil Code and its reinforcement by provisions in the Quebec Charter of Rights and Freedoms completes the analysis of civil remedies for breach of privacy in Canada. For comparative purposes, the development of the « private facts tort » in the American legal system is explored and commented. Informational privacy as it relates to the collection, storage and use of personal information by governments constitutes the focus of part 3 of this paper. It assesses the dangers inherent in the use and storage of personal information by governments in both Canada and the U.S.A. The recognition of the potential for abuse has resulted in the adoption of Privacy Acts in both countries at the federal level and, with respect to Canada, in the province of Quebec. Such legislation seeks to answer the twin preoccupations of when government institutions are justified in collecting and using personal information and when they are justified in disclosing it. These questions are of considerable importance to homosexual persons and this is emphasized in the analysis. Views on the relationship between privacy and social tolerance are offered in the conclusion to the paper.

L'abus de pouvoirs du mandataire en droit civil québécois

The purpose of this article is to study the rules governing the phenomenon of mandatories abusing their powers, under Quebec Civil Code. It also reviews the rules proposed by the Civil Code Revision Office in its 1971 and 1976 Reports on the contract of Mandate and in its 1976 Report on administration of property of others. It shows that on many issues the Office has chosen a rather conservative approach and decided to stick to time-proven rules. It also flags the areas where the Office advocates new rules, with appropriate comments. The article is divided in two parts, the first one dealing with the scope of abuse of powers, the second with its effects. Part one asks « When does a mandatory abuse his powers ? » and answers by distinguishing between the wrongful exercise of mandatory's actual powers and the exercise, right or wrong, of non-existant powers. Part two then asks « What are the effects of abuses of powers ? » and deals on one hand with the liability towards third parties of both mandators and mandatories, and on the other hand with the liability of mandatories towards their mandators. The interest of part one lies mainly with the distinction it makes between two types of abuses of powers and with the analysis of the remarkable contribution of the Report on administration of the property of others into the field of Mandate. Part two derives its interest from the study of rules aimed at protecting third parties against abuses of powers of mandatories, and from testing the relevance of distinguishing between two types of abuses of powers. One conclusion, among others, emerges from this article. Mandators are fully liable towards third parties when mandatories abuse their powers by using them wrongfully. Conversely mandators are not liable when mandatories abuse their powers by using non-existant powers, although this principle suffers exceptions numerous enough to constitute a genuine regime of protections for third parties against self-empowered mandatories. The article suggests however that Quebec Law could go one step further by improving protection of third parties under the existing notion of apparent mandate, especially for those dealing with companies.

Le règlement des litiges commerciaux dans un système sans tribunaux de commerce : l'expérience québécoise

Quebec's Civil Code acknowledges the existence of a dual regime including both civil and commercial juridical operations. This distinction, which is derived from French Law, also exists in Belgian and German Law. These countries have created specialized commercial courts or tribunals with jurisdiction over commercial matters. They are staffed with judges drawn from business. One may ask how in fact a dualistic system of this nature functions in Quebec, given the absence of such special commercial tribunals. It may be noted that although there is no body of commercial law dealing exclusively with traders, there exists in fact a system of business law comprehensive enough to apply also to non-traders (Part I). In addition, the informal nature of the procedural rules, as well as the background of the judges who are selected mainly from the ranks of practising lawyers, permits one to discern a close resemblance between litigation before these courts and the conduct of trials before commercial tribunals (Part II).

Les lignes de force de la Loi 89 instituant un nouveau Code civil et portant réforme du droit de la famille

The family law reform is based upon several principles among which the legislation seeks to create a certain balance. The new legislation approaches the question of that balance under four themes : 1. The equality between man and woman - an equality sometimes intruded upon in order to protect one of the spouses or to strengthen his or her self-determination ; 2. the spouses' freedom to arrange their family relations as they see fit, but a freedom limited by several mandatory rules in order to ensure a greater measure of equality for each ; 3. the equality between children regardless of the circumstances of their birth or their form of filiation - an equality strengthened by rules devised to protect their interests ; 4. the increased intervention of the judiciary authaurised mostly for promotive self-reconciliation by the parties. The following comments try to illustrate how these four principles are embodied in book two of the Civil Code of Quebec, book which must be construed according to the Legislator's expressed view for overriding equality, simplicity and flexibility.