Employment in the Civil Code of Lower Canada:
Tradition and Political Economy in Legal Classification
and Reform
John W. Cairns*
In codifying the law on employment in 1866,
the Quebec codifiers preferred a classification
based on contract, as exemplified by the
French Code, to one modelled on status, as
embodied in the ancien droit and, though
only in part, in the Louisiana Code. This clas-
sification and the adoption of the specific ar-
ticles of the Quebec Code are discussed in
light of the codifiers’ attachment to tradi-
tional legal scholarship and to liberal theories
of political economy. As filtered through the
codifiers’ intuitive understanding of what
would be the better law, the influence of tra-
dition and liberal theories yielded a codifi-
cation which often departs from the ancien
droit and whose conservatism has tradition-
ally been exaggerated.
Lors de la codification du louage de services
en 1866, les codificateurs ont pr~fer6 une clas-
sification fond~e sur le contrat, comme celle
du Code franiais, i une classification baste
sur le statut, telle que pr~sente dans l’ancien
droit et, en partie, dans le Code louisiannais.
Cette classification et l’adoption des articles
sp6cifiques du Code qu6b6cois sont discuts
Ia lumi&e de l’attachement des codifica-
teurs A la doctrine juridique traditionelle et
aux theories librales d’6conomie politique.
Linfluence de la tradition et des theories li-
b~rales, telles que filtr~es par la perception
que se faisaient les codificateurs des r~formes
d~sirables, ont produit une codification qui
se distingue souvent de l’ancien droit, et dont
le conservatisme a g~n~ralement 06 exag~r6.
*Lecturer in Scots Law, University of Edinburgh. I am grateful to Joseph W. McKnight,
Russell K. Osgood and Alan Watson for commenting on an earlier draft of this paper, and to
the Moray Fund of the University of Edinburgh and the Dean of the Faculty of Law for two
small grants. Some of this article has developed out of parts of my unpublished Ph.D. disser-
tation, “The 1808 Digest of Orleans and 1866 Civil Code of Lower Canada: An Historical
Study of Legal Change”, vols 1, 2 (University of Edinburgh, 1980).
McGILL LAW JOURNAL
[Vol. 32
Synopsis
The Commission’s Rejection of Formalism
Introduction
I.
II. Liberal Economics and the Commission
III. The Civilian Background
IV. The Codification of the Law on Employment
A. Rejection of the Trichotomy
B. The Scope of Lease of Service
C. The Duration of the Contract
D. The Decisory Oath
E. Contract and Special Legislation
Conclusion
Introduction
The traditional consensus has been that the Civil Code ofLower Canada
of 1866 is conservative, especially in comparison with the French Code civil
of 1804 which is usually viewed as highly revolutionary.’
‘Consider the following selection of comments. ER Walton, The Scope and Interpretation
of the Civil Code of Lower Canada (Montreal: Wilson and Lafleur, 1907) at 23:
Our Civil Code, then, codifies the old French law of Quebec, as modified by statutes,
and also codifies, but only as to its broad principles, the commercial law of the
province, which is derived from English as well as from French sources.
J. Limpens, “Territorial Expansion of the Code” in B. Schwarz, ed. The Code Napoleon and
the Common-Law World (New York: New York University Press, 1956) 92 at 99:
The Quebec Code of 1866 is certainly not a direct offspring of the Code Napoleon;
it is above all –
a codification founded on
the Custom of Paris.
and the fact is worthy of attention –
R. Taschereau, “Le sikcle de la renaissance et son influence sur le droit civil du Quebec” (1962)
12 Thdmis 7 at 16:
[I]ci, nous n’avons pas subi cette influence de 1789, et c’est aux v~ritables sources
du droit national franqais que nous avons cherch6 notre inspiration. C’est pourquoi,
je pense, nous avons un droit civil franais plus historique que les Frangais eux-
m~mes.
1987]
LEGAL CLASSIFICATION AND REFORM
The probable origins of this consensus are the instructions to the com-
missioners for codification to embody in the Code only laws actually in
force, while suggested amendments had to be stated separately and distinctly
with reasons for their proposed adoption,2 and the limited preservation of
the law before the Code came into force.3 This second point causes Mignault
to remark that “il n’y a pas, A proprement parler, de droit ancien ni de droit
nouveau en cette province.”‘4 Such an approach also gains support from the
paucity of declared reforms embodied in the Code.5
I would suggest, however, that the traditional view overstates the con-
servatism of the Code, and is based on a somewhat naive understanding of
from an
the nature of law, an understanding deriving –
overly formalist view of law and legal reasoning.6 On the contrary, it seems
apparent that the work of the codification commission was highly creative,
and that in the articles of the Code, even those where there was no reform
one suspects –
2An Act Respecting the Codification of the Laws of Lower Canada Relative to Civil Matters
and Procedure, C.S.L.C. 1861, c. 2, s. 6.
3This preservation was effected by arts 2712 and 2714 C.C.L.C. The relevant parts of art.
2712 C.C.L.C. (art. 2613 in 1866) read as follows:
The laws in force at the time of the coming into force of this code are abrogated
in all cases;
In which there is a provision herein having expressly or impliedly that effect;
In which such laws are contrary to or inconsistent with any provision herein
contained;
In which express provision is herein made upon the particular matter to which
such laws relate ….
Before being abrogated, art. 2714 C.C.L.C. (art. 2615 in 1866) read in part:
If in any article of this code founded on the laws existing at the time of its
promulgation, there be a difference between the English and French texts, that
version shall prevail which is most consistent with the provisions of the existing
laws on which the article is founded ….
On the significance of these articles, see J.E.C. Brierley, “Quebec’s Civil Law Codification
Viewed and Reviewed” (1968) 14 McGill L.J. 521 at 556-58; J.W. Cairns, “Comparative Law,
Unification and Scholarly Creation of a New Ius Commune” (1981) 32 Northern Ireland L.
Q. 272 at 277-79.
4P.-B. Mignault, Le droit civil canadien, vol. 1 (Montral: Whiteford & Theoret, 1895) at 52.
5T. McCord, The Civil Code of Lower Canada, 3rd ed. (Montreal: Dawson Brothers, 1880)
I (Synopsis of the changes in the law), sets out the reforms.
6H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at 249, states of “for-
malism”, “conceptualism”, and “mechanical” or “automatic” jurisprudence that: “It is not
always clear precisely what vice is referred to in these terms.” I shall here adopt Hart’s own
description of the “vice” (at 126) as “an attitude to verbally formulated rules which both seeks
to disguise and to minimize the need for such choice [in the application of general rules to
particular cases], once the general rule has been laid down.” One thinks of the formal rationality
Weber considered the mark of German Pandectist Law- see M. Weber, On Law in Economy
and Society, ed. by M. Rheinstein, trans. E. Shils (Cambridge, Mass.: Harvard University Press,
1954) at 64 for the “five postulates” of the Pandektenrecht. For criticism, see R. Pound, “Me-
chanical Jurisprudence” (1908) 8 Colum. L. Rev. 605.
REVUE DE DROIT DE McGILL
[Vol. 32
noted, the commissioners sought to embody their own particular vision of
Quebec society.7 Furthermore, not only the substantive content of the in-
dividual articles, but also the way they acted together to create legal insti-
tutions –
and the classification of those
institutions are crucial in gaining an appreciation of the reforming and
modernising effect of the Code.
to use Neil MacCormick’s term8 –
The area of law discussed here is that of master and servant or, in the
more modern term, employment. In the Code it is classified as part of the
law of lease.9 This follows the French Code civil of 1804,10 and contrasts
with, for example, the classification of master and servant in Blackstone’s
Commentaries,” I where it is treated as part of the law of persons. 12 Following
Blackstone,13 the Louisiana Civil Code of 1825, well known as a source for
the Quebec Code,14 has a title on master and servant in its first book “Des
personnes”, while also dealing with the topic as an aspect of lease.’ 5 This
paper will explain both the general classification of employment adopted in
the Quebec Code and the historical genesis of the actual articles on lease of
service. The argument will be developed in five stages. The first part of the
paper examines the general approach of the redactors to their task and
demonstrates their rejection of any type of strict formalism in determining
both the law in force and in deciding on potential reforms. The second part
discusses the influence on the codifiers both of liberal theories of political
economy and of contemporary jurisprudential thought. The next part ex-
plores the traditional approach to lease of service in the civil law. The fourth
part examines in detail the work of the redactors in codifying the law on
lease of service, showing how the specific articles and general attitude of
the redactors derived from an interaction between the traditional sources
used by the redactors and their views on political economy. The fifth and
concluding part of the paper gives a general assessment of the codifiers’
operations in this area of the law, pointing out the tensions between their
aims and the state of the existing law.
7For fuller treatment, see J.W. Cairns, The 1808 Digest of Orleans and 1866 Civil Code of
Lower Canada: An Historical Study of Legal Change, vol. 2 (doctoral thesis in law, University
of Edinburgh, 1980) at 687-717.
8D.N. MacCormick, “Law as Institutional Fact” (1974) 90 L.Q. Rev. 102.
9Art. 1600f. C.C.L.C.
‘0Art. 1708ff. C.C.E
I IW. Blackstone, Commentaries on the Laws of England, vol. l(Oxford: Clarendon Press,
1765) at 410.
12See 0. Kahn-Freund, “Blackstone’s Neglected Child: The Contract of Employment” (1977)
93 L.Q. Rev. 508.
‘3See J.P. Richert & E.S. Richert, “The Impact of the Civil Code of Louisiana upon the Civil
Code of Quebec of 1866” (1973) 8 R.J.T. 501; Brierley, supra, note 3 at 541.
14See Cairns, supra, note 7 at 517 and 559.
15See arts 155-196 (Book I, Title VI), and arts 2643, 2645 and 2716-2721 C.C.La.
1987]
LEGAL CLASSIFICATION AND REFORM
I. The Commission’s Rejection of Formalism
Brierley identifies the motivation underlying the codification of the
Lower Canadian law as the desire to solve three legal and technical problems:
one resulting from the diversity and confusion of the sources of the law;
one of language; and one caused by the absence of any legislative and doc-
trinal synthesis. 16 The bulk of the private law was of French origin, and
codification in France had generally led to a cessation of the reprinting of
these sources, with the commentaries on them, making it difficult to use
them as sources of Quebec law. To these French sources a considerable
amount of provincial legislation and court decisions had been added, while
some provisions of English law had been introduced. Furthermore, though
many inhabitants were unilingual, some parts of the law were accessible
only in French and others only in English. 17 In the face of this confusion,
the French Code of 1804 and the Louisiana Code of 1825 indicated the
benefits of codification and offered examples of a synthesis of the law and
of a bilingual code. i8 Brierley’s research accordingly confirms the reasons
for codification stated in the preamble to the 1857 Act which provided for
codification. 19
On 4 February 1859, three commissioners for codification were ap-
pointed: Ren6-Edouard Caron, puisn6 judge of the Court of Queen’s Bench,
and Charles Dewey Day and Augustin-Norbert Morin, both puisn6 judges
of the Lower Canadian Superior Court. On 10 February 1859, Joseph Ubalde
Beaudry and Thomas Kennedy Ramsay, both members of the Bar, were
16Supra, note 3 at 533-42.
17See J.W. Cairns, The 1808 Digest of Orleans and 1866 Civil Code of Lower Canada: An
Historical Study of Legal Change, vol. I (doctoral thesis in law, University of Edinburgh, 1980)
at 114-32; Brierley, ibid. at 533-40.
t8See Brierley, ibid. at 540-2.
19The preamble ofAn Act Respecting the Codification of the Laws of Lower Canada Relative
to Civil Matters and Procedure, supra, note 2, states:
Whereas the Laws of Lower Canada in Civil Matters, are mainly those which, at
the time of the cession of the country to the British Crown, were in force in that
part of France then governed by the Custom of Paris, modified by Provincial Stat-
utes, or by the introduction of portions of the Law of England in peculiar cases;
and it therefore happens, that the great body of the Laws, in that division of the
Province, exist only in a language which is not the mother tongue of the inhabitants
thereof of British origin, while other portions are not to be found in the mother
tongue of those of French origin; And whereas the Laws and Customs in force in
France, at the period above mentioned, have there been altered and reduced to one
general Code, so that the old laws still in force in Lower Canada are no longer re-
printed or commented upon in France, and it is becoming more and more difficult
to obtain copies of them, or of the commentaries upon them; And whereas the
reasons aforesaid, and the great advantages which have resulted from Codification,
as well in France as in the State of Louisiana, and other places, render it manifestly
expedient to provide for the Codification of the Civil Laws of Lower Canada ….
McGILL LAW JOURNAL
[Vol. 32
appointed secretaries of the commission. Thomas McCord replaced Ramsay
as secretary on 25 October 1862.20 On Morin’s death in 1865, Beaudry
replaced him as commissioner, with the post of secretary being filled by
Louis Sim6on Morin; but by then the work was essentially finished and the
draft code was being examined by the Legislature. 21
Brierley has shown that Caron acted as defacto president of the com-
mission, and that early in 1859 he gave thought to the implementation of
the Legislature’s instructions. 22 Caron first turned his attention to the task
of determining what laws were in force in Lower Canada and set out his
views in a M6moire, in which there was an exhaustive classified list of the
sources of Lower Canadian law.23 The list included the Coutume de Paris,
French ordinances and edicts, provincial legislation, juristic writers on
French law of the Ancien rbgime, and those, such as Domat, who wrote on
Roman law as adapted to France. Despite being mentioned only briefly
towards the end of the list, juristic writings turned out to be the most
important, and fruitful, source for the Code.24
Though the commission was instructed to draw up the Code on the
basis of the law in force, there inevitably was still an element of choice and
discrimination in the primary task of stating the law in force. The com-
missioners themselves observed in their Second Report that:
[O]n an infinity of points there is uncertainty and difference of opinion. The
legislature is silent, the courts do not concur, the authors disagree, and yet in
all these cases a decision must be come to … .21
The commission’s First Report had already outlined some of the criteria by
which decisions would be made on any particular rule as being the law in
force:
20Papiers Ren6-Edouard Caron, Archives du S6minaire de Quebec, S. 817 at 3-13, 230-31
and 233 [hereinafter Livre des minutes]. In citations of these archives, the references to pages
or folios will follow those suggested by Brierley, supra, note 3 at 575ff. Archival number S. 817
bears a title (“Livre des minutes des proc~dfs de la Commission de la codification des lois fi
ses r6unions r6guli res, tenues d’apr~s la clause 19 de ‘Acte de 1857, Chap. 43”). The other
documents are not titled regularly and will be hereinafter referred to as Papiers Caron, followed
by the archival number. I have used copies of the microfilms of them available in the Library
of the Faculty of Law of McGill University.
21See Brierley, ibid. at 581-9; see also McCord, supra, note 5 at v-vi (Preface to first edition).
22Ibid. at 542-73; McCord, ibid. at v-x.
23See Livre des minutes, supra, note 20 at 15-24, 16-19; see also the list of sources quoted
in Brierley, ibid. at 547-52.
24Briefley, ibid. at 553 comments: “The vast bulk of actual law to be included in the provisions
of the future Code was thus contained in the commentaries of a myriad of French writers of
the seventeenth and eighteenth centuries.”
25Report ofthe Commissioners Appointed to Codify the Laws of Lower Canada in Civil Matters
(Second Report), vol. 1 (Quebec: Desbarats, 1865) at 143 [hereinafter Second Report].
1987]
LEGAL CLASSIFICATION AND REFORM
The Commissioners would remark that in all cases of doubt and conflicting
opinions upon the law, and in the cases of suggested amendments, they have
not been governed by the mere weight of authority upon the one side or the
other, but have preferred the rules likely to be found practically the most
convenient and beneficial.26
The codifiers apparently examined many and varied sources in a search
for potential amendments to the law.27 The Code civil of France and the
Louisiana Civil Code, for example, were major sources of possible reform,
and Caron believed that the latter, completed after the French Code, might
well contain provisions suitable for adoption in Quebec. 28 The Louisiana
Code had, after all, been specifically mentioned in the preamble to the 1857
Act, and had been praised in the debates over the codification bill.29 McCord
described the amendments as “intended for the most part to improve our
law as a system, and to adapt it more perfectly to our present state of
society.”30 He added: “They are … of a nature to harmonize with the ideas
of the present day, and to adapt our ancient laws to the changes which since
their date society itself has undergone.” 31 In both stating the existing law
and suggesting reform, the codifiers thus were influenced by their perceptions
and intuition of what was suitable for Lower Canada. As one would expect
of experienced judges, they explicitly rejected any type of naive formalism
or mechanical jurisprudence.
The work of drafting individual books and titles of the Code was split
among the three commissioners, and it is possible to ascertain which parts
were originally drafted in French and which in English. The drafts were
translated into the other language by the secretaries, checked by the com-
missioner who drew them up, and then carefully examined by all three.32
The commission worked using cahiers,33 in some of which each double page
was divided into four columns, headed: “Existing Law”, “Corresponding
26Report ofthe CommissionersAppointed to Codify the Laws ofLower Canada in Civil Matters
(First Report), ibid. at 32 [hereinafter First Report].
27McCord, supra, note 5 at XLIII-LI, gives an idea of the range of sources consulted. Brierley,
supra, note 3 at 552, gives a count of over 350 different sources. A. Morel, “I’apparition de
la succession testamentaire: r6flexions sur le rfle de la jurisprudence au regard des codificateurs”
(1966) 26 R. du B. 499 at 501, gives a count of more than 300 titres. For the authorities for
specific articles, I have followed McCord in preference to the published reports of the com-
mission because, as he pointed out, supra at iii-iv, in the second edition of the reports many
of the authorites were given inaccurately.
28See Brierley, ibid. at 545. In Livre des minutes, supra, note 20 at 24, Caron wrote: “Le
Code Louisiannais, ayant 6t fait apr~s l’autre, contient surement plusieurs dispositions qui,
quoique non comprises au Code Napoleon, devraient cependant 8tre adopt~es.”
29See Brierley, ibid. at 541-42 n. 54. See also the preamble of the 1857 Act, supra, note 19.
3Supra, note 5 at II.
31Ibid.
32Ibid. at viii-ix. See also Brierley, supra, note 3 at 537.
33See Brierley, ibid. at 577-80.
REVUE DE DROIT DE McGILL
[Vol. 32
Article of the Civil Code of France”, “Proposed Amendment” and “Re-
marks”.34 In others, a single page was divided into two columns, with one
containing the existing law, and the other the reference to the French Code,
proposed amendments and any remarks.35 The intention was to utilize, as
instructed by the Legislature, the expression and wording of the French Code
in drawing up articles to encapsulate the existing law.36 Caron aptly de-
scribed the French Civil code as “le cannevas sur lequel il faut travailler; il
faudra en suivre le plan et les divisions, et, comme r~gle g~n6rale, en adopter
m~me, quant A la redaction, tous les articles qui nous conviennent. ‘ ’37 It is
obvious that this method, involving comparison with the French Code,
would cause the commissioners to reflect critically on the existing law, and
would mean that, in considering a possible amendment, the French pro-
vision would always be the one most convenient and obvious to follow.
II. Liberal Economics and the Commission
Codification came at the high point of nineteenth-century liberalism,
and at a time of major reform in Quebec law. 38 The mainstay of the Quebec
economy was still the export of grain and timber, but there had been some
industrialization. 39 The largely English-speaking entrepreneurial class had
early espoused the doctrines of liberal capitalism, and while in the early
years of the nineteenth-century the liberal professions had rejected com-
mercial capitalism, 40 by 1847 even Louis-Joseph Papineau, the well-known
defender of seigneurialism, could declare that he was “disciple d~s ma pre-
mitre jeunesse de l’cole d’Adam Smith, et de tout temps ennemi de tout
34See, e.g., Papiers Caron, supra, note 20, S. 764-774 dealing with obligations.
35See, e.g., Papiers Caron, ibid., S. 776-784 on persons and prescription; S. 788, entjtled “De
la Vente, Exchange”, has four columns on a double page, but this is the two-column type, with
the French and English texts on facing pages. In the surviving cahiers, apart from on obligations,
the two-column type predominates.
36See Brierley, supra, note 3 at 563-64.
37Livre des minutes, supra, note 20 at 15.
38See Cairns, supra, note 17 at 131-33; Brierley, supra, note 3 at 522-23.
39See J. Hamelin & Y. Roby, Histoire economique du Quebec, 1851-96 (Montreal: Fides,
1971) at 161-241; A. Faucher, Quebec en Am~rique au XIXe siecle: Essai sur les caracthres
economiques de la Laurentie (Montreal: Fides. 1973) at 26-27; S.B. Ryerson, Unequal Union:
Roots of Crisis in the Canadas, 1815-1873, 2d ed. (Toronto: Progress Books, 1975) 267-68; R.
Armstrong, Structure and Change: An Economic History of Quebec (Toronto: Gage, 1984) at
189-205.
4OF Ouellet, Histoire economique et sociale du Quebec, 1760-1850: Structures et conjoncture
(Montreal: Fides, 1966) at 205-8.
1987]
LEGAL CLASSIFICATION AND REFORM
monopole et privilege”. 41 The most obvious example of the growth, and
triumph, in Quebec of the precepts of liberal capitalism is, of course, the
controversy over, and eventual abolition of, seigneurial tenure.42
While industrialisation was slow, it eventually created in Quebec an
urban class of wage labourers.43 This resulted in the increasing contractual-
isation of the relationship between master and servant, employer and em-
ployee, which moved away from one of domestic dependency. 44 In 1867,
members of the business community of Quebec declared:
Every individual has the right to settle for himself the rate of remuneration
for his services; and it is not illegal for a number to agree upon a rate of wages.
This is but the full exercise of freedom, and against it there can be no complaint.
The employer is left with the choice of submitting or procuring other labour,
and, he, too is thus free.45
The codification commissioners obviously adopted and endorsed such prin-
ciples of economic liberalism. In this respect, it is useful to look at their
approach to the law of contract.
The fine, imperative statement of freedom of contract in article 1134
of the French Code civil has no direct equivalent in the Quebec Code, though
4’Speech (21 December 1847) reproduced in G.N. Tucker, The Canadian Commercial Rev-
olution 1845-1851 (Toronto: McClelland and Stewart, 1964) at 79. The role of Smith as the
apostle of nineteenth-century laissez-faire has recently been reassessed: see, e.g., D. Winch,
Adam Smith’s Politics: An Essay in Historiographic Revision (Cambridge: Cambridge Univer-
sity Press, 1978) at 13-14, 80-81 and passim.
42See W.B. Munro, The Seigniorial System in Canada: A Study in French Colonial Policy
(New York: Longmans, 1907) at 224-51; E Ouellet, “L’abolition du regime seigneurial et l’id~e
de propri t6” (1954) 14 Hermes 22. As Munro noted, in the case of the abolition of seigniorial
tenure, the rise of liberalism meshed with ethnic tensions.
43See Hamelin & Roby, supra, note 39 at 305-24; Ryerson, supra, note 39 at 170-91; R.
Tremblay, “La formation mat6rielle de la classe ouvri6re a Montreal entre 1790 et 1830” (1979)
33 Rev. d’hist. de l’Am~rique franaise 39. Strikes may be a crude measure of the growth of
an industrial labour force. J. Hamelin, P. Larocque & J. Rouillard, Repertoire des graves dans
la province de Quebec au XIXe sicle (Montreal: Presses de l’ cole des Hautes Etudes com-
merciales, 1970) at 9-17 note only 12 strikes from 1843 through 1866. They make the fair
comment (at 7) that: “I’histoire des travailleurs qu~b~cois au XIXe si~cle est encore A 6crire.”
See also R. Tremblay, “La grave des ouvriers de ]a construction navale A Quebec (1840)” (1983)
37 Rev. d’hist. de l’Amrrique frangaise 227.
44P Aries, Centuries of Childhood (New York: Alfred A. Knopf, 1962) at 396-97; and J.-L.
Flandrin, Families in Former Times: Kinship, Household and Sexuality (Cambridge: Cambridge
University Press, 1979) at 61-64 and 140-45. Both stress that in pre-industrial Europe servants
and masters lived in a quasi-familial relationship which went beyond the formalities of contract.
45[Montreal] Morning Chronicle (6 July 1867) at 2, found quoted in Hamelin & Roby, supra,
note 39 at 310.
McGILL LAW JOURNAL
[Vol. 32
article 1022 C.C.L.C. is in some ways analogous. 46 The explanation of the
absence of such an equivalent is the very belief of the Quebec redactors in
freedom of contract. The original draft of article 1022 C.C.L.C. was some-
what closer to the wording of article 1134 C.C.F., but commissioner Day
doubted the need for such a provision, because contracts by their nature
were binding on the parties to them, so that article 1134 C.C.E belonged
to the class of “mere legal truisms”. 47
Study of some examples of substantive provisions of the Code confirms
the Quebec codifiers to have been no less devotees of contractual liberalism
than Portalis and his colleagues. Article 1229 of the French Code civil as-
similated penalty clauses to stipulated damages. The Quebec commissioners
rejected this approach, and explained thus:
The articles … embrace the subject of obligations with a penal clause. They
make no departure from the rules established in the articles of the French code,
numbered from 1226 to 1233, except in the omission of the article 1229, de-
claring the penalty to be compensation for damages suffered from the inexe-
cution of the obligation. The Commissioners think this declaration … is a
confounding of things which are in many respects different, and governed by
different rules, and they have therefore rejected it.48
Articles 1070 and 1078 C. C.L. C. show that the commissioners adopted the
rule of the French Code that stipulated damages could not be reduced by
the courts. They argued thus for the change in the Quebec law:
The evils which arise from regarding certain clauses in contracts as merely
comminatory, and therefore not to be enforced, are obvious, and of daily oc-
currence. Under the jurisprudence which had grown up in France, the courts
constantly modified or disregarded clear stipulations in contracts, for the pur-
pose of substitution to the declared will of the parties, an uncertain equity in
the settlement of their rights. In this country perhaps the interference has not
been carried to the same length; but it is equally objectionable in principle;
46Art. 1134 C.C.E states:
Les conventions lgalement form~es tiennent lieu de loi A ceux qui les ont faites.
Elles ne peuvent 8tre rdvoqu~es que de leur consentement mutuel, ou pour les
causes que la loi autorise.
Elles doivent 8tre exdcut~es de bonne foi.
Art. 1022 C.C.LC. states:
modifying other contracts.
Contracts produce obligations, and sometimes have the effect of discharging or
They have also the effect in some cases of transferring the right of property.
They can be set aside only by the mutual consent of the parties, or for causes
established by law.
47For Day’s comments, see Papiers Caron, supra, note 20, S. 764 at 35a and 36a. For the
development of the wording of art. 1022 C.C.L.C., see S. 764 at 35; S. 765 at 30, and on its
adoption by the commission, see Livre des minutes, supra, note 20 at 36 (24 February 1860),
37 (27 February 1860) and 82 (17 January 1861).
48First Report, supra, note 26 at 24.
1987]
LEGAL CLASSIFICATION AND REFORM
and although sustained by the authority of Dumoulin and Pothier, does not
seem to have been derived from the Justinian code, or to have been justified
by any positive legislation in France.49
Though Morin was not in favour of this change in the law, the view of the
majority of the commissioners was embodied in the Code. The reason for
Morin’s objection is unfortunately not stated.50 Penalty clauses proper are
dealt with in articles 1131 and 1137 C. C.L. C., and the commissioners, with
Morin again dissenting, once more recommended that courts should no
longer be able to reduce them. 51 The new law became article 1135 C. C.L. C.52
A final example concerns lesion. The ancien droit had permitted the
reduction of contracts for the sale of immoveables on the ground of lesion
within a period often years. 53 This doctrine was ultimately of Roman origin,
but modern civilian countries had developed different rules from one an-
other, though one can say that generally certain contracts could be set aside
in particular circumstances if one party had been excessively disadvan-
taged. 54 In the revolutionary period, the Loi du 14 fructidor, an III had
abolished the French rules on lesion; but they were reintroduced, after an
extensive debate, in the Code civil.55 The Code’s rules, however, in com-
parison with the ancien droit, restricted the operation of reduction on the
grounds of lesion.56 The commissioners followed and even extended this
restriction. They recommended that minors should not be restored for lesion
if all the relevant solemnities provided by law for the alienation of their
property had been carried out.57 This proposal, which became article 1010
C.C.L.C., followed article 1314 C.C.F. Going beyond article 1313 C.C.E,
the Quebec redactors recommended that adults should never be able to
rescind contracts on the grounds of lesion. This proposal became article
49Ibid. at 18.
50Ibid. The crucial proposed amendment became art. 1076 C.C.L.C. For its development,
see Papiers Caron, supra, note 20, S. 766 at 94 and 95a; S. 770 at 10 and 1 la; S. 773 at 4 and
4a; and Livre des Minutes, supra, note 20 at 46 (5 March 1860).
s1First Report, ibid. at 24. The reasons were the same.
520n the development of art. 1135 C.C.L.C., see Papiers Caron, supra, note 20, S. 767, at
144, 144a; S. 770 at 55 and 55a; S. 773 at 61 and 61a; Livre des minutes, supra, note 20 at
56-7 (28 March 1860) and 88 (23 January 1861).
53See R.-J. Pothier, Trait des obligations, Oeuvres de Pothier, ed. by M. Bugnet, vol. 2, 2d
ed. (Paris: Plon, Cosse et Marchal, 1861) nos 33-41; R.-J. Pothier, Traitt du contrat de vente,
Oeuvres de Pothier, ed. by M. Bugnet, vol. 3, 2d ed. (Paris: Plon, Cosse et Marchal, 1861) nos
330-71.
54See A. Watson, “The Hidden Origins of Enorm Lesion” (1981) 2 J. Leg. Hist. 186; R.W.M.
Dias, “Laesio Enormis: The Roman-Dutch Story” in D. Daube, ed., Studies in the Roman
Law of Sale (Oxford: Clarendon Press, 1959) 46.
SSSee J. de Maleville, Analyse raisonnee de la discussion du Code civil au Conseil d’Etat, vol.
3, 2d ed. (Paris: Garnery, 1807) at 355.
561bid. at 116 and 359-64.
S7See First Report, supra, note 26 at 12.
REVUE DE DROIT DE McGILL
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1012 C.C.L.C. The commissioners stated that their proposal “may easily
be shewn to be more consistent with the circumstances and the state of
society in this country than the old rule.'” 58 They further stated that:
[T]here seems to be no sound reason upon which in this country, where real
property is transferred so easily and made an object of daily speculation, a
person in the full exercise of his rights should be relieved from imprudence in
this description of contract more than in any other. The rule violates that
integrity of contracts upon which the Commissioners throughout the title have
been anxious to insist and they have no hesitation in recommending the adop-
tion of the article suggested by them in amendment of the present law. 59
Commissioner Day upheld the market principle in commenting that the
notion that there should be an equality between value of the thing given
and that of the thing received was “a mere fiction”. 60 Thus, while the Code
civil of France has twelve articles on rescission of sales for lesion, the Quebec
Code has only one.61
The codification commission obviously sought to shape the law to fit
what it perceived as the socio-economic “reality” of Quebec, by adopting
rules which favoured freedom and sanctity of contract.62 This perception
was not based on any profound economic or social study, but was the product
of intuitive reaction by the Commissioners to their daily experience. It also
agreed with current jurisprudential fashion, and the redactors noted that “it
is certain that the doctrine of judicial interference with the plain meaning
of contracts is regarded with disfavor by modem jurists. ’63
8Ibid.
59Ibid. See also Papiers Caron, supra, note 20, S. 764 at 24a, 25a, 26a, 27a and 28a.
60See Papiers Caron, ibid., S. 764 at 26a.
62See art. 1561 C.C.L.C. and arts 1674-1685 C.C.E Art. 1561 C.C.L.C. merely refers to the
earlier articles on obligations:
The rules relating to the avoiding of contracts for cause of lesion are declared in
the title Of Obligations.
This statement of the law necessitated the amendment of two draft articles on sale, 62 and 74:
see Papiers Caron, supra, note 20, S. 786, verso at C and Ea. See also S. 788 at 45 and 54,
where the emergence of the final version of art. 1561 C.C.L.C. becomes evident. In Livre des
minutes, supra, note 20 at 246, draft art. 62 is adopted on 15 December 1862 with the proposed
amendment (i.e. art. 1545 C.C.L.C.). Curiously enough, approval of draft art. 74 (art. 1561
C.C.L.C.) seems to have been accidentally omitted from entry in the minutes.
62Report ofthe CommissionersAppointedto Codify theLaws ofLower Canada in Civil Matters
(Fourth Report), vol. 2 (Qubbec: Desbarats, 1865) at 16 [hereinafter Fourth Report] describes
a provision as “consistent with the principle of maintaining the integrity of contracts, observed
throughout by the Commissioners in the course of their work.” It adds (at 18): “These articles
[on the right of redemption] … harmonize with the system of adhering to contracts and
preventing the modification and enlargement of them by the courts.” In Papiers Caron, supra,
note 20, S. 764 at 5a and 6, the rejection of articles based on 1101-1107,C.C.E was suggested
by Day not only because they were unnecessary definitions, but also because they might restrict
which contracts could be made. See also Brierley, supra, note 3 at 569-70.
63First Report, supra, note 26 at 18.
1987]
LEGAL CLASSIFICATION AND REFORM
III. The Civilian Background
The law on master and servant in the codes of France and Quebec
ultimately derived from Roman law, in which the hiring out of labour for
gain was one aspect of the general law on hire, governed by a contract known
as locatio conductio.64 Modem commentators usually divide this contract
into three types (“the trichotomy”): locatio conductio rei, locatio conductio
operisfaciendi, and locatio conductio operarum.65 In this form the tricho-
tomy is a product of modern commentaries, rather than a Roman
classification. 66
Locatio operisfaciendi appears to have been the object of greater juristic
attention than locatio operarum, and Crook suggests that in ancient Rome,
because of both slavery and the system of patron and client, “the sphere of
the hired free worker at a wage … is very restricted. ‘ 67 Though this probably
exaggerates the restricted operation of locatio operarum, it was certainly the
case that upper class Romans despised the worker, because he was hired for
money. The liberal arts could not be the subject of letting and hiring, al-
though in some of the liberal professions it became possible to receive an
honorarium as their work came to be regarded as mandate (a supposedly
gratuitous contract). The matter of the nature of the reward earned by mem-
bers of the liberal professions is rather confused; 68 but for our purposes, it
is important to note the generally menial nature of locatio operarum in
Roman law. The relationship between the parties in the contract of locatio
conductio operarum was one of formal equality;69 but in practice, the hired
worker may well have been in an inferior position. In an agricultural house-
hold, for example, the hired worker was described as being “in the position
64See J.A.C. Thomas, “Locatio and Operae” (1961) 64 Bull. ist. din rom. 231 at 233 and
239-40.
65See W.W. Buckland, A Text-Book ofRoman Law, 3d ed. (Cambridge: Cambridge University
Press, 1963) at 498-506. Locatio conductio rei is where the lessor (locator) places a thing at the
disposal of the lessee (conductor); locatio conductio operisfaciendi is where the lessor lets out
a task to be done by the lessee; locatio conductio operarurn is where the lessor is employed by
the lessee.
66 E Schulz, Classical Roman Law (Oxford: Clarendon Press, 1951) at 544, describes the
trichotomy as “a product of continental legal scholasticism”. EJ.M. Olivier-Martin, “Des di-
visions du louage en droit romain” (1936) 15 Rev. hist. dr. fran. 6tr. 419 at 467-74, credits
Voet with its invention.
67J. Crook, Law and Life of Rome (Ithaca: Cornell University Press, 1967) at 195.
68See A. Watson, The Law of Obligations in the Later Roman Republic (Oxford: Clarendon
Press, 1965) at 109-10. On mandate and honoraria, see Buckland, supra, note 65 at 515. For
some work no reward could be collected: D.50.13.1.4 and 5 (professors of philosophy and of
law). See also Thomas, supra, note 64 at 240-47; Crook, ibid. at 203-5; compare D.19.2.38.1
in which Paul seems to class advocates among those who lease out their services.
69See Buckland, ibid. at 504-5.
McGILL LAW JOURNAL
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of a slave”, 70 while in some circumstances at least, the hirer appears to have
had rights of chastisement. 71 The nature of Roman society likely produced
the result that the hired worker was always of a relatively low status. 72
Two conflicting approaches to servants may be traced in the French
juristic writings of the ancien droit: one deriving from the Roman contract
of locatio conductio,73 the other treating the servant as a familial dependant
of his master. The first approach is exemplified by a treatise of Pothier,74
the second by one of Pocquet de Livonnire. 75 In general, little juristic
attention seems to have been devoted specifically to lease of service in the
ancien rgime.
In the TraitM du contrat de louage, Pothier stated that there were two
types of louage: louage des choses and louage des ouvrages.76 Louage des
ouvrages corresponds to the locatio operisfaciendi of the trichotomy. Pothier
discussed lease of personal service (louage des services) as an aspect of louage
des choses. Furthermore, the specific rules set out by Pothier on louage des
services are few in number and scattered through the provisions on louage
des choses.77
70D.7.8.4pr. and D.43.16.1.18.
71The case of the “apprentice” would suggest this: see D.9.2.5.3 and D.19.2.13.4. Whether
the contract should be classed as operisfaciendi or operarum is unimportant. The boy’s father
had an action on lease (actio ex locato). It is stated that the cobbler as lessee (conductor) had
a right of chastisement (levis castigatio).
72The evidence presented by Crook, supra, note 67 at 192-98 would support this.
73On the history of the reception of this contract, Olivier-Martin, supra, note 66 is invaluable.
74R.-J. Pothier, Trait du contrat de louage, Oeuvres de Pothier, ed. by M. Bugnet, vol. 4,
2d ed. (Paris: Plon, Cosse et Marchal, 1861).
75G. Pocquet de Livonni~re, Rfgles du droitfranois, 4th ed. (Paris: Le Mercier, 1744).
76Pothier, Trait du contrat de louage, supra, note 74, preface.
77The Trait du contrat de louage, ibid., has 391 numbered sections dealing with louage des
choses of which only 18 deal with louage des services (nos 10, 12, 40, 165-77, 193 and 372).
The greater number of these (nos 165-77) concern the Application [of the principles of remission
of rent] au louage des services des ouvriers et serviteurs, and concern the legal effects offoree
majeure, or a servant quitting or being dismissed before the end of the period of service; no.
10 distinguishes between lease of menial services and contracts of mandate; no. 12 states that
the contract between a chaplain and the person whom he serves is not lease, but innominate;
no. 40 states that where workmen are hired by the day and no wage stipulated, the usual wage
for the time and place are to be paid; no. 193 deals with a master’s liability for the culpa of
his servants; and no. 372 with tacit relocation of lease of services. Note that this is a relatively
crude way of estimating the proportion of the treatise devoted to lease of services, as the
sections are not of equal length. T.W. Tucker, “Sources of Louisiana’s Law of Persons: Black-
stone, Domat, and the French Codes” (1969) 44 Tulane L. Rev. 264 at 273, suggests that Pothier’s
slight treatment of lease of service is the result of the economic insignificance of the contract.
This must be qualified as the contract was regulated by public authority. What influenced
Pothier most was undoubtedly the academic tradition deriving ultimately from Roman law.
19871
LEGAL CLASSIFICATION AND REFORM
Pothier followed Roman law in restricting louage to lowly services, thus
excluding the liberal arts:
Observez … qu’il n’y a que les services ignobles et appr6ciabies A prix d’argent
qui soient susceptibles du contrat de louage, tels que ceux des serviteurs et
servantes, des manoeuvres, des artisans, etc.
Ceux que leur excellence, ou la dignit6 de la personne qui les rend, empeche
de pouvoir s’apprrcier A prix d’argent, n’en sont pas susceptibles.
C’est pourquoi le contrat qui intervient entre un avocat et son client …
n’est pas un contrat de louage, mais un contrat de mandat.7 8
Olivier-Martin points out that, for example, neither Cujas nor Bartolus had
thus distinguished between operae liberales and other operae.79
The statement of Pothier, however, seems to represent the more ac-
cepted view of the law, though Cujas’s near-contemporary, Etienne Pasquier,
scorned the exclusion of the services of advocates from the contract of louage
as “une hypocrisie de droict inventre par les jurisconsultes, pour auctoriser
leur science.” 80
Pocquet de Livonnire’s R~gles du droit frangois are arranged in four
books, at a general level, according to a variation on the tripartite Roman
division of persons, things and actions, but with the addition of a fifth book
after actions.81 He treated servants in a section entitled “De la Puissance
des Maitres”, in the first book of his work, thus categorising the relationship
between masters and servants as analogous to those between fathers and
children or husbands and wives. Pocquet treated being a serviteur as having
a particular status, and what for him was important was the serviteurs were
under the authority of, and dependent on, their mattres. He obviously did
not consider the relationship between them merely to be one of a contract
78Ibid., no. 10; see also no. 12.
79 Olivier-Martin, supra, note 66 at 456.
80E. Pasquier, Linterpr~tation des Institutes de Justinian (Paris: Videcoq Ain6 and A. Durand,
1847) at 693.
81Pocquet de Livonni~re, supra, note 75 divided his work into five books: “Des Personnes”
and “Des personnes qui sont sous la puissance d’autrui”; “De la Difference des Biens”; “Des
divers moyens d’acquerir”; “Des Contrats, Obligations, & Actions”; and the fifth book contains
six chapters entitled “Des Cessions et Transports”, “De la Ga-antie”, “De la Discussion”, “De
l’Exponse ou D6guerpissement, & du D6laissement par Hypothaque”, “Des Retraits”, and
“Des Cessions de biens, Rrpis, Lettres d’Etat, Banqueroutes”.
REVUE DE DROIT DE McGILL
[Vol. 32
between free and equal individuals.8 2 Pocquet’s account, however, is no more
detailed than that scattered through Pothier’s treatise.
Pocquet’s approach had a precedent in Pasquier’s Linterpr~tation des
Institutes de Justinian,83 and one can readily appreciate that the use of the
institutional structure in a modem work would easily have led to a treatment
of master and servant as part of the law of persons, not only on the analogy
with the Roman law of slavery, but also because it made sense socially.84
Thus, Adam Smith is generally looked upon, perhaps misleadingly, as the
advocate of laissez-faire, but in his lectures to his students in the University
of Glasgow, he is reported as having stated that family relationships were
threefold: “between Husband and Wife, Parent and Child, Master and Serv-
ant.”‘8 5 Smith’s lecture on this third relationship dealt with the history of
slavery, its abolition in Christian Europe, and finally with modem servants.8 6
82Ibid. at 35 (1.2.1):
Nous reconnoissons dans notre Jurisprudence quatre sortes de Puissances, ]a pa-
ternelle, la maritale, celle des Tuteurs & Curateurs sur leurs Pupilles, & autres confies
A leurs soins, & celle des Maitres sur leurs serviteurs.
The detailed rules on master and servant are set out at 54-58 (1.2.37 to 1.2.46). Pocquet started
by stating that slavery was abolished in France, except for black slaves coming from America
with their masters who had the intention of returning (1.2.37 and 1.2.38). He next mentioned
that under some coutumes there were still serfs (1.2.39). In his rule 1.2.40 he stated (at 55-56):
A cela pros, en France, tous les hommes sont libres; les Serviteurs doivent a leurs
Maitres le respect, l’ob~issance en choses raisonnables; sont obliges de veiller A la
conservation de leur vie, de leur honneur & de leur biens; sont sujets A une correction
modre: mais au surplus ils sont libres pour leurs personnes & pour leurs biens.
Next he stated that in a dispute between master and servant over conditions or wages, the
master was believed on oath (1.2.41), that it was forbidden to suborn another’s servants and
to receive them without their master’s permission (1.2.42), that servants had to serve the fill
year of their engagement, unless there were just cause not to (1.2.43), and that if they married
without permission they lost their wages, which were to be given to the poor (1.2.44). The next
rule (1.2.45) set out prescriptive periods for claiming wages, while the last (1.2.46) stated that
(at 58):
Les Maitres ne sont tenus du fait ou de Ia faute de leurs Serviteurs, qu’en deux cas,
I. S’ils leur ont donn6 ordre. 2. Pour les fautes par eux commises dans le genre du
n~goce, ofi ils ont coutume de les employer.
It may be noted that Pocquet scarcely deals with specific contracts, referring readers generally
to Roman law: ibid. at 401 (4.2.1).
83Supra, note 80 at 64-66.
84See PA. Merlin, Rpertoire universel et raisonn6 de jurisprudence, vol. 7, 4th ed. (Paris:
Garery, 1813) at 573-75. The author acknowledged lease of services as part of louage, but he
preferred to deal there with locatio operis, dealing with lease of personal service under domes-
tique –
see, in the same collection, vol. 4, 4th ed. (Paris: Garnery, 1812) at 2-8; and ouvrier
see, in the same collection, vol. 8, 4th ed. (Paris: Garnery, 1813) at 849-53. His discussion
–
of domestique was far removed from formal contract.
85A. Smith, Lectures on Jurisprudence, ed. by R.L. Meek, D.D. Raphael & P.G. Stein (Oxford:
86Ibid. at 450-56.
Clarendon Press, 1978) at 438.
1987]
LEGAL CLASSIFICATION AND REFORM
It is obvious that in the account of modem servants Smith primarily had
in mind domestic servants. 87 Smith’s discussion of the division of labour
in the Wealth of Nations, and opposition to restrictions on labour, clearly
indicate that he was aware of an alternative, more contractual approach. 88
Smith’s pupil, John Millar, followed him in treating master and servant as
an aspect of the law of persons in his lectures on Scots law and English
law.89 That the founder of political economy and his distinguished pupil
could analyse in this way the legal relationship of employment suggests how
obvious and “natural” this approach must have seemed until at least 1800.
In any case, in different countries, writers of institutional works often treated
master and servant as part of the law of persons. 90
87E.g., ibid. at 456, he stated: “there is a peculiar connection between master and servant.”
88A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. by R.H.
Campbell, A.S. Skinner & W.B. Todd, vol. 1 (Oxford: Clarendon Press, 1976) at 13-24, discussed
the division of labour in the making of pins and coats in “manufactures”; Smith further
criticised the restrictions on the free circulation of labour resulting from the apprenticeship-
system and the privileges of trade incorporations (at 135-46). Consider Smith’s remark (at 146):
It would be indecent, no doubt, to compare either a curate or a chaplain with a
journeyman in any common trade. The pay of a curate or chaplain, however, may
very properly be considered as of the same nature with the wages of a journeyman.
They are, all three, paid for their work according to the contract which they may
happen to make with their respective superiors.
Compare Trait4 du contrat de louage, supra, note 74, no. 12. The legal problem discussed by
Pothier and robustly dealt with by Smith still arises: see President ofthe Methodist Conference
v. Parfitt (1984), [1984] Q.B. 368, [1984] 2 W.L.R. 84; and Davies v. Presbyterian Church of
Wales (1986), [1986] 1 W.L.R. 323, 1 All E.R. 705 (H.L.), both discussed in S.E. Woolman,
“Capitis Deminutio” (1986) 102 L.Q. Rev. 356.
89See the following notes of John Millar’s lectures on Scots law, Glasgow University Library,
MS General 347 (1775-76), MS General 178 (1783), MS General 181/1-3 (1789-90), MS Murray
83-87 (1789-90), MS General 1078 (1792). In all of these, lecture 7 is devoted to Master and
Servant. In the printed Heads of the Lectures on the Law of Scotland, in the University of
Glasgow ([Glasgow]: Dunlop and Wilson, 1789) bound in at the front of MS Gen. 181/1 and
MS Murray 83, at 3, in the scheme of the first lecture, it is stated:
Rights arise, either from the state of persons, or of things. Rights arising from the
state of persons may be reduced to such as proceed from the connection of husband
and wife – of parent and child – of master and servant – of guardian and pupil
or minor.
The seventh lecture, “Master and Servant”, is described as follows:
View of the circumstances which have contributed to limit or abolish domestic
slavery in Europe. – Condition of negro-slaves imported into Scotland. – Of
colliers and salters. – Of ordinary domestic servants. – Of apprentices.
The origin in the structure of Smith’s lectures is obvious. In a set of Millar’s lectures on English
law from the session of 1800-1801, Glasgow University Library, MS General 243, we find that
the eighth lecture deals with the poor laws and master and servant. With only little variation,
Millar is following the scheme of his lectures on Scots law.
90See, e.g., J. Erskine, Principles ofthe Law ofScotland: In the Order ofSir GeorgeMackenzies
Institutions ofthat Law (Edinburgh: Hamilton, Balfour and Neill, 1754) vol. 1 at 102-3 (1.7.38-
39).
McGILL LAW JOURNAL
[Vol. 32
The scant treatment of master and servant in both Pothier and Pocquet
does not demonstrate, however, that the relationship was largely uncon-
trolled. As in Europe generally, in France the trade guilds had regulated
apprenticeship and the employment of journeymen, 91 and the attempt of
the Crown to suppress the guilds in February 1776,92 was a resounding
failure, with the Parlement de Paris refusing to register the edict produced
by the new economic policy. All that eventually happened was the reorgan-
ization of the guilds of Paris. 93 Though the position is complex, one may
say generally that the French Crown regulated industry and employment in
industry by special royal ordinances, more as a matter of policy than of
formal law.94 This undoubtedly reinforced the slight juristic treatment of
employment.
In the nouveau droit there occurred the same division, with a detailed
regulation of employment as a matter of policy alongside a few, more formal,
legal provisions. Thus, the Loi du 22 Germinal, an XI, which regulated
industry, contained provisions on employment and apprenticeship. 95 The
French Code civil, on the other hand, though it already had some articles
which had a bearing on master and servant, 96 essentially dealt with em-
91See EJ.M. Olivier-Martin, Histoire du droit francais des origines di la Revolution (Paris:
Montchrestien, 1948) at 170-76, 619-23 and 627-32.
92See PA. Merlin, Repertoire universel et raisonng de jurisprudence, vol. 3, 4th ed. (Paris:
Garnery, 1812) at 226-29 (corps d’arts et metiers), quoting the preamble of the edit desuppression
des jurandes, which suppressed the guilds of Paris.
93See Olivier-Martin, supra, note 91 at 629-32.
941bid. at 619-23 and 627-32. For an excellent, detailed account, see M. Sonenscher, “Jour-
neymen, the Courts and the French Trades 1781-1791” (1987) 114 Past and Present 77.
95See PA. Merlin, Repertoire universel et raisonng de jurisprudence, vol. 1, 4th ed. (Paris:
Garnery, 1812) at 309 (apprentO; M. Planiol, Trait 66mentaire de droit civil, vol. 2 (Paris:
Cotillon, 1900) no. 1882.
96Art. 109 C.C.E states:
Les majeurs qui servent ou travaillent habituellement chez autrui, auront le meme
domicile que la personne qu’ils servent ou chez laquelle ils travaillent, lorsqu’ils
demeureront avec elle dans la m~me maison.
Art. 1384 C.C.E states:
On est responsable non seulement du dommage que l’on cause par son propre
fait, mais encore de celui qui est caus6 par le fait des personnes dont on doit
ripondre, ou des choses que l’on a sous sa garde.
Les maitres et les commettants, du dommage caus6 par leurs domestiques et pri-
posis dans les fonctions auxquelles ils les ont employis;
La responsabilit6 ci-dessus a lieu, i moins que les pire et mire, instituteurs et
artisans, ne prouvent qu’ils n’ont pu empicher le fait qui donne lieu i cette
responsabilit6.
See also art. 2271 and 2272 C.C.E on the prescription of servants’ and workers’ wages, discussed
below.
1987]
LEGAL CLASSIFICATION AND REFORM
ployment in only three articles in the contract of lease.97 The title on lease
had a total of one hundred and twenty-four articles. Article 1708 C.C.E
stated that there were two types of lease, louage des choses and louage
d’ouvrage. Though superficially identical to Pothier’s two-fBold analysis, this
was different in that louage des services, in Pothier’s terms, was dealt with
as an aspect of louage d’ouvrage rather than louage des choses. Olivier-
Martin has suggested that the division of louage in the French Code was
influenced by Domat,98 and this is convincing, though such a division was
not unknown. 99
The redactors of the Code civil were evidently not influenced by the
modem trichotomy. Though the structure of the French Code was based on
the institutional model,100 its redactors did not follow the practice of some
institutists of including general provisions on master and servant in the
book on persons.101 The codifiers stressed the contractual aspect of the re-
lationship between master and servant, and organized accordingly their
treatment of the topic in the Code.
97Art. 1779 C.C.E stated (at the relevant time):
II y a trois esp~ces principales de louage d’ouvrage et d’industrie:
1. Le louage des gens de travail qui s’engagent au service de quelqu’un;
2. Celui des voituriers, tant par terre que par eau, qui se chargent du transport
des personnes ou des marchandises;
3. Celui des entrepreneurs d’ouvrages par suite de devis ou march6s.
Art. 1780 C.C.E states:
On ne pent engager ses services qu’A temps, on pour une entreprise d6termin~e.
Before being abrogated in 1868, art. 1781 C.C.E stated:
Le maitre est cru sur son affirmation:
Pour la quotit6 des gages,
Pour le paiement du salaire de l’ann6e 6chue,
Et pour les i-comptes donn~s pour l’ann6e courante.
There were a further 18 articles essentially dealing with, in the language of the trichotomy,
locatio conductio operisfaciendi: arts 1782-1799 C.C.E
98Olivier-Martin, supra, note 66 at 466. See also J. Domat, Les loix civiles dans leur ordre
naturel (Paris: Nicolas Gosselin, 1713) at 53 (1.4 “remarques” and 1.4.1.1), who states:
Le louage en general, & y comprenant toutes les especes de baux, est un contrat
par lequel l’un donne i l’autre la jouissance on l’usage d’une chose, ou de son travail
pendant quelque temps, pour un certain prix.
99See G. Noodt, Opera Omnia ab ipso recognita, aucta, emendata, multis in locis, atque in
duos tomos distributa, vol. 2 (Leyden: J. vander Linden, 1724) at 421 (Commentarius adDigesta
seu Pandectas on D.19.2).
10OSee C. Chene, L’enseignement du droitfranqais en pays de droit ocrit (1679-1793) (Gen~ve:
Droz, 1982) at 290-303.
‘O’Except art. 109 C.C.F which is explained on other grounds.
REVUE DE DROIT DE McGILL
[Vol. 32
IV. The Codification of the Law on Employment
Though the codification commission must have been aware of the in-
stitutional treatment of master and servant found in Blackstone, Pocquet
de Livonnire and the Civil Code of Louisiana, there is no evidence to
suggest that they ever considered following it. They instead simply adopted
the approach of the French Code, and included all the major provisions on
employment in “Of lease and hire”, the seventh title of the third book of
the Code.102 Its first chapter, consisting of articles 1600-1604 C.C.L.C., con-
tains general provisions. The third chapter is “Of the lease and hire of work”,
its first section containing one general provision, article 1666 C.C.L.C., and
its second having five, articles 1667-1671 C.C.L.C. The remaining sections
of this chapter deal with carriers and work by estimate and contract, and
we shall not be concerned with them here, as they exclusively concern locatio
operis faciendi.
A. Rejection of the Trichotomy
By the date of codification in Quebec, academic Roman lawyers were
familiar with the trichotomy of locatio conductio,103 which would have been
known to the redactors through, for example, Ortolans work on Justinian’s
Institutes.10 4 Articles 1600 and 1602 C.CL.C. show, however, that the com-
mission did not adopt this tripartite division, as indeed their organization
of the title also would suggest. Article 1600 C.C.L.C. provides that:
The contract of lease or hire has for its object either things or work, or
both combined.
This contrasts with article 1708 of the French Code, which stated that there
were two sorts of contract of lease, that of “choses” and that of “ouvrage”,
and with the only Lower Canadian doctrinal account of lease and hire dating
from before the Code, Gorrie’s brief synopsis, which, obviously following
both Pothier and the Code civil, stated that: “Lease or hire is a Synallagmatic
contract, to which consent alone is necessary, and by which one party gives
’02Fourth Report, supra, note 62 at 22 explained that the translations of the French Code
civil and the Louisiana Code had demonstrated that both “lease” and “hire” were necessary
to translate louage and locatio, “lease” alone being insufficient.
’03Olivier-Martin, supra, note 66 at 467, comments that “vers 1830-1840 toute Ia doctrine
allemande et frangaise connaissait les trois louages.”
104J.L.E. Ortolan, Explication historique des Instituts de l’empereur Justinien, vol. 2, 4th ed.
(Paris: Joubert, 1847) at 260. The redactors cited Ortolan for art. 1668 C.C.L.C. See below,
text accompanying notes 153-54.
1987]
LEGAL CLASSIFICATION AND REFORM
to another, the enjoyment of a thing, or his labour, at a fixed price.”‘ 05 In
their Fourth Report, the commissioners merely noted that they had im-
proved on the wording of article 1708 of the French Code.10 6 The original
draft had read:
The contract of lease or hire may be either of things or of work.10 7
In one of the drafts, by deletion and interlineation this has been amended
to the enacted form. 08 The change in wording from two alternative contracts
to a contract with more than one object seems to have been prompted, first,
by study of Troplong’s Traito du louage,10 9 here cited as a source in the draft,
though not given as one by McCord. 10 Troplong commented on the French
Code’s article that these two contracts “identiques par le genre, se distinguent
cependant l’un de l’autre par leur objet et se gouvernent par des r~gles
sp6ciales.”‘ I IThe Quebec codifiers’ inclusion of a third object, work and
things combined, derives from their reading of Marcad6’s Explication du
Code Napolbon.112 Following the French Code civil, the Quebec Code has
four chapters in title seven, dealing respectively with general provisions,
lease of things, lease of work and lease of cattle or shares (bail h cheptel).
Article 1711 C. C.E subdivided its two types of lease into several forms, one
of which was bail ez cheptel. 13 Marcad6 criticised this:
105A. Gorrie, A Synopsis of the Laws of Letting and Hiring or the Contract of Lease in Lower
Canada (Montreal: Lovell and Gibson, 1848) at 5. This work is more the length of a pamphlet
than a book. While Gorrie cites Pothier rather than the French Code civil for his proposition,
I mention both because in the over-all structure of his work, louage des services, in Pothier’s
term, is dealt with, following the French Code, as part of lease of work generally, rather than
of things, so that the structure of Gorrie’s study is an amalgam of that of Pothier’s Trait, with
that of the title “Du louage” of the Code civil. Thus, his account of lease and hire of things is
structured similarly to Pothier (though in the substance omitting louage des services) while his
account “Of the Letting Out of Labor or Industry” resembles in structure the Code civil, though
it may be noted he does not deal with bail .d cheptel. Gorrie was a notary public and registrar
of the County of Terrebonne.
106Fourth Report, supra, note 62 at 22.
107Papiers Caron, supra, note 20, S. 789 at I; S. 790 at 1.
08Papiers Caron, ibid., S. 790 at 1.
109R. Troplong, De l’change et du louage, t. 1-3, Le droit civil expliqu6 suivant l’ordre des
articles du Code, vols 9-11 (Paris: Charles Hingray, 1840).
“0See Papiers Caron, supra, note 20, S. 789 at 1; S. 790 at 1.
IIR. Troplong, De l’change et du louage, t. 1, Le droit civil expliqu6 suivant l’ordre des
articles du Code, vol. 9 (Paris: Charles Hingray, 1840) at 54.
112V. Marcad6, Explication th~orique et pratique du Code Napolon, vols 1-6, 5th ed. (Paris:
Cotillon, 1859).
13Art. 1711 C.C.E states:
Ces deux genres de louage se subdivisent encore en plusieurs esp~ces particulires:
On appelle bail ei loyer, le louage des maisons et celui des meubles;
Bail d ferme, celui des h6ritages ruraux;
Loyer, le louage du travail ou du service;
Bail a chaptel, celui des animaux dont le profit se partage entre le propri6taire et
McGILL LAW JOURNAL
[Vol. 32
[I]1 se met ensuite en contradiction avec cette donnfe, puisque, au lieu de
placer le bail A cheptel dans l’un des deux chapitres pr&cdents, il le range dans
un chapitre particulier et en fait une troisibme classe ind6pendante.11 4
He thought it appropriate to treat bail t cheptel as a third class of lease and
hire, because it presented a “nature toute particuli~re” not only as “tout ;
la fois louage de choses et louage d’ouvrage” but also as closely related to
the contract of partnership.’ 15 Marcad6 was cited here neither in the draft
nor in McCord’s list of sources; but the redactors were familiar with his
account of lease and used it extensively.116 They also rejected article 1711
of the French Code civil,1 17 to replace it with article 1603 C.C.L.C., which
deals solely with lease of cattle on shares.”i8 Given that article 1601 C. C.L. C.
concerned lease of things, and article 1602 C.C.L.C. lease of work, the origin
of article 1600 C.C.L.C. is obvious, especially since none of the other sources
cited in the draft or by McCord has similar wording.” 9
This rejection of the trichotomy is further confirmed by article 1602
C.C.L.C.:
The lease or hire of work is a contract by which one of the parties, called
the lessor [locateur], obliges himself to do certain work for the other, called
the lessee [locataire], for a price which the latter obliges himself to pay.
Article 1710 C.C.E had stated:
celui A qui il les confie.
Les devis, marchg ou prixfait, pour l’entreprise d’un ouvrage moyennant un prix
d6termin6, sont aussi un louage, lorsque la mati~re est fournie par celui pour qui
l’ouvrage se fait.
Ces trois demi~res esp~ces ont des r~gles particulires.
114V. Marcad6, Explication thorique et pratique du Code Napolgon, vol. 6, 5th ed. (Paris:
Cotillon, 1859) at 418.
15lbid.
” 6Note the similarity of the wording used by Marcad6, ibid.: “tout A la fois louage de choses
et louage d’ouvrage”, with that of art. 1600 CC.L.C.: “les choses et l’ouvrage tout a la fois”.
For art. 1602 C.C.L.C., the redactors cited the very next section of Marcad&’s treatise.
” 7See Fourth Report, supra, note 62 at 22.
11Art. 1603 C.C.L.C. states:
The letting out of cattle on shares is a contract of lease or hire combined with a
contract of partnership.
“9The drafts and McCord cite: D.19.2.22.1; J. Cujas, Paratitla in Libros Quinquaginta Di-
gestoruin, seu Pandectarum Imperat. lustiani (Paris: apud Ioannem lost, 1658) at 137-38 (19.2);
J. Voet, Elementa Iuris secundum ordinem Institutionum in usum domesticae exercitationis
digesta, 2d ed. (Leyden: apud Henricum Teering, 1705) at 151-52 (3.25.1); art. 1708 C.C.E;
and Pothier, Traite du contrat de louage, supra, note 74, preface and no. 1. The drafts cite the
former passage of Pothier, and McCord the latter. It is likely that the citation in the drafts is
the intended one: see Papiers Caron, supra, note 20, S. 789 at I and S. 790 at 1. The drafts,
in addition, also cited Troplong.
1987]
LEGAL CLASSIFICATION AND REFORM
Le louage d’ouvrage est un contrat par lequel l’une des parties s’engage A
faire quelque chose pour ‘autre, moyennant un prix convenu entre elles.
The more precise Quebec article does not reflect provincial practice, z12 but
is drawn, according to the draft minutes, from Marcad6 and Troplong.’ 2′
As well as Marcad6 and Troplong, the redactors cited the Digest, 122 Cujas, 123
and Rousseaud de la Combe.’ 24 This last source did provide some authority
from the ancien droit, though his passage seems to have been written with
lease and hire of things in mind. 25 The redactors stated that they explained
the proper use of terms to avoid confusion; 126 but there is a departure from
the regular practice of the ancien droit, and on one of the drafts a member
120Gorrie, supra, note 105 at 5-6 and 19-31 gives no evidence of such a usage.
121Papiers Caron, supra, note 20, S. 786 verso at Aa-l: “Who is lessor & lessee Day follows
Marcad6 & Troplong.” See Marcad6, supra, note 114 at 419-24 and 570. The first of these
references contains Marcad6’s argument, and at 570 Marcad wrote:
Le louage pur ou parfait est un contrat par lequel une partie qu’on appelle locateur
s’oblige A fair jouir, soit d’une chose, soit de son travail ou de son industrie, une
autre partie qu’on nomme locataire et qui s’oblige A lui payer le prix de cette
jouissance.
Troplong, supra, note 111 at 237 wrote:
Ainsi, d’apr~s la saine intelligence de notre article, on doit tenir pour certain que
d~sormais c’est l’ouvrier qui est vraiment locateur, et que celui qui le paie, est le
v~ritable locataire et conducteur.
It is worth noting that while Marcad6 thought the ascription of terms derived from the nature
of the contract (see, supra at 419-24 and also 517), Troplong thought this to have been intro-
duced by the Code.
122D. 19.2.22. 1.
123Supra, note 119 at 137-38. ”
124G. du Rousseaud de la Combe, Recueil de jurisprudence civile du pays de droit 6crit et
coutumier, 2d ed. (Paris: Le Gras, 1746) at 429 wrote:
Le locataire appellH6 en Droit, conductor, est celui qui dat pecuniam; le bailleur
appell6 en Droit, locator, qui eam recipit ….
25Ibid. Rousseaud’s use of term bailleur strongly suggests that he was thinking specifically
oflouage des choses. See Pothier, TraitM du contrat de louage, supra, note 74, no. 1; and Marcad6,
supra, note 114 at 419:
[D]ans le louage d’une chose, celui qui procure cette chose se nomme bailleur,
locateur, propritaire et l’autre bailliste, locataire, preneur, fermier quelquefois lou-
ager, louandier, occupeur, puis dans le bail A m6tairie, metayer, colon partiaire, dans
le louage d’ouvrage, celui qui fournit son travail se nomme entrepreneur, ouvrier,
domestique et g6n6riquement locateur, celui qui regoit et paye ce travail se dit maFtre,
propritaire et g6n6riquement locataire ou conducteur; enfin, dans le cheptel, celui
qui fournit le troupeau est le locateur et en regoit les diff rents noms, celui qui
nourrit et soigne ce troupeau est le locataire, il en prend les dif-rentes appellations
et aussi celle de cheptelier.
126See Fourth Report, supra, note 62 at 22.
REVUE DE DROIT DE McGILL
[Vol. 32
of the commission has noted that their proposed article was contrary to the
views of Domat and Pothier,127 neither of whom was cited as an authority.
While in their general provisions on lease the redactors have departed
to some extent from their model, they did so only to improve on it. At
bottom, they have preserved the treatment of the French Code and the
practice in the province,128 with the additional integration of the anomalous
bail t cheptel into the general definition to provide a better foundation for
the organization, if not the conceptual basis, of the title. What is important
is the continuation of the French Code’s conflation of locatio operarum and
locatio operis faciendi.
B. The Scope of Lease of Service
The draft minutes show that at the commission’s meeting on 30 De-
cember 1862, the question arose of whether mandat salariM should be in-
cluded in lease. The point was reserved “as being very important, the
distinction running through all our books.”‘ 129 The commission considered
this suggestion seriously, and in one of the drafts on lease a leaf has been
inserted on which is written: “The contract of mandate, when not gratuitous
… and when not subjected to particular rules … is governed by those which
127Papiers Caron, supra, note 20, S. 790 at 3 cites Pothier, Traitt du contrat de louage, supra,
note 74, no. 392:
La partie qui donne A l’autre l’ouvrage A faire, s’appelle le locateur, locator operis
faciendi; celle qui se charge de le faire, s’appelle le conducteur, conductor operis.
The passages cited from Domat, supra, note 98 are at 53 (1.4.1.1 and 2) and 60 (1.4.7.1). The
first of these (1.4.1.1) has been quoted, supra, note 98; the second (1.4.1.2) is as follows:
Celuy qui baille une chose A jouir, s’appelle le bailleur ou le locateur, & on donne
ces memes noms A celuy qui donne d faire quelque ouvrage ou quelque travail:
celuy qui prend une jouissance par un louage ou une ferme, s’appelle le preneur ou
le conducteur, de meme que celuy qui entreprend un travail ou un ouvrage, qu’on
appelle aussi entrepreneur. Mais dans les louages, ou prix faits du travail & de
l’industrie, les ouvriers ou entrepreneurs tiennent aussi en un sens lieu de locateurs;
car ils louent & baillent leur peine.
The third (1.4.7.1) is as follows:
Dans les baux i prix fait, & autres louages du travail des ouvriers, le bailleur est
eclui qui donne l’ouvrage qu le travail d faire; & le preneur ou entrepreneur est
celui qui entreprend le travail ou r’ouvrage.
128See Gorrie, supra, note 105 at 6:
There are two species of letting and hiring; that of things, and that of labor or
industry. To let out a thing, is a contract by which one of the parties binds himself
to grant to the other the enjoyment of a thing, during a certain time, for a certain
stipulated rent or hire, which the other agrees to pay him … . To let out labor or
industry is a contract by which one of the parties binds himself to do something
for the other, in consideration of a certain price agreed upon between them.
129See Papiers Caron, supra, note 20, S. 786 verso at Aa-l, and for the date, see Livre des
minutes, supra, note 20 at 252-54.
1987]
LEGAL CLASSIFICATION AND REFORM
apply to lease or hire.” This is presumably a draft article, and underneath
it is scribbled: “In Mandate / A definition not founded on gratuitousness /
or postpone the whole till mandate.”1 30 In their Sixth Report, the com-
missioners stated that the distinction between non-gratuitous mandate and
hire of personal services was insubstantial and not the result of the paying
of a price or of the nature of the service. The fundamental rules of both
contracts were derived from Roman law, and the codifiers noted that the
distinction was founded on social differences among the Romans and upon
the fact that arts and professions were exercised by free people (hence “lib-
eral”) while slaves carried out other work. The liberal arts were compensated
by a voluntary honorarium, the non-liberal by a fee or price. The commis-
sioners considered that this distinction, because founded only on shifting
conditions of social rank, could never be fixed or universal. As to which
contract would be classified as mandate and which as lease of services they
thought this would vary according to the nature of any society, as indeed
was exemplified by the way mercantile business had come to be considered
honourable, though aristocratic societies had considered it to be disrepu-
table. They further remarked that jurists inevitably disagreed as to which
professions were properly to be regulated by mandate and which by lease
and hire. For any practical purpose, the redactors thought that mandate and
lease and hire of services were identical, but they noted that only one code,
that of Austria, had classed as lease and hire all services for which payment
was made. 131 In their Fourth Report, the commissioners had already ex-
plained that, though it was difficult to define the difference between mandate
and lease and hire of work, and they had been tempted to assimilate the
two, they had nonetheless desisted, because the contracts, from Roman
times, had continuously been kept separate, resulting in the distinction being
so interwoven into doctrine and jurisprudence that unforeseen difficulties
130Papiers Caron, ibid., S. 789 at 7a-1.
3’3 Report of the Commissioners Appointed to Codify the Laws of Lower Canada in Civil
Matters (Sixth Report), vol. 3 (Quebec: Desbarats, 1865) at 6-8 [hereinafter Sixth Report]. Art.
1163 A.B.G.B. states –
see J.M. Chevalier de Winiwarter, trans., General Civil Code for all
the German Hereditary Provinces of the Austrian Monarchy (Vienna: Rudolph Lechner, 1866):
The provisions given here are also applicable to lawyers, physicians, and surgeons,
factors, provisors, artists, contractors and other persons, who have expressly or
taciturnly stipulated for a salary, an appointment or otherwise a reward for their
trouble, as far as no special provisions exist in regard to the matter.
In Sixth Report, supra at 8, the redactors cited Marcad8, supra, note 114 at 519, and noted
that he repeated (at n. 1) the opinion of Troplong that the dispositions of the A.B.G.B. were
all one would have expected from a country which enforced military discipline by blows. Both
Marcad6 and Troplong clearly opposed the Austrian view. For the draft of the general views
on mandate, see Papiers Caron, ibid., S. 800 at 1-5. The discussion seems to owe something
to J.-J. Clamageran, Du louage d’industrie, du mandat, et de la commission en droit romain,
dans l’ancien droitfrancais et dans le droit actuel (Paris: A. Durand, 1856) nos 301-4, who is
cited both in the draft and the printed report.
McGILL LAW JOURNAL
[Vol. 32
and inconvenience might arise from disturbing it. They therefore had de-
cided to adhere to the rules of the ancien droit reproduced in the French
Code.132 While nothing may have come of the proposal, it shows the re-
dactors to have been willing to extend the range of the contract of lease of
work beyond menial services, and to leave the distinction between it and
mandate ambiguous and shifting. This is confirmed both in the working
papers and the enacted Code.
The draft general article on lease of work, article 61,133 was enacted as
article 1666 C.C.L.C.:
The principal kinds of work which may be leased or hired are:
1. The personal service of workmen, servants and others;
2. The work carriers, by land and by water, who undertake the conveyance
of persons or things; 3. That of builders and others, who undertake works by
estimate or contract.
The French text renders “workmen” as “ouvriers” and “servants” as
“domestiques” (the provisions on carriers and builders relate to locatio
operisfaciendi and will not be dealt with further). Article 1779 C.C.E stated
that the first principal kind of work which may be leased or hired is “le
louage des gens de travail qui s’engagent au service de quelqu’un.”‘ 134 While
the commissioners simply noted in their report that their article corre-
sponded in character to article 1779 C.C.E,135 from the draft minutes we
can see it to have been the object of discussion. 36 The commission con-
sidered whether they should add “gens de travail” to the expressions used
in the Code. Morin argued strongly against doing so, suggesting they needed
a term going beyond “others”, but which would not trespass into mandate,
such as “employ”. He disapproved of”gens de travail” even in the French
text “as tending to express the old distinction between intellectual & me-
chanical labor which it is not desirable to adopt as between mandat &
louage.” It was decided to retain the draft’s phrase “and others” as saving
the commission “from the appearance of adopting any of the distinc-
tions”. 137 The departure from the wording of the French Code was the result
of a conscious decision, in contrast with that Code, and that of Louisiana,
to broaden the scope of lease of service. The specific wording of article 1666
C.C.L.C. may also owe something to Gorrie’s Synopsis. At the start of his
t32See Fourth Report, supra, note 62 at 28-30.
133Papiers Caron, supra, note 20, S. 789 at 46; S. 790 at 69. It may be noted that in S. 789,
but not S. 790, “service” reads “services”, but with the final “s” struck out.
134Art. 1779 C.C.E quoted, supra, note 97. Art. 2716 C.C.La, in relevant part virtually
137papiers Caron, ibid., S. 786 verso at Aa-1 1.
identical to art. 1779 C.C.E, translates “gens de travail” as “laborers”.
t35Fourth Report, supra, note 62 at 30.
’36Papiers Caron, supra, note 20, S. 786 verso at Aa-I 1. In Livre des Minutes, supra, note
20 at 261 it was noted on 8 January 1863 that draft art. 61 was “discut6 et adopt”.
1987]
LEGAL CLASSIFICATION AND REFORM
third chapter, “Of the Letting Out of Labor or Industry”, obviously influ-
enced by the French Code, he wrote:
Labor may be let out in three ways:
1st. Laborers, servants, apprentices, journeymen, seamen, clerks and sec-
retaries, &c., may hire their services to another person.
2nd. Carriers, porters, forwarders and affireighters, may let out their serv-
ices for the conveyance of persons or of effects;
3rd. Workmen may hire out their labor, industry or talents, to make build-
ings or other works, or by undertaking jobs of work.138
Among the doctrinal writers, both Faribault and Mignault are of the opinion
that this section of article 1666 C. C.L. C. comprehends more than domestic
servants, manual labourers and the like. 139 The draft minutes confirm this
to have been the redactors’ aim.
As well as differing from the French and Louisiana codes, article 1666
C.C.L.C. necessarily departed from the ancien droit as represented by Po-
thier14 0 There is, however, some precedent in Gorrie’s Synopsis, which sug-
gests that the redactors recognised the general, growing importance of
contracts of employment in the economy of Lower Canada. They may also
have taken into account the extensive statutory regulation of employment
in the Province, 14 1 though not mentioned in connection with article 1666
C.C.L.C.
C. The Duration of the Contract
The nature of lease of service in the Code of 1866 can be gathered from
articles 1667 to 1671, which constitute the section “Of the lease and hire
of the personal service of workmen, servants and others”. 142 These articles
provide fairly minimal regulation. Article 1667 C. C.L. C. is the almost direct
enactment of draft article 62:
’38Gorrie, supra, note 105 at 19-20.
139Mignault, supra, note 4 at 368-69; L. Faribault, Trait de droit civil du Quebec, vol. 12
(Montr6al: Wilson et Lafleur, 1951) at 289-90. Mignault points out that this is supported by
arts 2260-2262 C.C.L.C. on prescriptive periods. Compare arts 2271-2272 C.C.E and arts 3499
and 3503 C.C.La.
140See Pothier, Trait du contrat de louage, supra, note 74, no. 10.
141See Gorrie, supra, note 105 at 20-25.
142These correspond to arts 1780-1781 C.C.E in the section entitled “Du louage des domes-
tiques et des ouvriers”, and to arts 2717-2721 C.C.La. On the sources of the C.C.La articles,
see R. Batiza, “The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance”
(1971) 46 Tulane L. Rev. 4 at 113; R. Batiza, “The Actual Sources of the Louisiana Project of
1823: A General Analytical Survey” (1972) 47 Tulane L. Rev. 1; Cairns, supra, note 7 at 540-
42.
REVUE DE DROIT DE McGILL
[Vol. 32
The contract of lease or hire of personal service can only be for a limited
time, or for a determinate undertaking.
It may be prolonged by tacit renewal. 43
The first paragraph of this article embodies the same rule as article 1780
C. C.E, 14 4 though perhaps with more precise wording; the second paragraph
has no equivalent in the French Code, though Marcad6 and Troplong had
stated that tacit renewal would apply.145 The rule on renewal is found in
the ancien droit, and in Lower Canada before the Code.146 Some of the
authorities cited by the redactors stressed that one could not lease out one’s
services in perpetuity. 47 This last was the issue which concerned the com-
mission in its discussion. The redactors considered the effect of excessively
long contracts for lease of service, and agreed that “the intention of the
article is to prevent servitude for life, & the Court would consider whether
the contract was made in view of servitude for life or otherwise.'” 48 The
Fourth Report merely noted that there had been an addition to the provision
of the French Code.14 9
Draft article 63, enacted as article 1668 C.C.L.C., has no equivalent in
either the French or Louisiana codes. It provides:
143See Papiers Caron, supra, note 20, S. 789 at 47; S. 790 at 70, though “service” was originally
“services” in both, and the final “s” has been deleted.
at 25.
1
civil expliqu6 suivant l’ordre du Code, vol. 11 (Paris: Charles Hingray, 1840) at 120.
144See supra, note 97.
’45Marcad6, supra, note 114 at 527; R. Troplong, De l’change et du louage, vol. 3, Le droit
’46See Pothier, Traitt du contrat de louage, supra, note 74, no. 372; Gorrie, supra, note 105
471n Papiers Caron, supra, note 20, S. 789 at 47; S. 790 at 70, the following authorities were
cited: Pothier, ibid., nos 371-72; Troplong, supra, note 145; G. du Rousseaud de la Combe,
ed., Oeuvres de M. Antoine d’Espeisses, avocat et jurisconsulte de Montpelier, ofi toutes les plus
importantes mati~res du droit romain sont m~thodiquement expliqutes et accommodees au
droitfrancais, vol. 1 (Lyon: Chez les Frdres Bruysset, 1750) at 92 (1.2.6); and Clamageran,
supra, note 131, nos 111-12. McCord gives the same authorities, excluding Clamageran and
adding D.35.1.71.1 and 2, and citing only no. 372 of Pothier. The passages of Pothier and
Troplong dealt with tacit renewal, that of d’Espeisses stated that “[L]’homme libre ne peut pas
louer ses oeuvres A perpdtuit6”, those of Clamageran dealt with the effects of a purported louage
de services in perpetuity, and the Digest texts dealt with conditions in legacies infringing liberty.
The relevant art. of the C.C.E was given by the drafts and McCord as 1780, supra, note 97.
On art. 1780 C.C.E, Maleville, supra, note 55 at 401 stated: “Et non pour toute sa vie, car
alors on serait une esp~ce d’esclave. Mais on peut s’engager pour une entreprise, quoiqu’il soit
impossible d’en fixer la duroe, et cela fut observ6 ici.” See also J.B. DeLaporte & PN. Rifle-
Caubray, Les pandectesfranCaises, ou recuell complet de toutes les lois en vigueur, vol. 13 (Paris:
Riff-Caubray, 1805) at 190-91: “II est 6vident que ‘engagement des services pour la vie serait
une servitude.”
’48Papiers Caron, ibid., 786 verso at Aa-1 1. In Livre des Minutes, supra, note 20 at 261 (8
January 1863) it was merely noted that draft art. 62 had been “adopt”.
149Supra, note 62 at 30.
1987]
LEGAL CLASSIFICATION AND REFORM
[The contract of lease or hire of personal service] is terminated by the
death of the party hired or his becoming, without fault, unable to perform the
services agreed upon.
It is also terminated by the death of the party hiring, in some cases, ac-
cording to circumstances.
In their discussion the commissioners noted that though there was no equiv-
alent article in the French Code, it was as well to include it, since the rule
was exceptional to the common rule on the extinction of contracts.1 50 They
seem to have had some difficulty, however, in providing from the ancien
droit a “source” for the rule. In the drafts, they cited some passages from
such as a servants illness
Pothier dealing with the effect offorce majeure –
on the contract and the
or weather preventing the harvesting of crops –
duties under it, and with the potential damages due should a servant leave
his master’s employment with or without justification. 15’ The drafts also
cited two passages from Clamageran’s treatise, of which the first discussed
the means by which the contract of louage d’industrie et de services ended
in Roman law, including the incapacity of the worker and death of the
employee or contractor, and the second dealt with force majeure in the
ancien droit.152 In one of the drafts, the reference to Clamageran was possibly
added later in a different hand, which has also added three notes not found
in the other draft, one on the second paragraph to article 1668 C.C.L.C. to
the effect that “even according to Pothier the contract may be only sus-
pended”, another stating that the texts, cited from Pothier were contrary to
two texts of the Digest “as to force majeure as interpreted by Clamageran
no. 22”, the third stating simply “V. Ortolan II.p.269”. 153 In fact, the rule
embodied in the first paragraph of article 1668 C.C.L.C. in part closely
resembles the passage cited from Ortolan’s textbook on Justinian’s Institutes:
“Pour le louage de services (operarum), le contrat finit par la mort de celui
qui a lou6 son travail, car avec lui p~rit aussi la chose louse.”‘ 54 Perhaps
Ortolan was ultimately given as an authority because no exact statement of
this rule could be culled from a text of the ancien droit,’55 and McCord
’50Papiers Caron, supra, note 20, S. 786, verso at Aa-l I; in Livre des Minutes, supra, note
20 at 261 (8 January 1863) it was noted that draft art. 63 was “discut6 et adopt”.
‘I5 Pothier, Trait du contrat de louage, supra, note 74, nos 165-66, 168, 171 and 174-75.
‘ 52Clamageran, supra, note 131, nos 30 and 106.
‘ 53Papiers Caron, supra, note 20, S. 790 at 71. The reference to Clamageran, ibid., no. 22 is
to his discussion of D. 19.2.19.9 and h.t. 33.
154 Ortolan, supra, note 104 at 269. Clamageran, ibid., no. 30 sets out the same rule for Roman
law.
‘ 55Gorrie, supra, note 105 at 31 dealt with the effect of death only in connection with the
contract operisfaciendi. See, infra, note 158.
702
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gives as authorities for the article only Pothier and Ortolan.’ 56 McCord also
cites article 1795 C.C.E, though in the drafts, where usually there was a
reference to the French Code, it merely was stated: “C.N. (Nil)”.1 57 This
article dealt with the contract operisfaciendi.158 Though here uncited, it
may be pointed out that the precise rule in article 1668 C.C.L.C. was set
out by Marcad6:
Le louage des services finit toujours par la mort du domestique ou de l’ouvrier.
Le maitre ne saurait 8tre contraint d’accepter leurs h6ritiers A leur place, et
ceux-ci r~ciproquement ne pourraient pas 8tre contraints par le maitre A con-
tinuer le travail de leur auteur, le contrat n’ayant 6t6 form6 de part et d’autre
que pour la personne de cet ouvrier ou de ce domestique. Quant i la mort du
maitre, son effiet ne saurait etre indiqu6 en these et d’une manire absolue; car
c’est par les circonstances de chaque esp~ce qu’on verra si le louage n’a 6t fait
qu’en consid6ration du maitre, et si sa mort ds lors doit r6soudre le contrat1 59
Any other provision would have been unacceptable, and in their report the
redactors remarked that this was a matter which ought to be decided, there
being no provision in the French Code.160
‘ 56He cited Pothier, Traitg du contrat de louage, supra, note 74, nos 165-68 and 171-75; and
Ortolan, supra, note 104 at 271 (this latter page may be an error or a reference to a different
edition).
157See Papiers Caron, supra, note 20, S. 789 at 47; S. 790 at 71.
158Art. 1795 C.C.E states:
Le contrat de louage d’ouvrage est dissous par la mort de l’ouvrier, de rarchitecte
ou entrepreneur.
Compare art. 2737 C.C.La:
Le contrat de louage d’ouvrage est dissous par la mort de l’ouvrier, architecte ou
entrepreneur, A moins que le propri~taire ne consente d’accepter, pour la continua-
tion de l’ouvrage, l’h~ritier de l’entrepreneur, ou l’ouvrier que cet h~ritier lui
pr~sente.
The variation from art. 1795 C.C.E is drawn from its project of 1800. The equivalent article
in the Quebec Code, art. 1692 C.C.L.C., reads thus:
The contract of lease or hire of work by estimate and contract is not terminated
by the death of the workman; his legal representatives are bound to perform it. But
in cases wherein the skill and ability of the workman were an inducement for making
the contract, it may be cancelled at his death by the party hiring him.
This compares with Gorrie, supra, note 105 at 31:
Contracts for hiring out work are cancelled by the death of the workman, architect,
or undertaker, whenever the work is of such a nature that the personal talents of
the undertaker have been taken into account, unless the owner should consent to
the continuance of the work by the representatives or heirs of the deceased person.
159Marcad6, supra, note 114 at 527-28.
‘ 60See Fourth Report, supra, note 62 at 30.
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LEGAL CLASSIFICATION AND REFORM
D. The Decisory Oath
Draft article 64 provided:
The oath of the master is received to establish the rate of wages and the
payment of them. 6’
When it was discussed on 8 January 1863, commissioner Morin suggested
that the point was already covered by an article in the title on prescription, 162
and indeed the last three paragraphs of draft article 104 in that title dealt
with the decisory oaths of masters.1 63 The draft article was reserved for
further consideration.1 64 On 14 January 1863 draft article 64 was reconsi-
dered, and the following adopted in its place:
In any action for wages by domestics or farm servants, the master may,
in the absence of written proof, offer his oath as to the fact of the payment
accompanied by a detailed statement, and as to the conditions of the engage-
ment; If the oath be not offered by the master, it may be deferred to him and
is of a decisory nature as regards the subjects to which it is limited. 65
,
This was enacted as article 1669 C.C.L.C. with minor rearrangement.1 66
Though the draft minutes of the discussion of this article do not survive,
we may note that in the printed report the commission described this article
as having been taken from the title on prescription and transferred here as
its proper place, as following the old law, and as coincident with article 1781
C.C.E. 16 7
The decisory oath of the master was a well-established institution of
the ancien droit, as the citations of sources in the draft and in McCord’s
‘6 ‘Papiers Caron, supra, note 20, S. 789 at 48; S. 790 at 72.
’62Papiers Caron, ibid., S. 786 verso at Aa-1 1.
163Papiers Caron, ibid., S. 785 at 208-211.
‘1While on Papiers Caron, ibid., S. 786 verso at Aa- 11 was merely noted “reserved”, on S.
’65Livre des Minutes, supra, note 20 at 263.
l66Art. 1669 C.C.L.C. reads as follows:
790 at 72 someone has written: “reserved for comparison of this with 104 Prescn.”
In any action for wages by domestics or farm servants, in the absence of written
proof, the master may offer his oath, as to the conditions of the engagement and
as to the fact of payment, accompanied by a detailed statement.
If the oath be not offered by the master it may be deferred to him, and is of a
decisory nature, as regards the subjects to which it is limited.
167Fourth Report, supra, note 62 at 30, and compare Report of the Commissioners Appointed
to Codify the Laws of Lower Canada in Civil Matters (Third Report), vol. 1 (Quebec: Desbarats,
1865) at 435 [hereinafter Third Report].
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edition amply testify,168 and article 1781 C. C.E expresses it in clear, general
terms. 169 Where article 1669 C.C.L.C. seems to differ from the ancien droit,
the French Code and most notably its own original draft, is in its restriction
of the possibility of such an oath to the masters of domestics and farm
servants. It also seems to do so to a lesser extent in contrast with draft
article 104 of the title on prescription, which had talked of “serviteurs de
maison ou de ferme et autres employ6s domestiques A gages”. 170 This was
perhaps alluded to when on one draft was written: “Note the difference
between this new art: & 104 Presc. in the report the art: 104. must be
remodelled.”‘ 17 1 While the sources in the ancien droit did tend to use the
terms domestiques and serviteurs,1 72 we have seen that the Quebec redactors
deliberately broadened the scope of lease of service beyond menial occu-
pations. The Pandectes franCaises explained thus the general rule of the
French Code:
En effet, on n’est gu6re dans l’usage de prendre des quittances des gages que
l’on paye A un domestique, et des salaires que l’on donne A un ouvrier. Il est
juste, dans ce cas, d’accorder la cr6ance au maitre. La r6gle contraire, ou celle
qui exigerait une preuve 6crite serait tr~s-embarrassante.173
168Papiers Caron, supra, note 20, S. 789 at 48; S. 790 at 72 cite: Pothier, Traite du contrat
de louage, supra, note 74, no. 175 (the first in fact gives no. 174, obviously an error); Merlin,
Repertoire universel et raisonn6 de jurisprudence, vol. 4, supra, note 84 at 4-5 (domestique, nos
2-4) (note that the redactors are citing a different edition); J.B. Denisart, Collection de decisions
nouvelles et de notions relatives ,i la jurisprudence, vol. 6, rev. ed. (Paris: Desaint, 1787) at 636-
51 (domestique); and, in the same collection, vol. 9, rev. ed. (Paris: Desaint, 1790) at 139-45
(gages). The redactors of the Code of 1866 always referred to this edition as the Nouveau
Denisart in contrast to the earlier editions, such as J.B. Denisart, Collection de decisions nou-
velles et de notions relatives ei la jurisprudence actuelle, vols 1-3 (Paris: Savoye, 1763-1764),
which they called the Ancien Denisart. McCord gives as sources: Coutume de Paris, art. 127
(a provision on prescription), Pothier, supra, no. 175; Denisart, vol. 9, supra at 140 (gages, no.
3): P.J.J.G. Guyot, Repertoire universel et raisonne dejurisprudencecivile, criminelle, canonique
et bneficiale, vol. 6, rev. ed. (Paris: Visse, 1784) at 102 (domestique). Both S. 789 at 48 and
McCord cite art. 1781 C.C.E as the equivalent article. The differences between the two lists
are readily explained. Art. 127 C.P. was added in respect of the alteration of the article on
prescription (compare S. 785 at 210). In S. 790 at 72, a later hand has added this article to the
list of sources. Merlin’s Repertoire was based on that of Guyot, and in both S. 789 at 48 and
S. 790 at 72 it is said of the citation to Merlin “he cites the arrts”. The passage cited from
Guyot is the same one. A subsequent hand has also added on S. 790 at 72 a reference seemingly
to Troplong, which seems to have little relevance, and is probably mistaken.
169Supra, note 97. See A. Castaldo, “Lhistoire juridique de ‘article 1781 du Code Civil: Le
maitre est cru sur son affirmation” (1977) 55 Rev. hist. dr. fran. 6tr. 211.
’70papiers Caron, supra, note 20, S. 785 at 208.
7’7 Papiers Caron, ibid., S. 790 at 72.
172See e.g., Guyot, supra, note 168.
173DeLaporte & Rifit-Caubray, supra, note 147 at 191. Maleville, supra, note 55 at 402 wrote:
On demanda si le domestique ou ouvrier pouvait atre requ A prouver par t6moins
que le maitre avait convenu lui devoir tant, et si, malgr6 l’offre de cette preuve,
l’affirmation devait 8tre defer6e au maitre.
On rdpondit que l’offre de preuve ne devait pas 8tre reque, parce que les ouvriers
et domestiques se serviraient de t6moins entre eux.
1987]
LEGAL CLASSIFICATION AND REFORM
These arguments could not be used in the broader scheme set out by article
1666 C.C.L.C., so one may conjecture that the redactors accordingly re-
stricted the applicability of article 1669 C.C.L.C. to those two groups of
servants who not only were low in status but also worked in close contact
with their masters. The rule would not have been appropriate in the case
of, say, clerks or factory hands.
E. Contract and Special Legislation
Articles 1670 and 1671 C.C.L.C. have no equivalents in the French
Code. The former states:
The rights and obligations arising from the lease or hire of personal service
are subject to the rules common to contracts. They are also regulated in certain
respects in the country parts by a special law, and in the towns and villages
by by-laws of the respective municipal councils.
The latter states:
The hiring of seamen is subject to certain special rules provided in the
act of the imperial parliament, intituled: The Merchant Shipping Act, 1854,
and by an act of the parliament of Canada, intituled: An Act respecting the
Shipping of Seamen, and the hiring of boat-men, commonly called voyageurs,
by certain rules provided in an act intituled: An act respecting Voyageurs.
When the first of these was adopted by the commission, it was explained
in the draft minutes that “the rules of the Statute are not set forth because
they are more matters of police than of principle and in many instances in
fact are departures from formal principles.”‘ 174 The first sentence of article
1670 C. C.L. C. states clearly the redactors’ general approach to the relation-
ship between employer and employee, and helps explain why they provided
so few rules on the nature of the contract. The comment in the minutes is
intriguing, and shows the commission to have considered that only broad
statements of principle ought to be found in the Code.175 This suggests –
as article 1671 C.C.L.C. tends to confirm –
that the commissioners were
unwilling to let the actual detail of important areas of law and practice
undermine broad statements of general contractual principle.
Conclusion
The first sentence of article 1670 C.C.L.C. is in many ways the legis-
lative counterpart to the business community’s declaration in 1867 of its
belief in contractual freedom in employment, 176 and is reminiscent of Gor-
174 Papiers Caron, supra, note 20, S. 786 verso at Aa-1 1.
175Compare Fourth Report, supra, note 62 at 30.
176See above, text accompanying note 45.
McGILL LAW JOURNAL
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rie’s statement that “[t]he contract[s] between those persons and their em-
ployers are regulated in the absence of particular law or express stipulation,
by the rules governing Conventional Obligations generally.’ 77 Even more
than the redactors of the French Code, the codification commissioners be-
lieved in freedom of contract, which explains not only the paucity of special
provisions on employment, but also their rejection of the alternative insti-
tutional treatment –
exeinplified by Blackstone’s Commentaries and the
Louisiana Code –
of a servant as having a particular status. Though the
commissioners did not claim to be innovating over the ancien droit in any
of the articles on lease or hire of service here examined,178 they consistently
exercised their discretion to expand its scope, while providing only a min-
imum of regulation – presumably because they thought that the specifics
of any individual contract would best be left to negotiation between the
parties, and because of the existing detailed statutory provisions. 179
Both the ancien droit and the French Code restricted lease and hire of
service to fairly menial occupations. While the Quebec redactors, under the
influence of tradition, decided not to amalgamate mandate with lease and
hire of work (which generally would have affected locatio operis rather than
locatio operarum), as well as having broadened the scope of lease and hire
of work,’ 80 they seem to have grouped together all types of lessees in this
contract. Guyot and Pothier, for example, distinguished the terms of service
of farm servants and labourers in town, from those of personal servants
who could be dismissed at the will of their masters, no matter the period
for which they had been employed.’ 81 Blackstone and the Louisiana Code
also differentiated among different types of servants. 82 The Quebec Code,
on the other hand, distinguished between different classes of servants only
by following article 109 C.C.E 83 to give domestic servants who stayed with
their master his domicile 84 (thus settling a controversial point in the ancien
177Gorrie, supra, note 105 at 20.
‘178Except in some of those on prescriptive periods mentioned supra, note 139.
’79See Gorrie, supra, note 105 at 20-25.
180Consider that art. 2262(3) C.C.L.C. classes “merchants’ clerks and other employees” with
“domestic or farm servants”. Contrast arts 3172 and 3181 C.C.La which distinguish between
“domestiques ou gens de service” and “commis, secr6taires et autres employ6s de ce genre”.
18’Pothier, Traite du contrat de louage, supra, note 74, nos 168-75; Guyot, supra, note 168
at 102.
182Blackstone, supra, note 11 at 411-15; art. 157 C.C.La On the complications of the Louisiana
position, see Cairns, supra, note 7 at 561-67.
’83See supra, note 96.
184Art. 84 C.C.L.C. states:
The domicile of persons of the age of majority, who serve or work continuously
for others, is at the residence of those whom they serve or for whom they work, if
they reside in the same house.
1987]
LEGAL CLASSIFICATION AND REFORM
though this is not mentioned ’85) and by allowing masters of do-
droit –
mestic servants and farm labourers in certain circumstances to give decisory
oaths. Following the French Code, the Quebec Code eschewed the elaborate
regulation, found in the ancien droit and the Louisiana Code, of the ending
of a contract of hire of services. In all this the codification commission’s
choice of provisions can be seen to be determined by its members’ beliefs
in freedom of contract. It is perhaps in this respect significant that though
under article 1054 C.C.L.C.186 masters and employers continued, as in the
ancien droit,187 to be liable for damage caused by their servants and work-
men in the performance of their work, whereas in the ancien droit this had
tended to be explained on the grounds of a master’s failure to choose good
servants,188 the master’s liability now tended to be explained as follows:
185They cited Merlin, Repertoire universel et raisonne de jurisprudence, vol. 4, supra, note
84, at 10-12 (domicile, no. 4); and J.B. DeLaporte & PN. Ritte-Caubray, Les pandectesfran-
caises, ou recueil complet de toutes les lois en vigueur, vol. 2 (Paris: Rifre-Caubray, 1803) at
427, both of which works mention the two main contrasting pre-codification cases on the
domicile of servants, the latter stating –
if the McCord reference to p. 227 is, as it must be,
a mistake for 427 –
that: “Cet article d6cide une question autrefois fort controvers~e. On
doutait si Ia commoration, pour un service, ou un travail habituel, attribuait le domicile.” The
redactors also cited E Bouron, Le droit commun de la France et la coutume de Paris reduites
en principes tiros des ordonnances, des arr~ts, des loix civiles et des auteurs; et mises dans l’ordre
d’un co mmentaire complet et m~thodique sur cette coutume, vol. 1 (Paris: chez Grange, 1747)
at 90. Certainly in the edition I consulted, this has nothing germane. They also cited art. 109
C.C.E, supra, note 96 and D.50.1.6.3. and 50.1.22 which are relevant if one equates libertini
with servants. It may be noted that J. de Maleville, Analyse raisonn&e de la discussion du Code
civil au Conseil d’Etat, vol. 1, 2d ed. (Paris: Garnery, 1807) at 109, who is not cited, remarked
that art. 109 C.C.E was “Conforme aux lois 8 et 22, If. ad municip”, i.e. D.50.1.8 and 50.1.22.
See also Second Report, supra, note 25 at 165. There is nothing of interest on this in the
manuscript working papers.
186Art. 1054 C.C.L.C. states:
[Every person] is responsible not only for the damage caused by his own fault,
but also for that caused by the fault of persons under his control and by things
which he has under his care;
Masters and employers are responsible for the damage caused by their servants and
workmen in the performance of the work for which they are employed.
The differences from art. 1384 C.C.E apparently arise from the commission’s study of various
works critical of that article: K.-S. Zachariae, Le droit civilfranqais, vol. 4, trans. by G. Mass6
& C. Verg6 (Paris: Auguste Durand, 1858) at 24 n. 8 (on those who have minors under their
care); C.-B.-M. Toullier, Le droit civilfranCais, suivant l’ordre du code, vol. 11, 5th ed. (Paris:
J. Renouard, 1830) nos 260-78 and 282-89 (no. 283 on whether the last paragraph of art. 1384
C.C.F. referred to “maitres” and “commetants”). Also cited were: D.47.6.1.1 and 47.6.5 and
6; art. 1384 C.C.E; Denisart, Collection de d&isions nouvelles et de notions relatives d2 la
jurisprudence, vol. 6, supra, note 168 at 151 (d~lit, no. 3); Pothier, Traitt des obligations, supra,
note 53, nos 121-22.
187See Pothier and Denisart, ibid.
188Denisart, ibid. An ordinance of Franqois I of December 1540 had in fact forbidden the
taking into service of persons of bad character, under sanction of civil liability for any damage
caused by them in the course of their duties: see Guyot, supra, note 168 at 99.
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[I]l est consid6r6 comme l’ayant fait lui-m~me par le ministre de son domes-
tique ou de son pr6pos6, contre lesquels il ne peut, par cons6quent, avoir de
recours …. 189
In retrospect the adoption in 1866 of a contractual approach to employment
may seem to have been foreordained –
a perfect example of the operation
of Maine’s over-quoted principle. 90 It is important, however, to appreciate
that the redactors cannot have viewed their decision as inevitable. Only the
commissioners’ intuitive understanding of what seemed appropriate for
Quebec society brought about these specific rules. In Louisiana, the Code
of 1870 still included a title on master and servant in its book on persons.’ 9′
As Kahn-Freund has shown, Blackstone’s approach influenced English law
well into the twentieth century.1 92 Furthermore, while the provisions in the
Code usefully espoused a popular ideology, Quebec’s labour law was not
long to remain the few simple statements made by the codification com-
mission. 193 Indeed, given that articles 1670 and 1671 C.C.L.C. already re-
ferred to special legislation and provisions outwith the Code, one may
wonder whether the redactors’ approach was not obsolete from the begin-
ning, other than as an expression of desired principle. In this, Gorrie’s oth-
erwise rather slight and uninteresting Synopsis is instructive. He devoted
very little attention to the matters dealt with in the Code but set out many
of the statutory provisions and alluded to many more. The picture painted
by his pamphlet is of detailed legislative regulation.
This paper started with the suggestion that the conservatism of the Civil
Code of Lower Canada has traditionally been exaggerated: I hope this has
been demonstrated, at least for lease and hire of service. I would not want,
however, to be understood as arguing that the Code operated as some type
of total revolution in the law. Even though in contract in general, and em-
ployment in particular, reforms, even important reforms, were introduced,
the Code is still deeply rooted in a specific legal culture, and only to be fully
189Toullier, supra, note 186, no. 282.
190H. Maine, Ancient Law, 8th ed. (London: John Murray, 1880) at 170:
The word Status may be usefully employed to construct a formula expressing the
law of progress thus indicated, which, whatever be its value, seems to be sufficiently
ascertained. All the forms of Status taken notice of in the Law of Persons were
derived from, and to some extent are still coloured by, the powers and privileges
anciently residing in the Family. If then we employ Status, agreeably with the usage
of the best writers, to signify these personal conditions only, and avoid applying
the term to such conditions as are the immediate or remote result of agreement,
we may say that the movement of progressive societies has hitherto been a move-
ment from Status to Contract.
192Arts 162-177 C.C.La.
192Kahn-Freund, supra, note 12 at 508-09.
193See G. Charlap, “The Contract of Employment” in Le droit civilfranqais: Livre souvenir
desjourntes du droit civilfranCais (Montreal and Paris: Sirey, 1936) 417.
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LEGAL CLASSIFICATION AND REFORM
understood within that culture. The codification commissioners in Lower
Canada acted not on the basis of a scientific’ 94 investigation of the state of
Lower Canadian society to identify the reforms needed in the law, but on
that of a critical examination of the existing law in the light of the provisions
made by other systems, and in the context of tradition and current juris-
prudential theory, while taking into account their own intuitive understand-
ings of what would be best in present circumstances. Though the
conservatism of the Code may have been exaggerated, the reforms carried
out arose from within the tradition which gave birth to the Code itself.
194p.. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979)
at 92-93, has pointed out that a “scientific” approach to legislation for the U.K. was only
possible when government had become a large bureaucracy capable of collecting and examining
a large volume of data.
McGILL LAW JOURNAL
[Vol. 32
Commission charg~e de la codification des lois du Bas-Canada. La photographie, prise entre
1863 et 1865, montre, de gauche A droite, Joseph-Ubalde Beaudry (secrtaire), l’honorable
Charles Dewey Day (commissaire), l’honorable Ren6-Edouard Caron (president), l’honorable
Augustin-Norbert Morin (commissaire) et Thomas McCord (secr~taire). Cette photographie se
trouve A la biblioth~que de droit de ‘Universit6 McGill.
