McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
Volume 31
No 4
Enforcing Rights in Corporeal Moveables: Revendication and
1986
Its Surrogates
PART ONE*
R.A. Macdonald**
Focusing on remedies for vindicating rights
in corporeal moveables, the author reviews
how the action in revendication and its sur-
rogates may be deployed today to protect these
rights. In particular, the author examines how
the changing conceptions of corporeal move-
ables have challenged some of the basic prin-
ciples of the 1866 Civil Code of Lower Canada
inducing courts to develop new applications
for traditional remedies.
Portant son attention sur les recours concer-
nant les droits mobiliers corporels, l’auteur
discute de Ia. faon dont l’action en reven-
dication et ses substituts peuvent 8tre utilis~s
pour prot~ger ces droits. Lauteur examine en
particulier les retombdes de l’volution des
conceptions de Ia notion de meubles corpo-
rels sur certains des principes de base du Code
civil du Bas-Canada de 1866, en incitant,
notamment, les tribunaux A d6velopper de
nouvelles applications des recours traditionnels.
‘The continuation of this article will appear in volume 32 of the McGill Law Journal.
*’Dean of the Faculty of.Law, McGill University. This essay began as a Background Paper
prepared in 1983 for the Ontario Law Reform Commission under the title “Remedies for
Wrongful Interference with Corporeal Moveables in Quebec”. That study of civil law remedies
consisted of (i) an examination of actions such as revendication, specific performance, the
action in restitution of an object and damages, (ii) a review of interlocutory remedies such as
seizures before judgment, sequestration and injunctions, (iii) a survey of execution remedies
such ai oppositions to withdraw from seizure and oppositions for payment and (iv) an assess-
ment of whether self-help recourses such as recapture were possible in the law of Quebec. When
asked by the McGill Law Journal to permit its publication in a revised form, I began to
reconsider the original Background Paper. In particular I was interested in two subsidiary
themes which emerged from the original study: first, the extent to which codal premises about
the law of property have been overtaken by practice during the past one hundred years; and
second, the extent to which property theorists seem wedded to these premises and the con-
ceptual distinctions they imply, notwithstanding their apparent rejection in practice. I have,
consequently, transformed the study in order to set these other themes into sharper relief. It
follows that the essay which now appears is only remotely the heir of the 1983 Background
Paper, which still remains confidential to the Ontario Law Reform Commission.
@McGill Law Journal 1986
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 31
Synopsis
Introduction
A. Property Concepts of the Civil Code
1.
2.
3.
4.
Real Rights and Personal Rights in Corporeal Moveables
Ownership of Corporeal Moveables
Detention and Possession
The Dematerialization of Corporeal Property
B. Remedial Principles of the Code of Civil Procedure
1.
2.
3.
4.
Actions for Vindicating Rights in Corporeal Moveables
Interlocutory Recourses and Oppositions to Seizure
Specific Recovery Otherwise Than By Action
Remedies Controlling Rights
C. Recognizing and Vindicating the New Property
II. The Action in Revendication
A. Elements of a Theory of the Action
1.
2.
3.
Codal Texts in Quebec
The Theory of the Action in France
The Theory of the Action in Quebec
B. Who May Bring the Action in Revendication?
1.
Titularies of Existing and Actual Real Rights
a. Owners
b. Titularies of Principal Real Rights
c. Titularies of Accessory Real Rights
i. Titularies of Possessory Accessory Real Rights
ii. Titularies of Non-Possessory Accessory Real Rights
d. Titularies of “Real Rights ofAdministration”
* *
*
19861
ENFORCING RIGHTS IN MOVEABLES
I.
Introduction
1. Distinguishing Persons and Property – Legal theorists generally acknow-
ledge that the entire body of private law in any civil law jurisdiction today
can be developed as a series of variations on one major theme –
the dis-
tinction between persons and property.’ The structure of the Civil Code of
Lower Canada itself consecrates this distinction: Book One sets out the
principles governing the attribution of legal personality, while Book Two
elaborates the main rules concerning the scope and characteristics of rights
in property.2 The remainder of the Code, inter alia, explores differing mech-
anisms by which the right of ownership, or certain of its dismemberments,
may be allocated and transferred among legally recognized persons.
At the time of Codification, persons and property could be (and were)
distinguished primarily on the basis of observations about the physical world.
Human beings comprised the set “persons”; corporeal things, including
‘This distinction, which in its modem understanding grew out of the enlightenment, probably
achieved its most explicit formulation in I. Kant, MetaphysischeAnfangsgrandederRechtslehre,
which constituted the first part of the Metaphysik der Sitten (K6nigsberg: Friedrich Nicolovius,
1797). See, in particular, the section entitled “On the Mode of Having Something External as
One’s Property” in I. Kant, The Metaphysical Elements of Justice, trans. J. Ladd (Indianapolis:
Bobbs-Merrill, 1965) at 51-67. For a modem rendition, see G. Marcel, Etre et Avoir (Paris:
Aubier-Montaigne, 1968). Kant’s position alternatively reads as a subsumption of all property
rights under interpersonal rights, a position once hotly debated in France: see M.E Planiol,
Traite elimentaire de droit civil, t. 1, 4th ed. (Paris: L.G.D.J., 1906) no. 2159. But his view is
not relevant only to civil law. Both John Austin and Jeremy Bentham see the Kantian dis-
tinction as fundamental to the private law of England: see J. Austin, Lectures on Jurisprudence,
vol. 1, 5th ed. (London: John Murray, 1911) Lecture 13, 357 at 357-58.
2The centrality of the distinction between persons and property, and the policy choices it
posed, were not lost on the 1866 Codifiers: see the synopsis in T. McCord & A.D. Nicholls,
eds, The Civil Code of Lower Canada, 3d ed. (Montreal: Dawson Bros, 1880) i at i-xiv. An
especially helpful statement of the objectives of codification, as concerns persons and property,
may be found at ii-iii of this synopsis:
It is one of the characteristics of the olden legislation that it appears to have had
in view Things before Persons. … Hence the numerous distinctions of property
and the different rules of law to which Persons were subject in respect of each kind
of Thing. Hence too, the old rule “Traditionibus non nudis pactis dominia rerum
tranferuntur,” and similar maxims. … On the other hand, in modem society …
[t]he tendency of the age is to make Things subservient to Persons ….
REVUE DE DROIT DE McGILL
[Vol. 31
land, comprised the set “property”. 3 But this first approximation of the legal
distinction between persons and property was not an accurate reflection of
the civil law even in 1866. To begin with, the Code accorded full legal
personality (and capacity) to a variety of non-anthropomorphous entities:
business corporations, municipalities and churches. 4 It also limited and even
denied legal capacity to broad categories of natural persons: minors, inter-
dicted persons, insane persons, imbeciles, married women and those declared
civilly dead.5 Moreover, the concept of property itself was hardly congruent
with the notion of corporeal things. On the one hand, certain corporeals,
such as most navigable and floatable rivers and their banks, as well as
consecrated vessels, could neither be prescribed nor fully owned in the pri-
vate domain. 6 On the other hand, in its usual denotations, the term “prop-
erty” apparently encompassed incorporeals, such as dismemberments of
ownership, rights evidenced by non-negotiable instruments, debts, personal
rights in relation to corporeals, and rights of action. 7 Nevertheless, within
the limits imposed by nineteenth-century exegesis of the Civil Code, a basic
division of persons and property on phenomenal rather than noumenal
grounds could be sustained.8
2. Metamorphosis of the Distinction –
In the century since Codification,
however, this simple conceptual bifurcation has increasingly shown itself to
30f course, the term “property” has two distinct meanings which often lead to confusion.
In its narrow sense “property” refers only to ownership or its dismemberments (lus in re or
jus in re aliena). Here the term refers to what are traditionally known as real rights. More
generally the term may be used to describe all rights capable of economic exploitation. In this
second sense “property” is synonymous with “patrimony”, and includes jus ad rem as well as
other rights in personam. Except where the context clearly requires otherwise, the terms “prop-
erty” and “proprietary rights” will be used in their narrower meaning.
4Title Eleventh of Book First of the 1866 Code, in contrast to its analogue in the 1804 Code
Napolon, contains a remarkably elaborate exposition and classification of non-physical persons
(“les personnes morales”).
5Sometimes the Code imposed a legal incapacity or “incapacit6 d’exercice” (as in the case
of married women). Legal personality was actually denied in the case of persons declared civilly
dead by establishing an “incapacit6 de jouissance”: see arts 32-38 C.C.L.C., repealed 8 May
1906.6See arts 399-404, 583-594 and 2212-2221 C.C.L.C.
7That is, even in 1866 the term “property” had begun its transition from a term relating to
8For an assessment of the phenomenal underpinnings of nineteenth-century property theory,
see R. Savatier, Les m~tamorphoses &onomiques et sociales du droit prive d’aujourd’hui, vol.
3, 2d ed. (Paris: Dalloz, 1959) c. 16, no. 437ff. See also M.R. Cohen, “Property and Sovereignty”
(1927) 13 Cornell L.Q. 8; and C.B. Macpherson, “The Meaning of Property” in C.B. Mac-
pherson, ed., Property: Mainstream and Critical Positions (Toronto: University of Toronto
Press, 1978) 1 at 6ff. for critical discussions of the misconception of property as things. But
compare J. Waldron, “What is Private Property?” (1985) 5 Oxford J. Legal Stud. 313, who
claims that property theory must grow out of an understanding of objects of everyday exper-
ience, i.e., corporeal things.
things to an expression equivalent to “patrimony”.
1986]
ENFORCING RIGHTS IN MOVEABLES
be outmoded.9 No doubt because of the moral centrality of personhood,
and because the relationships contemplated by the law of persons have
undergone radical transformation over the past one hundred years, sub-
stantial effort has been devoted to modifying codal rules relating to the
definition and attribution of legal personality.10 Hence, it is often thought
that the primary direction of twentieth-century legal evolution has been the
migration into the law of persons of matters previously regulated by the
law of property.I
Such an observation would be only partially correct. Legislative qui-
escence should notbe-taken for an absence of social and legal transformation
within the law of property.12 Changing judicial interpretations of codal texts,
changing deployment in practice of traditional contractual forms and devices,
and changing economic conditions often accomplish greater legal change
than legislative fiat. In other words, a failure of codal amendment is not
itself proof of the obsolescence of the underlying assumptions from which
9For formal recognition of this process of codal aging in general, see R-A. Cr~peau, “Civil
Code Revision in Quebec” (1974) 34 La L. Rev. 921 at 924, who discusses the “existence of
a tremendous gap between the basic policies as they are enshrined in the Civil Code and the
social realities which the Civil Code purports to regulate.” See also J.-L. Baudouin, “Le Code
civil qu6b~cois: Crise de croissance ou crise de vieillesse” (1966) 44 Can. Bar Rev. 391. But
compare the comment on Quebec, Civil Code Revision Office, Report on the Quebec Civil
Code: Draft Civil Code, vol. 1 (Quebec: P-diteur officiel, 1978) [hereinafter the Draft Civil
Code] by R.A. Macdonald, “Civil Law – Quebec – New Draft Code in Perspective” (1980)
58 Can. Bar Rev. 185 at 192-93.
t0Major developments include the abolition of civil death, the gradual equalization of the
legal status of spouses, the liberalization of adoption and divorce, the suppression of many of
the consequences of illegitimacy, the lowering of the age of majority and the recognition of a
minor’s independent and primary legal interest in his own affairs. Even the insertion of arts
981aff. C.C.L.C. and modifications to arts 1871-1888 C.C.L.C. as they concern limited part-
nerships alter significantly the patrimonial consequences of the legal personality of trustees
and special partners. There have also been important extra-codal initiatives relating to the
types and capacities of “les personnes morales”. These include the reform of the Companies
Act, L.R.Q. c. 38 and the enactment of legislation relating to unincorporated associations,
Crown corporations and producer-owned agricultural marketing boards.
” Some writers suggest that an even more elaborate migration, involving even objects in the
natural environment, should take place. They argue, in essence, that to date the concept of
person has been stultified because it is limited only to “Contemporary Normal Proximate
Persons”. See C.D. Stone, “Should Trees Have Standing? Revisited: How Far Will Law and
Morals Reach: A Pluralist Perspective” (1985) 59 S. Cal. L. Rev. 1.
12The only major codal amendments to the law of property have been the insertion into
Book Two of a chapter on co-ownership by declaration (condominiums) (art. 441bff. C.C.L.C.),
the addition of non-possessory pledges to the titles of Book Three relating to security on
property, amendments to the law of privileges, including a reformulation of the rules relating
to construction privileges, and the closer regulation of creditors attempting to realize upon
their security by means of hypothecary action (art. 1202ff. C.C.L.C.) or giving in payment
clause (art. 1040aff. C.C.L.C.).
McGILL LAW JOURNAL
[Vol. 31
the present rules governing property rights issued. Despite the Code’s gen-
erally illiberal, hierarchical and confessional underpinnings, 13 it displays in
its theory of contractual obligations several features more consistent with
principles of market capitalism.’ 4 The legal distinctions and remedies called
forth by nineteenth-century economic liberalism were, however, only emer-
gent in Book Two of the 1866 Codification.’ 5 Not surprisingly, therefore,
the eclipse of the Code is most evident in its theory of proprietary rights.’ 6
In keeping with the twentieth century’s preoccupation with persons,
much modern political and social philosophy has considered the meaning
of property only from the perspective of its titulary. Theorists have often
conflated the concepts of property and private property, and have been
primarily concerned with identifying the legal entities entitled to claim rights
in property. In so doing they seek to establish, and justify, limitations upon
the power of the state to interfere with those rights.’ 7 For this reason, the-
oretical reconceptualizations of the categories “persons” and “property”
tend to emphasize boundary shifts rather than the changing internal dimen-
sions of property rights themselves. Thus, most recent legal theory and law
13For a discussion, see M. Caron, “De la physionomie, de l’6volution et de l’avenir du Code
civil” in J. Boucher & A. Morel, eds, Livre du centenaire du Code civil: Le droll dans la vie
familiale, vol. I (Montreal: Presses de l’Universit6 de Montreal, 1970) 3 at I Off.
‘4Some of the more important features of this perspective are the suppression of lesion as
a general ground of nullity of contracts (art. 1012 C.C.L.C.), the adoption of the principle of
consensualism in contracts for the alienation of a thing certain (arts 1025 and 1472 C.C.L.C.),
and the foreseeability limitation on contract damages (arts 1074-1075 C.C.L.C.).
‘5Such a conclusion derives as much from what the Code does not contain as from its actual
provisions. Nevertheless, some articles explicitly reveal this orientation. The rules of accession,
specification and confusion (arts 429-441 C.C.L.C.), for example, rest on an artisanal rather
than on a commercial conception of manufacturing. Also, the preoccupation with immoveables
suggests an agrarian rather than an industrial economy.
16See M. Pourcelet, “L2’volution du droit de propri6t6 depuis 1866” in J. Boucher & A.
Morel, eds, Livre du centenaire du Code civil: Le droit dans la vie &conomico-sociale, vol. 2
(Montreal: Presses de l’Universit6 de MontrMl, 1970) 3. For a like assessment of the property
rules of the Code Napoleon, see B. Terrat, “Du regime de la Propri6t6 dans le Code civil” in
Le Code civil 1804-1904: Livre du centenaire, vol. 1 (Paris: Socit6 d’6tudes l6gislatives, 1904)
329.
t7Typical of modem efforts in this direction have been J. Rawls, A Theory of Justice (Cam-
bridge, Mass.: Belknap Press, 1971); R. Nozick, Anarchy, State and Utopia (New York: Basic
Books, 1974); and EA. Hayek, Law, Legislation and Liberty: Rule and Order, vol. 1 (Chicago:
University of Chicago Press, 1973); EA. Hayek, Law, Legislation and Liberty: The Mirage of
Social Justice, vol. 2 (Chicago: University of Chicago Press, 1976); EA. Hayek, Law, Legislation
and Liberty: The Political Order of a Free People, vol. 3 (Chicago: University of Chicago Press,
1979). But compare J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press,
1980); and M.J. Sandel, Liberalism and the Limits ofJustice (Cambridge: Cambridge University
Press, 1982). Unfortunately, in each of these studies (whether libertarian or communitarian),
the concept of property is merely asserted and a rather elementary interpretation of the pre-
rogatives of ownership is offered.
1986]
ENFORCING RIGHTS IN MOVEABLES
reform in Quebec have been directed to redefining legal personality rather
than elaborating a new theory of property.’ 8
3. Scope of This Study – This study focuses upon a small part of the law
of property –
remedies for vindicating rights in corporeal moveables. In
substance it reviews how the action in revendication and its surrogates, the
personal actions in specific performance of a contract and in restitution of
an object, the attachment in revendication, the opposition to withdraw from
seizure, and self-help remedies such as non-judicial recapture may be deployed
today to protect diverse rights in or upon corporeal moveables. More impor-
tantly, however, it illustrates how changing conceptions of the nature of,
and the economic function of, corporeal moveables have challenged several
of the basic principles enshrined in the 1866 Code, and have induced courts
to develop new applications for traditional remedies. For this reason the
study can also be seen as a preliminary inquiry into non-legislative law
reform in codified jurisdictions. 19
Such an inquiry also demands a review of doctrinal responses to legal
change. However, in order to appreciate the threat that incremental judicial
and practice-driven law reform poses for property theory in Quebec, it is
necessary to review, at least summarily, both the fundamental property con-
cepts reflected in the Civil Code, and the underlying remedial principles of
the Code of Civil Procedure. After all, it is the inherited categories of the
law of property which initially control discourse about the kinds of legally
protected rights and prerogatives which may be claimed in respect of cor-
poreal objects. 20 In addition, because the civil law is, in overall orientation,
‘5This trend is best illustrated in the final report of the Draft Civil Code, supra, note 9 at
xxix-xxxii. Apart from proposing a new regime of security on moveable property the Draft
Civil Code makes no attempt to accommodate developments in the field of mercantile law.
For another reflection of this tendency, see Codification: Valeurs et langage: Actes du Colloque
international de droit civil compar6 (Quebec: Service des Comit~s du Conseil de la langue
franaise, 1985) in which four of six workshops were devoted to the law of persons, two of six
to the law of obligations and none to the law of property. For pioneering attempts to restate
a theory of private property for the late twentieth century elsewhere, see C.A. Reich, “The
New Property” (1964) 73 Yale L.J. 733; M.P. Catala, “La transformation du patrimoine dans
le droit civil moderne” (1966) 64 Rev. trim. dr. cir. 185; and C.B. Macpherson, “Liberal-
Democracy and Property” in Macpherson, supra, note 8, 199.
19Two civil law theories of legal change which have strongly influenced the thesis of this
essay are those of Karl Renner and Alan Watson: see K. Renner, The Institutions of Private
Law and Their Social Functions (London: Routledge & Kegan Paul, 1949); A. Watson, Society
and Legal Change (Edinburgh: Scottish Academic Press, 1977); and A. Watson, Sources of
Law, Legal Change, and Ambiguity (Philadelphia: University of Pennsylvania Press, 1984).
20The influence of atavistic reflexes to supposedly fundamental dogmas as a means of dis-
posing of “recalcitrant data” is well-known in the sciences. See M. Polanyi, Personal Knowledge:
Towards a Post-Critical Philosophy (New York. Harper & Row, 1964); T.S. Kuhn, The Structure
ofScientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970); and K.R. Popper,
Conjectures and Refutations: The Growth of Scientific Knowledge, 3d ed. (London: Routledge
REVUE DE DROIT DE McGILL
[Vol. 31
a law of rights and not a law of remedies, these categories largely control
the mechanisms for obtaining judicial vindication of property rights. 21
A. Property Concepts of the Civil Code
4. Classifying Objects of Property – Any western legal system builds its
concept of property on two main foundations: a taxonomy of objects of
property and a theory of property rights. True to its orientation towards the
physical world, the 1866 Code appears to consider the former more impor-
tant than the latter.22 Moreover, the codal property regime calls forth a series
of distinctions relating primarily to the physical characteristics of various,
objects of property, rather than to their functional or economic attributes.
While classical theory would differentiate objects of property along half-a-
dozen main axes, 23 the Civil Code of Lower Canada promotes one of these
to pre-eminence. This distinction, set out in article 374 C.C.L.C., is that
between moveable and immoveable property.24 Given the era in which the
Code was drafted (and the mission of the Codifiers simply to codify existing
law), a corollary of this distinction was the theoretical and textual unim-
portance of the former: res mobiles, res viles.25 Few rules of the Code are
& Kegan Paul, 1969). For an application of these insights to law see R.W. Gordon, “Historicism
in Legal Scholarship” (1981) 90 Yale L.J. 1017; C. Atias, Epistimologiejuridique (Paris: Presses
universitaires de France, 1985); and J.-G. Belley, “La th~orie g6n6rale des contrats. Pour sortir
du dogmatisme” (1985) 26 C. de D. 1045.
21See, generally, J. Ghestin & G. Goubeaux, Trait de droit civil: Introduction g~ngrale, 2d
ed. (Pads: L.G.D.J., 1983) nos 517-32 and nos 549-62; J.H. Merryman, The CivilLaw Tradition:
An Introduction to the Legal Systems of Western Europe and Latin America, 2d ed. (Stanford,
Calif.: Stanford University Press, 1985) c. 16; A. Watson, The Making ofthe Civil Law (Cam-
bridge, Mass.: Harvard University Press, 1981) c. 10. A particularly powerful statement of the
relationship of legal right and judicial remedy may be found in H. Motulsky, “Le drojt subjectif
et l’action en justice” (1964) 9 Arch. phil. dr. 215.
22Modern theorists note, however, that the key concepts of the civil law are not derived from
a theory about objects of property, but rather from a theory about property rights. See Ghestin
& Goubeaux, ibid., nos 194-208; C. Atias, Droit civil:Les biens, t. I (Padis: Librairies techniques,
1980) no. 36ff.; C. Larroumet, Droit civil, t. 2 (Paris: Economica, 1980) nos 11-27.
23These include distinctions between moveables and immoveables, corporeals and incor-
poreals, fungibles and non-fungibles, consumables and non-consumables, private domain and
public domain, and res communes and res nullius. See H., L. & J. Mazeaud, Lecons de droit
civil, t. 2, vol. 2, 6th ed. by E Gianviti (Paris: Montchrestien, 1984) nos 1285-91; G. Marty &
P. Raynaud, Droit civil: Les biens, 2d ed. by P. Raynaud (Paris: Sirey, 1980) nos 2-11; P.
Martineau, Les biens, 5th ed. (Montr6al: Th6mis, 1979) at 1-27.
24The first article of Book Two, art. 374 C.C.L.C., provides: “All property, incorporeal as
well as corporeal, is moveable or immoveable.”
25See W.M. Marler, The Law of Real Property: Quebec, rev. ed. by G.C. Marler (Toronto:
Burroughs, 1932) nos 1-25. This theme can be seen, inter alia, in the rules relating to the sale
of property of incapables (arts 97, 293 and 320 C.C.L.C.), gifts (art. 776 C.C.L.C.), prescription
(arts 2251 and 2268 C.C.L.C.), and civil procedure (art. 572 C.C.P). See also the different
treatment of immoveables and moveables in the legal rules relating to the conflict of laws (art.
1986]
ENFORCING RIGHTS IN MOVEABLES
worked out by reference to, or even with a view to, particularities of the
law of moveables.26
A further, but subsidiary, distinction adverted to in article 374 C.C.L.C.
is between corporeal and incorporeal property. Once again, most of the rules
of the Code relating to the allocation and transfer of property are developed
corporeals. 27 The reason for
on the basis of the more palpable category –
this is not difficult to see. Because traditional theory collapses the distinction
between the right of ownership and the thing owned it follows that only
tangible things (corporeals) may be owned, and that ownership is the only
corporeal right. Intangibles (rights of action, debts and claims) must be
understood merely as various species of rights vesting in their titulary. Again,
all lesser rights in (jus in re aliena), or in respect of (jus ad rem), tangible
objects are held to be incorporeal and cannot be owned.28
Even though the legal regime of corporeal moveables constitutes only
a minor part of the law of property in Quebec, it raises interesting problems
of definition. These relate both to the concept of a moveable –
notably
when moveables are purportedly immobilized and when two or more move-
ables are united by accession or are confused –
and to the concept of
corporeal property – notably when negotiable instruments, rights of action,
claims, personal rights relating to things, and dismemberments of ownership
are in issue. These problems which are seemingly at the margin of definition
are nevertheless not trivial. They reflect the pressure to dissociate more
clearly rights in, or in respect of, property from objects of property; and
their increased importance is just one symptom of the transformation of
property in the late twentieth century.29
6 C.C.L.C.), hypothecation (art. 2022 C.C.L.C.), accession (arts 414-441a C.C.L.C.), successions
(arts 725-734 C.C.L.C.), substitutions (art. 931ff. C.C.L.C.), powers of testamentary executors
(art. 918 C.C.L.C.), powers of minors and tutors (arts 293, 297, 320 and 322 C.C.L.C.), matri-
monial regimes (art. 449 C.C.Q.), lease (art. 1634ff. C.C.L.C.), dismemberments of property
(arts 487 and 567 C.C.L.C.), registration (art. .2082ff. C.C.L.C.), and means for recovery of
possession (arts 770-772 C.C.R).
26The rules relating to usufruct, the right of use, substitutions, promise of sale, lease and
registration, for example – while capable of application to moveables –
are drafted primarily
with immoveables in view. Property scholarship in Quebec is also dominated by works focusing
on immoveables. See, e.g., Marler, ibid.; and Martineau, supra, note 23.
27For example, the treatment of the obligation to give in Book Three seems to presuppose
corporeal things. The only explicit regulation of transactions relating to incorporeals as such
is found in arts 1570-1578 C.C.L.C.
civil canadien, t. 2 (Montr6al: Th6oret, 1896) at 395-96.
28Catala, supra, note 18, no. 20ff.; Martineau, supra, note 23 at 2-3; P-B. Mignault, Le droit
29For a recent examination of the relationship between characterization of object and class-
ification of right see E Hage-Chahine, “Essai d’une nouvelle classification des droits priv6s”
[1982] Rev. trim. dr. civ. 705 at 706-9. While the theoretical usefulness of this new scheme is
uncertain, it does have the merit of signalling the frequent confusion of object and right in
civil law theory.
McGILL LAW JOURNAL
[Vol. 31
5. Classifying Property Rights – While the distinctions between moveables
and immoveables and between corporeals and incorporeals typify how the
civil law categorizes objects of property, other concepts constitute in fact
the general theory of property rights. 30 Three of these bear directly on the
availability of remedies for vindicating rights in corporeal moveables. Together
they define and classify the types of legal relationship between person and
object which are judicially enforceable in the civil law. 31
A first basic concept derives from a notion which, paradoxically, does
not appear in the Civil Code itself. The whole of a person’s economic hold-
ings or assets (patrimony) 32 is, in theory, divisible into rights bearing directly
upon objects (real rights or jus in re) including dismemberments of own-
ership (jus in re aliena), and claims against a person (personal rights or jus
in persona) including claims in respect of objects mediated by persons (jus
ad rem).33 In consequence, ultimate legal responsibility for ensuring the
enjoyment of all rights relating to property rests in the owner.34
Second, the concept of property is built upon the idea that, at any one
time, there must be one person, and only one person, who is the owner of
30See, generally, le Marquis de Vareilles-Sommi~res, “La definition et la notion juridique de
(1905) 4 Rev. trim. dr. civ. 443; Mazeaud, supra, note 23, nos 1292-1473; Marty
la propri6t”
& Raynaud, supra, note 23, nos 12-56; Mignault, supra, note 28 at 397-98; A. Montpetit & G.
Taillefer, Traitj de droit civil du Quebec, t. 3 (Montreal: Wilson & Lafleur, 1945) at 15-18. For
a prcis of the concept of ownership in France, see M. Vanel, “ProprirtV” in Encyclopdie
juridique: Repertoire de droit civil, 2d ed. (Paris: Dalloz, 1975) [hereinafter Encyclopedie
Dalloz]; and for a study of possession, see R. Rodi~re, “Possession” in Encyclopedie Dalloz,
supra.
3’For a comparative study of civil law and common law property regimes, see L. Jansse, La
proprit6, le regime des biens dans les civilisations occidentales (1953); EH. Lawson, A Common
Lawyer Looks at the Civil Law (Ann Arbor, Mich.: University of Michigan Law School, 1953)
at 108ff.
320n various classifications of legal rights including the distinction between patrimonial and
extrapatrimonial rights, see Ghestin & Goubeaux, supra, note 21, nos 194-224. For a detailed
discussion of the concept of patrimony, see C. Aubry & C. Rau, Droit civilfrancais, t. 6, 4th
ed. (Paris: L.G.D.J., 1873) no. 573ff. who derived the idea from C.S. Zachariae, Cours de droit
civilfrancais, vol. 4 (Strasbourg: Lagier, 1844) no. 573ff. See also M.N. Mevorach, “Le patri-
moine” (1936) 35 Rev. trim. dr. civ. 811.
33Nevertheless, the distinction between real and personal rights, and even the concept of real
rights less than ownership, is difficult to apply with precision when it is intended to exhaust
the categories of rights known to the civil law. See S. Ginossar, Droit reel, propriJt6 et creance;
elaboration d’un systime rationnel des droits patrimoniaux (Paris: R. Pichon et R. Durand-
Auzias, 1960); J. Dabin, “Une nouvelle definition du droit rdel” (1962) 60 Rev. trim. dr. civ.
20; S. Ginossar, “Pour une meilleure definition du droit reel et du droit personnel” (1962) 60
Rev. trim. dr. civ. 573.
34Exceptionally, where an owner has dismembered his right by granting a jus in re aliena or
has granted an accessory real right, the titulary of the dismemberment or accessory real right
may also avail himself directly of a judicial recourse to vindicate that right.
1986]
ENFORCING RIGHTS IN MOVEABLES
a given object of property.35 Hence, it is claimed, the civil law knows neither
a theory of estates, nor more generally, the distinction between legal and
equitable title for dividing the right of ownership. 36 Actions to protect prop-
erty rights therefore focus on identifying the one individual who, at the
relevant moment, is owner.37
Third, because the basic structure of property rights for moveables and
immoveables is identical, it follows that moveables can be owned. 38 This
permits, at least theoretically, distinctions to be drawn, on the one hand,
between ownership and possession, and on the other hand, between possess-
ion and the right to physical control of corporeal moveables.39 It also sug-
gests the need for remedies vindicating both possession and ownership of
moveables. 40
These three principles have long formed the basis of property theory
in the civil law. Nevertheless, the changing landscape of objects of property
over the past one hundred years has changed the way in which patrimonial
rights are deployed, and has highlighted certain limitations of the traditional
concepts.41 More detailed analysis of these concepts in a modem context
ought, therefore, to reveal where the demands of current practice are most
likely to have overtaken them.
1. Real Rights and Personal Rights in Corporeal Moveables
In characterizing all patri-
6. Patrimony and Proprietary (Real) Rights –
monial rights relating to corporeal moveables as real or personal rights,
classical theory seeks to distinguish proprietary from non-proprietary rights.4 2
35This notion is reflected in the expression “absolutisme individuel”: see Vareilles-Som-
mitres, supra, note 30.
36See P Landry, De l’utilit socialede la propri~t individuelle(1901); F Laurent, L’apparence
dans le probl~me des qualifications juridiques (thesis, Caan, 1931) [unpublished]; R. Jambu-
Merlin, “Essai sur la r~troactivit6 dans les actes juridiques” (1948) 46 Rev. trim. dr. civ. 271.
37This point is developed in detail in M. Hourcade, “Le possessoire et le provisoire”
S.1963.Chron.41.
38See Marty & Raynaud, supra, note 23, nos 407-18. This is not to say that the Code does
not elaborate several technical differences in the regimes ofimmoveable and moveable property.
See examples cited, supra, note 25.
39But other features of the law, including variants on the rule “en fait de meubles, possession
vaut titre”, undermine the distinction over a wide variety of cases. The locus classicus is R.
Saleilles, De la Possession des meubles; 6tudes de droit allemand etfranais (thesis, Paris, 1907).
40For an early suggestion to this effect, see C.J. Appleton, Essai sur le fondement de la
protection possessoire (thesis, Lyon, 1893). For a discussion of various actions to defend own-
ership and possession of immoveables, see Marty & Raynaud, supra, note 23, nos 204-30.
41See, for a general continental perspective, the study by A. Rouast, “E’volution du droit
de proprit6 en France” (1947) 2 Tray. Assoc. Henri Capitant 110. Unfortunately, no study of
comparable scope exists in Quebec.
42This distinction remains fundamental notwithstanding that it may not be exhaustive of all
REVUE DE DROIT DE McGILL
[Vol. 31
Yet no text of the Civil Code of Lower Canada expressly reflects this dis-
tinction and its general tenor does not even emerge from article 405 C.C.L.C.,
which purports to set out the panoply of legally recognized property rights.
Article 405 C.C.L.C. provides:
A person may have on property either a right of ownership, or a simple right
of enjoyment, or a servitude to exercise.
From this elaboration, one might well conclude that the law distinguishes
only three types of real rights in property: ownership, simple rights of enjoy-
ment, and real servitudes. 43 Yet this trifurcation is incomplete in that it does
not advert to accessory real rights in property (for example, the hypothec
and the pledge), 44 and because it does not mention other rights relating to
corporeal property.45 More particularly, quite apart from the various types
of real rights set out in article 405 C.C.L.C. there is an unlimited variety
of personal rights which may bear on corporeal moveables. These latter jus
ad rem may be categorized according to the types of obligations elaborated
in article 1058 C.C.L.C., namely to give, to do, or not to do.
7. Enumeration and Characteristics of Real Rights – Classical theorists
identify two main attributes of real rights: they may be claimed only upon
things (corporeal property), and they are directly opposable to third parties.4 6
Ownership is the primordial real right; but each of its dismemberments (us
in re aliena) is also a real right. A taxonomy of rights in, or in respect of,
patrimonial rights. For example, modem writers distinguish other specialized types of rights,
such as certain rights of administration (those exercised by testamentary executors and trustees),
intellectual rights (copyright, patent, trademark), contingent rights (rights of pre-emption and
of option), future rights (rights of presumptive heirs to their intestate inheritance, or rights
under an irrevocable donation mortis causa), and perhaps licences and permits. For a brief
discussion of these various other classifications, see Ghestin & Goubeaux, supra, note 21, nos
213-22.
43Mignault discusses these rights, supra, note 28 at 389-94.
44See art. 2016 C.C.L.C.: “Hypothec is a real right upon immoveables …
45See Mazeaud, supra, note 23, nos 1285-87 for an enumeration of other rights in corporeal
property.
46See Ghestin & Goubeaux, supra, note 21, no. 213. See also Mignault, supra, note 28 at
389; J.-L. Baudouin, Les obligations, 2d ed. (Cowansville, Que: Yvon Blais, 1983) nos 8-9. It
should be noted that these two attributes are possessed by all real rights, but they are not in
themselves sufficient to identify a real right. The right of retention and the right of seizin, for
example, seem to share both, but are not real rights. See E Frenette, Le droit de retention
(Quebec: Chambre des Notaires, 1979) nos 53-57.
Moreover, some authors, notably Mignault, supra, note 28 at 392, and Baudouin, supra,
assert a third characteristic of real rights, namely, that the category of real rights is closed.
Others, notably Marler, supra, note 25 at 67, suggest that new real rights may be established
by statute and by juridical act.
1986]
ENFORCING RIGHTS IN MOVEABLES
as dismemberments or principal real rights –
corporeal moveable property, therefore, would comprise the following mem-
bers. Codal real rights would include first, ownership (article 406 C.C.L.C.);
second –
usufruct (article
443 C.C.L.C.) and use (paragraph 487(1) C.C.L.C.); and third –
as an
accessory real right – pledge (article 1966 C. C.L.C.).47 Of course, additional
real rights are implicit in the Code,48 while still others have been created
by statute,49 and by juridical act (either contract or will).50 All other persons
claiming a legally recognized right in relation to corporeal moveable prop-
erty are vested with only a personal right in relation to an object.5’
It follows that in classical theory only a titulary of real rights is permitted
to exercise his prerogative directly upon a corporeal moveable. He has an
action which may be taken in his own name to vindicate his own right.
That is, only real rights give rise to an action to defend possession. 52 A
person who does not have an immediate legal relationship with an object,
whether or not he actually has physical control, may not claim rights in a
corporeal moveable which have an independent footing and cannot defend
his right to enjoyment of that object (including its physical detention) directly.
47Emphyteusis (art. 567ff. C.C.L.C.), habitation (art. 487(2) C.C.L.C.) and hypothec (art.
2016 C.C.L.C.) are also real rights, but, in principle, may be created only upon immoveables.
It is difficult to imagine real servitudes in moveables.
48These include, notably, the right of superficies and the right to cut wood. Of course, in
49See, e.g., Lands and Forests Act, R.S.Q. c. T-9; MiningAct, R.S.Q. c. M-13; BankAct (being
part I of s. 2 of Banks and Banking Law Revision Act, 1980, S.C. 1980-81-82-83, c. 40) s. 178;
and Act Respecting Bills of Lading, Receipts and Transfers of Property in Stock, R.S.Q. 1977,
c. C-53, as am. Act Respecting the Transfer of Property in Stock, S.Q. 1982, c. 55.
classical theory neither of these rights can apply to moveables.
50See Matamajaw Salmon Club v. Duchaine (1921), [1921] 2 A.C. 426 (P.C.); Boucher v. R.
(1981), 22 R.PR. 310 (EC.T.D.), aff’d (1984), 33 R.P.R. 308 (EC.A.D.). A complete theory of
such rights is set out in M. Cantin Cumyn, “De l’existence et du regime juridique des droits
reels de jouissance innom~s: Essai sur l’num~ration limitative des droits reels” (1986) 46 R.
du B. 3. Professor Cantin Cumyn identifies fishing and hunting rights, rights of passage, rights
to draw water and so on as examples of contractual real rights. She notes, however, that it is
difficult to conceive of examples of purely contractual real rights in moveables.
5’The other major types of relation between person and object regulated by the Code, each
of which does not involve a real right, are those of depositary (art. 1794 C.C.L.C.), unpaid
vendor (arts 1474 and 1998-2000 C.C.L.C.), mandatary (art. 1701 C.C.L.C.), testamentary
executor (art. 918 C.C.L.C.), trustee (art. 981b C.C.L.C.), borrower for use (art. 1762 C.C.L.C.),
lessee (art. 1600 C.C.L.C.), negotiorum gestor (art. 1043 C.C.L.C.), retention claimant (e.g.,
arts 441, 1679 and 1916a C.C.L.C.), sequestrator (art. 747 C.C.R), tutor (art. 249 C.C.L.C.),
curator (art. 337 C.C.L.C.), adviser (art. 349 C.C.L.C.), and holder of an object paid under
mistake offact or law (art. 1047 C.C.L.C.). Fora general listing see Quebec, Civil Code Revision
Office, Report on the Civil Code of Quebec: Commentaries, vol. 2, t. I (Quebec: Editeur officiel,
1978) at 372-75 [hereinafter Commentaries].
52An excellent analysis of this attribute of real rights is contained in J. Derrupp6, La nature
juridique du droit du preneur 4 bail et la distinction des droits reels et des droits de crtance
(Paris: Dalloz, 1952), who concludes, in order to explain the extensive prerogatives of the
preneur d bail, that the right of the lessee is a real right.
McGILL LAW JOURNAL
[Vol. 31
Rather, he must assert his rights by means of a contractual or quasi-con-
tractual claim against one or more individuals vested with a real right in
that corporeal moveable. 53 For this reason, the law has encountered diff-
iculties in giving adequate protection to a mere holder of a corporeal moveable.
8. Enhancing the Reality of Personal Rights – Because the functional pre-
rogatives of property are vested either in the owner or in titularies of a
limited number of dismemberments of ownership, the law systematically
avoids an inefficient multiplication of plaintiffs in any action to recover
corporeal moveables wrongfully held by a third party. Unfortunately, how-
ever, this remedial schema is not sufficiently supple to respond to the needs
of modem commercial practice. Over the past fifty years, the relative eco-
nomic importance of moveables has increased dramatically. Complex man-
ufacturing processes typically involve a panoply of suppliers, financers and
buyers each desiring to maintain some type of direct right in corporeal
property. Moreover, to accommodate the differing tax treatment of own-
ership and use, several modified nominate contractual forms have devel-
oped –
to
achieve an efficient division of capital and rent. Not surprisingly, therefore,
in order to facilitate the recovery of valuable and easily transportable objects,
legislatures54 and courts55 have been asked to attribute a quality of reality
to what were previously conceived of as purely personal rights.56
in particular, the deployment of leases and loan agreements –
2. Ownership of Corporeal Moveables
9. Attributes of Ownership –
From the time of its Romanist origins, the
civil law concept of ownership has, by and large, maintained a coherent
theoretical structure. 57 In Quebec, article 406 C.C.L.C. sets out the principal
characteristics of ownership. It states:
Ownership is the right of enjoying and of disposing of things in the most
absolute manner, provided that no use be made of them which is prohibited
by law or by regulations.
53This individual must then defend his enjoyment. See Mazeaud, supra, note 23, nos 1627-
32.
54See, e.g., the prerogatives now attributed to the lessee under a registered lease of an immove-
able dwelling (art. 1657ff. C.C.L.C.) and under a financial lease (art. 1603 C.C.L.C.).
55See, with respect to the loan contract, Kirouac v. Ruel (1941), 70 B.R. 350 and, with respect
to ordinary leases, Discothque & GolfLafontaine Inc. v. Lussier (1980), [1980] C.S. 166 [here-
inafter Lussier].
56This attribution reflects, at the practical level, the argument raised in the “objectivist”
critique of the distinction between real and personal rights. This critique views even indeter-
minate personal rights as direct rights in the property of a debtor. See R. Saleilles, tlude sur
la th5orieghnrale de l”obligation; d”aprs lepremierprojet de Code civil pour lempire allemand,
3d ed. (Paris: Pichon, 1925).
57For an historical overview, see G. Lepointe, Droit romain et ancien droitfrancais (Biens)
(Paris: Dalloz, 1958).
1986]
ENFORCING RIGHTS IN MOVEABLES
From this definition and related codal texts, 58 commentators have elabo-
rated a theory of ownership comprising three main attributes. Ownership
is characterized as absolute, exclusive and perpetual. 59
Over the past one thousand years, however, the consequences attaching
to the second of these attributes, exclusivity, have, in effect, differentiated
the civil law concept of ownership from concepts of ownership held in other
legal traditions. 60 As an exclusive right ownership is said, first, to be uni-
versally opposable, and second, to be unitary (or individual).61 Latterly, this
notion has been seen to possess two features. While even the Roman law
of property presupposed an intellectual unity of ownership, since the French
Revolution, the civil law has also been grounded in a material unity of
ownership.62
10. Limits on Unitary Ownership – Despite its general tendency towards
a conception of exclusive and unitary ownership, the civil law has always
been required to accommodate notions of joint (i.e., materially separated)
and plural (i.e., intellectually separated) ownership. 63 In its material sense,
58See, notably, arts 405 and 407 C.C.L.C. concerning the right of ownership specifically, and
arts 399 and 689 C.C.L.C. concerning all patrimonial rights.
59See Mignault, supra, note 28 at 464; Montpetit & Taillefer, supra, note 30 at 100; Vanel,
supra, note 30, passim. For a recent restatement see Quebec, Civil Code Revision Office,
Committee on the Law on Property, Report on Property (Montreal: n.p., 1975); but see E
Frenette, “Commentaires sur le rapport de ‘O.R.C.C. sur les biens” (1976) 17 C. de D. 991.
Mazeaud, supra, note 23, no. 1305, adopts a five-fold inventory in which ownership is seen
as exclusive, individual, total, sovereign and perpetual. This is not, however, a new conception.
The first two features are united in classical theory under the rubric “exclusive” while the
second two comprise the rubric “absolute”.
6That is, while the concept of absoluteness is the distinguishing characteristic of ownership
within the civil law (by contrast with jus in re aliena or with jus ad rem), as between different
legal traditions the distinctive feature of the civil law is its notion of”exclusivit6 individuelle”
in ownership. See Jansse, supra, note 31; Marty & Raynaud, supra, note 23, nos 32-37; and
Vane], ibid., no. 117.
61See Mazeaud, supra, note 23, nos 1307-31; Marty & Raynaud, ibid., nos 57-61 and nos
620n this second point, see Marty & Raynaud, ibid., nos 32-37; and Vanel, supra, note 30,
234-51.
no. 117 where she states:
Le code de 1804 6tait hostile A ]a propri~t6 collective, il estimait qu’il y a 1A un
danger politique, en raison de ]a puissance de groupements, et un danger 6cono-
mique, l’exploitation par un groupe d’individus paraissant plus n~gligente que celle
assur~e par un individu.
But compare X. Martin, “De l’insensibilit6 des r~dacteurs du Code civil a ‘altruisme” (1982)
59 Rev. hist. dr. frangais et 6tranger 589. The law of Quebec never displayed quite the same
hostility to “la propri~t6 collective” and several features of the 1866 Code derogate from the
Code Napolon in this respect: see, e.g., art. 689(2) C.C.L.C., and the retention ofemphyteusis
and fiduciary substitutions.
630f course, exclusivity has never meant that an owner might not grant competing rights in
his property (dismemberments of ownership or even personal rights) which may severely limit
his enjoyment. See supra, no. 6ff. of this text. In principle, the only other limits on exclusivity
arise from cases of necessity: see Vanel, ibid., nos 127-30.
REVUE DE DROIT DE McGILL
[Vol. 31
unitary ownership is limited by the possibility of undivided co-ownership.
However, while the right of ownership as such remains perpetual, the state
of undivided co-ownership, 64 especially insofar as moveables are con-
cerned, 65 has been conceived as temporary.66 Moreover, the material dimen-
sion to the theory of unitary ownership has, in the twentieth century, escaped
frontal assault primarily because of evolutions in the law of persons. Limited
partnerships, corporations and foundations materially fraction ownership
in exactly the fashion feared by the French codifiers by permitting legal
personality to be internally sub-divided. 67
By contrast, in its intellectual sense, the concept of unitary ownership
has revealed major limitations. As noted, regardless of whether competing
claims in an object are notionally concurrent, or notionally successive, class-
ical theory requires that they be understood as generating only one right of
ownership at a time. Yet, in respect of concurrent rights6 8 there are in Quebec
64The most common forms arise from forced indivision of immoveables (common walls,
hedges and ditches under arts 510-531 C.C.L.C.) and from co-ownership of immoveables by
declaration (arts 441b-442p C.C.L.C.), and the now-abolished “coproprift6 par 6tages” (art.
521 C.C.L.C.). Other forms ofjoint ownership may arise by law or as a result of a contractual
undertaking. Rules relating to household furniture and to certain matrimonial regimes (arts
497 and 520 C.CQ.), successions (arts 689-753 C.C.L.C.), the finding of treasure (art. 586
C.C.L.C.) and accession to moveables (arts 436, 437(2) and 439 C.C.L.C.) are examples of the
former. Partnerships (arts 1897-1900 C.C.L.C.) reflect the latter.
651n effect, the matrimonial regimes of community of property and, to a lesser extent, part-
nership of acquests constitute the only meaningful exception to the principle as concerns
moveables. But even this exception has been eroded now that spouses may, without proceeding
to a separation from bed and board or a divorce, contractually modify or dissolve their matri-
monial regime, or apply to have the court do so: see arts 470 and 521ff. C.C.Q.
66See art. 689 C.C.L.C. But compare E Delhay, La naturejuridique de l’indivision (Paris:
L.G.D.J., 1968) and M. Deschamps, “Vers une approche renouvelfe de l’indivision” (1984)
29 McGill L.J. 215. While co-ownership by declaration may seem to be an important exception,
arts 441b, 441c and 441e C.C.L.C. clearly illustrate that it is in essence unitary ownership onto
which legally undivided (but economically divisible) co-ownership of common areas is grafted.
67The techniques are various. In some partnerships a semi-distinct legal personality is created.
Corporations and foundations have distinct patrimonies, but each share reflects a percentage
right in the corporation (if not a right to an aliquot portion of the corporation’s patrimony).
6sWhether these rights are asserted in or on property, and no matter how significant, they
are not rights of ownership. This is true regardless of their origin. Some real rights arise by
law (e.g., legal servitudes under art. 510ff. C.C.L.C. and judicial and legal hypothecs under arts
2024-2036 C.C.L.C.); some by contract (e.g., when an owner creates a right of habitation, use,
usufruct, emphyteusis, hypothec or pledge upon his property); and some by a relationship of
fact (e.g., the right of a possessor in good faith to claim the fruits produced during his possession
under art. 411 C.C.L.C.).
Again, some personal rights arise by law (e.g., the right to seize before judgment the vehicle
which causes a person damage (art. 734(3) C.C.R); or by instrument (e.g., the panoply of
personal rights created by contract or by other juridical act such as a will); or by a relationship
of fact (e.g., the negotiorum gestor under art. 1043 C.CL.C., retention claimants asserting rights
against third party owners and holders of an object paid under mistake of fact or law under
1986]
ENFORCING RIGHTS IN MOVEABLES
certain indicia of plural ownership 69 and, on at least one occasion, a court
seems even to have accepted the existence of a theory of estates in land in
Quebec law.70 There are similar reflections of plural ownership in various
types of notionally successive (but functionally concurrent) ownership. Two
such instances –
are suggested by the Civil Code.71 Even though a donor or testator may,
under article 929 C.C.L.C., establish the potential for ownership in more
than one person by means of a fiduciary substitution, the Code presupposes
that, at any given time, there will be only one owner –
either the institute
or the substitute. 72 Likewise, traditional civil law theory denies the epithet
“owner” to any person in physical possession of property whose title is
substitutions and ownership affected with a modality –
art. 1047 C.C.L.C.).
Even the right of emphyteusis in immoveables, under which the emphyteutic lessee acquires
most of the economic utility of the immoveable, is not a concurrent, temporary right of own-
ership coexisting with that of the bare owner: see E Frenette, De l’emphyt~ose (Montreal: Wilson
& Lafleur, 1983) at 89ff.; J.-G. Cardinal, “La proprit6 immobilirre, ses d6membrements, ses
modalits” (1965) 67 R. du N. 323.
69The classic example of a codal right sometimes called “fiduciary ownership” is the trust
underart. 981aff. C.C.L.C.: see most recently Crown Trust Co. v. Higher(1975), [1977] 1 S.C.R.
418, 69 D.L.R. (3d) 404; Royal Trust Co. v. Tucker (1982), [1982] 1 S.C.R. 250, 40 N.R. 361;
and the symposium “ILaffaire ‘Tucker’ sous les feux du droit compar6” (1984) 15 R.D.U.S. 1.
For a general review of various explanations of this device, see Y. Caron, “The Trust in Quebec”
(1980) 25 McGill L.J. 421.
Examples of statutory rights sometimes characterized as “proprit sui generis” include the
trust deed under s. 28 of the Special Corporate Powers Act, R.S.Q. c. P-16. See Laliberta v.
LaRue (1930), [1931] S.C.R. 7, (sub nom. LafontaineApts v. Larue) [1931] 2 D.L.R. 12; and
the observations by Y. Caron, The Trust for Bondholders in the Province of Quebec (thesis,
Oxford University, 1964) [unpublished]. See also the documentary pledge under the Act Respect-
ing Bills of Lading, Receipts and Transfers of Property in Stock supra, note 49 and under s.
178 of the Bank Act, supra, note 49. See, finally, Banque Canadienne Nationale v. Lefaivre
(1950), [1951] B.R. 83, 32 C.B.R. 1; and the discussion by R.A. Macdonald, “Security Under
Section 178 of the Bank Act: A Civil Law Analysis” (1983) 43 R. du B. 1007 at 1009-28.
this possible recognition appears only in the judgment of the Privy Council.
70Matamajaw Salmon Club v. Duchaine, supra, note 50. It should be noted, however, that
71Other Code devices giving rise to notionally successive ownership are promises of sale, the
contractual institution (where the grantor appears to be “owner” for onerous alienations while
the grantee appears to be “owner” for gratuitous alienations), and the provisional possession
of heirs and legatees. In general, as with cases of possession animo domini prior to usucapio,
one is confronted with the problem of apparent ownership.
72Thus, while both the institute and the substitute are deemed to take their right of ownership
(or any of its dismemberments) directly from the grantor, they do so successively, not con-
currently. Until the substitution opens, the institute alone has the status of owner, even though
the substitute may take conservatory measures: see arts 944, 962 and 931 C.C.L.C. Once the
substitution opens, the substitute becomes owner and is deemed to have taken directly from
the grantor. For a detailed examination of the classical position, see M. Cantin Cumyn, Les
droits des beneficiaires d’un usufruit, d’une substitution et d’unefiducie (Montreal: Wilson &
Lafleur, 1980) nos 16-25 and 81-85.
McGILL LAW JOURNAL
[Vol. 31
deferred by a term 73 or suspended by a condition.74 Until the term expires,
or until the condition is realized, the only owner is the transferor, whose
rights are actual.75 Once again, the law has experienced difficulty in vesting
a titulary of future or eventual rights with the means to safeguard his interest
in a corporeal moveable.
11. Towards Plural Ownership – The notion of exclusivity is at the heart
of the owner-focused structure of proprietary remedies, even if its correlative
– unitary ownership –
seems inadequate when applied to corporeal move-
ables. 76 To begin with, as a result of codal and statutory rights which are
suggestive of plural ownership, courts have had to invent sui generis explan-
ations for unorthodox proprietary rights. Also, the increasing recourse to
forms of commercial transaction which use title to property as a security
device has led to the contractual dissociation of legal ownership from possession
of corporeal moveables. Hence, the law is under pressure to broaden its
range of directly protected rights in corporeals to include future ownership
rights emerging from present possession and to transform the remedial con-
sequences attaching to these rights.77
3. Detention and Possession
12. Legal Relationships and Relationships of Fact – To follow article 405
C.C.L.C. in acknowledging dismemberments of ownership, or article 1058
C.C.L.C. in admitting personal rights in respect of property, does not, how-
ever, exhaust the relationships which may exist between person and object
73Arts 1089-1092 C.C.L.C. See Mazeaud, supra, note 23, no. 1394.
74Arts 1079-1088 C.C.L.C. set out the rules respecting conditional obligations. For their
application to conditional ownership, see Mazeaud, ibid., nos 1395-1401; Marty & Raynaud,
supra, note 23, no. 46; and Vanel, supra, note 30, nos 140-41.
75However, the realization of the condition has a retroactive effect: see arts 1085 and 1088
C.C.L.C. The courts in Quebec have not always adopted a consistent view of conditional
ownership. Compare the notes of Barclay J. in Frechette v. Carribre Lumber Co. (1947), [1948]
B.R. 185 at 187-94 with the judgment in Montreal Trust v. Roadrunner Jeans (1982), [1983]
C.S. 245, 27 R.P.R. 216 and cases cited therein. See also Jambu-Merlin, supra, note 36. Both
the Civil Code (e.g. arts 1086 and 1087 C.C.L.C., which give conditional owners a right to take
conservatory measures, but which also impose upon them the risk of loss or detioration not
resulting from the fault of the prior owner) and the Code of Civil Procedure (e.g. arts 716, 717
and 734(5) C.C.P, which give the conditional secured creditor a right to be collocated on the
price of a judicial sale), suggest certain protections in the nature of ownership to merely con-
ditional creditors, especially where immoveable property is in issue.
76Vanel, supra, note 30, nos 11-17.
77See, e.g., Studebaker Corp. of Canada v. Glackmeyer (1928), 44 B.R. 216; and Laurentide
Finance Co. v. Paquette (1966), [1966] R.P 416 (Sup. Ct) for decisions protecting the rights of
conditional purchasers.
1986]
ENFORCING RIGHTS IN MOVEABLES
in the civil law. Two other relationships –
achieved legal recognition: detention and possession. 78
factual in character –
591
have
Detention 79 may be characterized as the physical holding of corporeal
property.80 It is the basic (and irreducible minimum) factual connection
between person and object. Possession, by contrast, arises when detention
is coupled with an intention to exercise rights in the object as owner or
other titulary of a real (by contrast with a personal) right. Article 2192
C.C.L.C. states:
Possession is the detention or enjoyment of a thing or of a right, which a person
holds or exercises himself, or which is held or exercised in his name by another.
In other words, possession comprises two elements: corpus and animus. The
intentional element, animus, consists of the will of the holder to perform
certain acts of physical control as a titulary of the real right to which these
acts correspond. The material element, corpus, consists of these acts them-
selves.8′ One may conclude, therefore, that possession is a factual state from
which a real right may be presumed, whereas detention is a factual state
which reflects the negation of such a presumption. 82 All factual relationships
with property, implying physical control, must involve either possession or
78Thus, the civil law contemplates that a person may have one of only four kinds of direct
relationship with an object: two of these, ownership and a jus in re aliena, are juridical; and
two, possession and detention, are factual: see Vanel, supra, note 30, nos 36-41. All relationships
mediated by persons (personal rights) are not direct relationships and must be absorbed under
the rubric of detention.
79Detention is also sometimes described as precarious possession. For an elaboration, see
Rodi~re, supra, note 30, nos 1-3 and nos 93-96; Vanel, ibid., nos 36-40; R-B. Mignault, Le droit
civil canadien, t. 9 (Montreal: Wilson & Lafleur, 1916) at 357.
80See Vanel, ibid., no. 37 who makes reference to:
le fait pour une personne d’exercer sur une chose corporelle un pouvoir materiel
et une certaine maitrise de fait qui se manifeste par des actes de garde, de conser-
vation, de maniement, d’usage, de jouissance ou de transformation. Ce pouvoir
peut 8tre exerc6 sans intention de se comporter comme le titulaire du droit r6el qui
lgitimerait ces actes, il y a alors d6tention ou possession pr~caire.
8’Rodi~re, supra, note 30, nos 11-17. The civil law has always attached important conse-
quences to this characterization: a possessor in good faith may claim fruits (art. 411 C.C.L.C.);
a possessor may set up acquisitive prescription (art. 2193 C.C.L.C.); a possessor with insufficient
title may grant hypothecs (art. 2043 C.C.L.C.). All these possibilities are denied to those with
mere detention: see arts 2203-2207 C.C.L.C.
82Moreover, art. 2194 C.C.L.C. provides that physical control of an object gives rise to a
presumption of possession, not detention: “A person is always presumed to possess for himself
and as proprietor, if it be not proved that his possession was begun for another.” See also
Rodi~re, ibid., nos 45-63.
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[Vol. 31
detention,83 and the distinction between them is particularly important because
the Civil Code provides, under certain conditions, for an elision of possess-
ion and ownership of corporeal moveables.8 4
13. Protecting Relationships of Fact – The question of how far the rights
of an owner of a corporeal moveable not in possession should be protected
against those of a holder or those of a possessor vexes every legal system.8 5
83Under art. 2268(1) C.C.L.C., actual possession creates a presumption of lawful title. How-
ever, if physical control commences under acknowledgement of another’s title, it is presumed
to continue as such. For example, absent an interversion of title under art. 2208 C.C.L.C.,
lessees, depositaries, carriers, mandataries, negotiorum gestores, borrowers for use, tutors, cura-
tors and buyers under suspensive condition can only have detention: they will always be holding
corporeal property explicitly under the acknowledgment of another’s ownership (Le., they will
be “possessing” for another).
By contrast, the position of the usufructuary, user or (on the analysis suggested here) pledgee
is more complex. Insofar as the real right being asserted is concerned they will be holding
animo domini; however, vis-ei-vis the rights held by the bare owner their possession will be
precarious.
A final situation involves finders and thieves, both of whom can assert no antecedent title
to goods. A finder may either have detention, holding for the true owner as, for example, a
negotiorum gestor, or he may be a possessor (in good or bad faith) holding on his own account.
The thief, while prevented from prescribing by arts 2197, 2198 and 2268(6) C.C.L.C. is never-
theless a possessor animo domini. See, generally, Marty & Raynaud, supra, note 23, nos 414-
17.
84Mignault, supra, note 79 at 368. See P. Ortscheidt, “Prescription et possession: Art. 2279-
2280” in Juris-classeur civil (Paris: 2ditions techniques, 1984). This elision, or at least the
apprehension of this elision, is reflected in several codal’provisions. These include the general
prohibition of non-possessory security over moveables (arts 2022 and 1966 C.C.L.C.), the
permission of the don manuel of moveables (art. 776 C.C.L.C.), the seller in possession nemo
dat exception respecting moveables (arts 1026-1027 C.C.L.C.), the fact that only moveables
can be acquired by accession (compare arts 417-419 with arts 429-441a C.C.L.C.), that the
good faith prescription period for acquiring moveables is quite short (art. 2268(2) C.C.L.C.),
that an owner’s right to revendicate moveables may be extinguished even prior to the expiration
of the period for acquisitive prescription (art. 2268(3)-2268(5) C.C.L.C.) and that there is no
separate action for recognizing possessory and proprietary claims in moveables (arts 770-772
C.C.R).
851n the civil law this question historically has been worked out by reference to the true
owner’s right to revendicate his goods from the possessor. In early Roman law, until prescription
was acquired, a dispossessed owner could always revendicate his moveable property: nemo
plus juris in alium transferre potest quam ipse habet. Later, under Justinian’s Code an abbre-
viated prescription of three years was open to good faith acquirers of lost or stolen objects.
See W.W. Buckland & A.D. McNair, Roman Law and Common Law, 2d ed. (Cambridge:
Cambridge University Press, 1952) at 62ff.
By contrast, germanic law followed the rule exemplified by “les meubles n’ont pas de suite”.
Later this rule was modified to prohibit revendication only where an owner voluntarily sur-
rendered possession of the object. If he transferred physical control, as in a contract of deposit,
pledge, loan or conditional sale, he could not claim restitution of his property against a third
party who acquired it from the depositary, pledgee, borrower or purchaser. Where, however,
the moveables were lost or stolen the owner could revendicate against even good-faith third-
party acquirers. See G. Baudry-Lacantinerie & A. Tissier, Trait thorique et pratique de droit
19861
ENFORCING RIGHTS IN MOVEABLES
In modem French law the question is regulated primarily by paragraph
2279(1) C.N. which provides, “en fait de meubles, possession vaut titre”. 86
In France, therefore, moveables may not be freely revendicated from third
parties by an owner out of possession.87 The rule of paragraph 2279(1) C.N.
is both a rule of law: the acquirer of a moveable a non domino becomes
owner solely on the basis of his possession as against the true owner who
voluntarily has given up possession to a defalcating third party; and a rule
of evidence: any possessor of a moveable may invoke his possession as a
presumption of ownership in defence to an action in revendication.88
The corresponding provision in the law of Quebec is article 2268 C.C.L.C.
Paragraph 2268(1) C.C.L.C. states in part that “[a]ctual possession of a
corporeal moveable, by a person as proprietor, creates a presumption of
lawful title.” The rule of paragraph 2268(1) C.C.L.C. is dissimilar to that
civil: De la prescription, 2d ed. (Paris: Librairie de la socidt6 du recueil gdndral des lois et des
arrets, 1899) at 537ff.
In early French law, the rule “les meubles n’ont pas de suite” became transformed into a
rule “les meubles n’ont pas de suite par hypoth~ue”. In other words, the Roman law influence
transformed the rule of germanic law into a limitation on a creditor’s rights but not a limitation
on an owner’s rights. Over the centuries, however, and by the time of Pothier, this rule had
been jurisprudentially limited. In the mid-eighteenth century under the pressures of a growing
commercial economy, this development was confirmed when the Chatelet de Paris announced
the presumption “a possession fait presumer le titre; elle vaut titre”. Hence, good faith possess-
ion of moveables by an acquirer vested him with title. Revendication was permitted only
against acquirers in bad faith, and exceptionally, for a period of three years, against a good
faith purchaser of lost or stolen objects. For a lengthy discussion of this issue in French law,
see E. Jobb6-Duval, ttude historique sur la revendication des meubles en droitfrancais (Paris:
Larose, 1880); Saleilles, supra, note 39; B. Bouloc, “Revendication” in Encyclopedie Dalloz,
supra, note 30, nos 103-8; and Mignault, ibid. at 549-56.
86This principle is also reflected in’art. 2219 C.N., prohibiting the hypothecation ofmoveables,
and art. 2280 C.N. which limits revendication of even lost or stolen objects. See, on art. 2280
C.N., T.J. Dorhout Mees, “La revendication de meubles perdus ou voles contre le possesseur
de bonne foi” in M6langes offerts t Rena Savatier (Paris: Dalloz, 1965) 265. While all corporeal
moveables are in principle covered by this rule, nevertheless, universalities, registered move-
ables (except automobiles), public property, and registered pledged equipment are exempt. By
contrast, real rights in corporeal moveables, even though juridically incorporeal, are included:
Marty & Raynaud, supra, note 23, no. 405. Moreover, in order to invoke the rule of art. 2279
C.N. the claimant must have possession (not mere detention) and must be in good faith. These
conditions are present or presumed in almost all cases involving third parties, with the result
that the possessor in fact acquires an immediate title which cannot be contested by the true
owner. Ortscheidt, supra, note 84, nos 13-88.
87Where, however, the conflict is between a holder and his author, the real owner may establish
the precarity of the holder’s title; if he does so successfully, the action in revendication is
permitted. See Bouloc, supra, note 85, nos 139-46; and Ortscheidt, ibid., nos 222-54.
88This dual meaning was first elaborated by Saleilles, supra, note 39, who demonstrated that
the first branch of this rule could not be understood as a form of instantaneous prescription.
He asserted that the acquirer’s title was a codal form of acquisition of ownership by law
(acquisition lege).
McGILL LAW JOURNAL
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of paragraph 2279(1) C.N. in two respects: first, paragraph 2268(1) C.C.L.C.
applies only to corporeal moveables;8 9 second, the article creates only a rule
of evidence (a presumption), and does not state a rule of law which provides
for an “acquisition lege” for possessors.90 Thus, unlike in France, even when
an owner voluntarily places his corporeal property in the hands of another
who then wrongfully transfers it to a third party, until prescription is acquired,
the third party’s possession will not automatically defeat the owner’s claim.
The right of ownership in Quebec is not extinguished by the mere fact of
another’s possession; only his right to revendicate from certain good faith
purchasers is extinguished.91
14. Dissociating Ownership and Possession of Corporeal Moveables – The
elision of ownership and possession of corporeal moveables has always been
less complete in Quebec than in France. 92 Moreover, the post-War economy
in Canada has developed largely through a dissociation of title and physical
control over corporeal moveables. The deployment of leases, the creation
of registrable non-possessory rights in moveables, and the use of title res-
ervation security mechanisms, have substantially increased the number of
occasions where both owners out of possession and persons with physical
control but no proprietary claim will be seeking vindication of their rights.
Courts are being faced with demands to give greater protection to ownership
in corporeal moveables independently of physical control. “Actual possess-
ion” seems to have called forth a judicially-protected status independent of
its presumption of lawful title, with the result that plaintiffs who are mere
89Thus, persons asserting incorporeal rights, such as claims, those holding juridical univer-
salities, such as successions, or intellectual property may not invoke the presumption. By
contrast, negotiable instruments under art. 1573 C.C.L.C. are included as corporeals: see Cha-
mandy v. Leblanc (1977), [1977] C.S. 176.
90For an elaboration of several aspects of art. 2268 CC.L.C. in the context of sale and pledge,
see Y. Caron, “La vente et le nantissement de la chose mobili~re d’autrui: Deuxieme partie”
(1977) 23 McGill L.J. 380 at 420. The presumption of art. 2268(1) C.C.L.C. is, nevertheless,
difficult to rebut. This results from art. 2194 C.C.L.C. Hence, arts 2194 and 2268(1) C.C.L.C
may be combined to produce the following compound presumption: A person who has physical
control of a corporeal moveable is presumed to be a possessor; a possessor of a corporeal
moveable is presumed to be possessing as proprietor, and possession as proprietor creates a
presumption of lawful title. Of course, it is always open to an owner to prove a defect of
possession under art. 2193 C.C.L.C.
911n France, once good faith possession is established, revendication is impossible regardless
of the proof the owner may make of the origin of the third party’s title. See Ortscheidt, supra,
note 84, nos 66-68.
92This may have resulted from the influence of common law rules relating to conversion of
chattels: see E.L.G. Tyler & N.E. Palmer, eds, Crossley Vaines’ Personal Property, 5th ed.
(London: Butterworths, 1973), or from a clearer perception of the needs of commerce. But the
Lower Canada, Commissioners to Codify the Laws of Lower Canada in Civil Matters, Reports
1-7 (Quebec: George & Desbarats, 1865) makes no mention of either justification.
1986]
ENFORCING RIGHTS IN MOVEABLES
holders often seek to assert the action in revendication as a possessory
recourse. 93
4. The Dematerialization of Corporeal Property
15. Redefining Rights in Corporeal Objects – For almost two millennia the
civil law of property was not confronted with major challenges to its fun-
damental structure. But modem developments have overtaken many of its
axioms and conceptual distinctions. Originally, the theory of corporeal moveable
property was erected from rather straightforward equations of physical object
and legal right. Yet the variety of such moveables (and the complexity of
physical transformation and manufacture implied in the expression “con-
sumer durables”) today belies the possibility of any simple congruence between
one person, one object and one owner. In addition, the legal and factual
permutations relating to the exploitation of corporeal moveables comprise
a frontal assault on the rudimentary distinction between capital and rent
upon which the structure of rights in corporeal moveables has been built.
Many commentators have characterized these developments as an aspect
of the “dematerialization” of the right of ownership. 94 Because this demater-
ialization strikes at three of the central concepts of the civil law of property
the crisp distinction between real and personal rights, the notion of
–
unitary ownership, and the functional elision of possession and ownership
of corporeal moveables –
it seems to call for a reorganization of the cat-
egories under which the utilities of tangible objects may be classified.95 It
also seems to herald the need for updating the conditions under which
various judicial remedies for vindicating rights in (or in relation to) cor-
poreal moveables may be claimed.
93This development, on a case-by-case basis, is a reflection of the “personalist” critique of
the distinction between proprietary and non-proprietary rights. See J. Noirel, “Le droit civil
contemporain et les situations de fait” (1959) 57 Rev. trim. dr. civ. 456.
94For a discussion of this dematerialization, see L. Josserand, “Configuration du droit de
propri6t6 dans l’ordre juridique nouveau” in Melanges juridiques en l’honneur de M. le pro-
fesseur Naojiro Sugiyama (Tokio: Maison franco-japonaise, 1940) 95; and T.C. Grey, “The
Disintegration of Property” in J.R. Pennock & J.W. Chapman, eds, Nomos: Property, vol. 22
(New York: New York University Press, 1980) 69. See also Marty & Raynaud, supra, note 23,
no. 2ff.
95The general philosophical point is argued in Waldron, supra, note 8.
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[Vol. 31
B. Remedial Principles of the Code of Civil Procedure
16. From Rights to Remedies – The basic premise of the civil law, that one
proceeds from rights to remedies,96 is faithfully reflected in the interrelation
of Quebec’s two codes. 97 The 1965 Code of Civil Procedure, a modem doc-
ument reflecting twentieth-century preoccupations, does not set out a pan-
oply of independent, situation-determined recourses. For example, rather
than enumerating several specific remedies such as the common law actions
of trespass, conversion and detinue, each tying a particular fact pattern to
a specific legal consequence, the Code sets out only a few general actions
or proceedings which may be shaped for deployment in a diversity of contexts.
Moreover, the entire Code of Civil Procedure is grounded in two fun-
damental ideas, confirmed by articles 2 and 20 which reflect this orientation.
These articles provide respectively for a priority of substance over form,98
and for proceeding by analogy.99 In other words, restrictions on the avail-
ability of a particular remedy usually are not to be found in the law of civil
procedure once the court has determined to recognize a new or unorthodox
right derived (or extrapolated) from the Civil Code.l00
17. The Titulary of the Judicial Action – An important consequence of the
principle that remedies are derived from substantive rights is a certain deper-
sonalization of judicial recourses. Of course, the Code does elaborate in
96See G. Ripert & J. Boulanger, Trait de droit civil d’aprs le traite de Planiol, vol. 1 (Paris:
L.G.D.J., 1956) no. 65: “La procedure civile n’est qu’un chapitre d6tach6 du droit civil qui
r~gle ]a manire de faire valoir et de d6fendre les droits devant ]a justice.”
97The report of the Codifiers of the new Code of Civil Procedure, tabled on 5 February 1964,
confirms the fundamental principle of civil law theory that rights precede remedies.
98See, e.g., the comments of Pigeon J. on art. 2 C.C.P in Montana v. D~veloppements du
Saguenay Lte (1975), [1977] 1 S.C.R. 32, 5 N.R. 123; Hamel v. Brunelle (1975), [1977] 1
S.C.R. 147, (sub nom. Hamel v. Burnelle) 8 N.R. 481; Duquet v. Town of Ste-Agathe-des-Monts
(1976), [1977] 2 S.C.R. 1132, 13 N.R. 160; and Vachon v. A.-G. Quebec (1978), [1979] 1 S.C.R.
555, 25 N.R. 399. This current of interpretation, far from being novel, is simply a reaffirmation
of a basic civilian juridical idea: see also R. Savoie, chroniques r~guli~res: “Rigorisme ou
laxisme” (1973) 33 R. du B. 305.
99Art. 20 C.C.R explicitly overrides any “forms of action” theory of pleading. This article,
which provides for “innominate” or “sui generis” proceedings, has, however, been invoked
with less success as the courts of Quebec have shown some reticence in permitting its invocation,
They have, for example, required proof that no other procedure was available or appropriate
(see Paquin v. Lefebvre-Paquin (1978), [1978] C.S.. 1182) and that the right alleged was une-
quivocally stated by some text of law (see Ville de St-Georges v. Ville de St-Georges-Ouest
(1977), [1978] R.P 325 (C.A.)).
1Two recent examples of such an approach in matters relating to this study are Lussier,
supra, note 55, where a sub-lessor was permitted to revendicate notwithstanding the absence
of any codal text; and Omniglass Ltd v. Groupe Cayouette Superseal Inc. (8 January 1985),
Montreal 500-09-001210-855 (C.A.), where the court permitted a third party to move to annul
a seizure before judgment, even though no such right expressly appears in the Code.
19861
ENFORCING RIGHTS IN MOVEABLES
interest, quality and capacity –
articles 55-65 C.CP several formal limitations on all actions. These tech-
nical requirements –
define, in broad
terms, the set of plaintiffs who may bring any given proceeding. 10′ But they
do not in any meaningful way impose additional restrictions on the cate-
gories of potential plaintiffs in actions to vindicate rights in corporeal move-
ables. In other words, even though the Code sanctions the principle which
prohibits pleading the rights of a third party with an exception to dismiss
under paragraphs 165(2) and (3), it defers to substantive law for the content
of this principle in any given case.102 It follows, therefore, that any person
with a given legal right typically will have both the interest and quality to
exercise it before the courts. 0 3
The depersonalization of remedies in Quebec is far more pronounced
than in legal systems deriving from “forms of action” pleading. In fact, in
the law of corporeal moveables the courts rarely have entertained motions
for a non-suit on the grounds that another person’s right was being raised. 104
Nevertheless, it is possible to imagine instances where this plea ought, in
principle, to be successful. For example, a wrongfully-holding defendant
could resist a claim for restitution of an object by a promisee purchaser
who never had received possession of the object. The defendant would
claim, in such a case, that only the true owner or other possessor (e.g.,
usufructuary) has an existing substantive right to recover physical control
of the object and that the promisee purchaser was improperly raising the
true owner’s right to possession.105
More difficult problems arise when a defendant raises the special plea
of jus tertli. This will occur when he acknowledges that, in principle, the
“0”Their interrelationship is not always well understood. For a discussion, see R. Savoie,
“De l’int6rt et de la qualit6 comme conditions de recevabilit6 de la demande en justice” (1972)
32 R. du B. 532.
’02See Jeunes canadiens pour une civilisation chretienne v. Fondation du Theatre du Nouveau-
Monde (1979), [1979] C.A. 491 at 493:
Le Code de procedure civile ne d6finit pas la notion d’int~r~t suffisant; il s’agit IA
d’une question de droit substantif qui n’appartient pas A la procedure. A moins
d’une disposition 16gislative d’exception, en droit priv6 c’est aux dispositions du
droit civil, telles qu’interpr6tres par les arrts de nos Tribunaux faisant jurisprud-
ence, qu’il faut s’en rapporter.
’03The only exceptions that come readily to mind are those involving legal representatives
such as testamentary executors and tutors or curators to minors and other incapables: see
Gen~reux v. G~n~reux (1971), [1971] R.P. 328 (Sup. Ct).
14For rare examples of such a plea actually being raised (in each case unsuccessfully): see
Prescotte v. Goyette (1945), [1946] C.S. 147; Montpetit v. Liboiron (1954), [1954] B.R. 301; and
Sous-ministre du Revenu du Quebec v. Formulations Epoxide Beaudry Inc. (6 July 1984),
Terrebonne 700-05-002009-821 (Sup. Ct).
05Similarly, where a defendant in revendication attempts to assert a defence available only
to his author in title, the courts will strike the plea upon motion by the plaintiff: see General
Motors Acceptance Corp. of Canada v. Boucher (1979), [1979] C.A. 250 [hereinafter Boucher].
McGILL LAW JOURNAL
[Vol. 31
plaintiff has sufficient title to sue but that, in the particular case, another
person has a better right to recover possession. For example, a wrongful
holder might plead against a revendicating owner-plaintiff that a possessory
right vested in a third party (e.g., a usufructuary) protects his wrongful
detention against all but the titulary of the possessory right. However, while
it is true that the owner in this example may have no right to immediate
possession (the usus) against a usufructuary not in breach of contract, the
wrongful holder cannot himself plead this third party right as a defence.
That is, even though the owner-plaintiff is pleading and the holder-defendant
is acknowledging the same third party right of possession (jus tertil), the
owner may nevertheless reclaim possession as a result of the Roman law
principle of absolutism of ownership.10 6 Owners and titularies of superior
dismembered fractions of ownership may recover further dismembered property
rights (including the “droit de jouissance”) not actually vested in them at
the time of suit. 10 7 Effectively, the civil law permits the plea ofjus tertii to
be raised by defendants only in cases where a revendicating plaintiff is
attempting to assert a right to possession which he has neither directly nor
by reversion.108 A plaintiff is not prevented from asserting rights which he
holds subsidiarily merely because another potential plaintiff has a more
proximate claim.10 9
18. Categories of Judicial Remedy – The implications of a law of civil
procedure which displays scepticism towards overly refined procedural dis-
tinctions and which places rights before remedies are striking. Three, in
particular, relate to the protection of rights in, or in respect of, corporeal
moveable property. First, there has not heretofore been great pressure to
develop separate recourses for vindicating ownership as opposed to possess-
ion (or even detention) of corporeal moveables.’ 0 Second, interlocutory
‘0 6See B. Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1962) at 107-
15 and 155-57; W.W. Buckland, A Text-Book of Roman Law from Augustus to Justinian, 2d
ed. (Cambridge: Cambridge University Press, 1932) at 199ff.
070f course, in a competition between bare owner and usufructuary, or between a usufruc-
n
tuary and his user, the person with the usus (that is, the most immediate right to possession)
will prevail. See Kimber v. Judah (1885), 2 M.L.R. 86 (Ct Rev.).
08By contrast, the concept ofjus tertiiin the common law has major importance in restricting
proprietary remedies: see PS. Atiyah, “A Re-Examination of the Jus Tertii in Conversion”
(1955) 18 Mod. L. Rev. 97; and A. Jolly, “The Jus Tertii and the Third Man” (1955) 18 Mod.
L. Rev. 371.
’09Almost all issues involving an allegedjus tertii in the law of corporeal moveables, therefore,
arise where a person with only a personal right (or even a future right), who is wrongfully
deprived of physical control, attempts directly to recover the object.
I 0See Bouloc, supra, note 85, nos 1-6. Compare the existence, in relation to immoveables,
of the possessory (art. 770 C.C.P) and the petitory (arts 771 and 772 C.C.P) actions, to which
are analogized the action to interrupt prescription in hypothecary matters (arts 2057, 2062,
2251 and 2257 C.C.L.C.). See also J.J. Anctil, “Le possessoire et le pbtitoire” (1974) 5 R.D.U.S.
26.
1986]
ENFORCING RIGHTS IN MOVEABLES
proceedings by which physical control of moveables may be adjudicated
pending trial take on an added significance.”‘ Third, the exceptions to assert
rights wrongfully interfered with in execution proceedings are crucial to
preventing the “title-washing” effects of a judicial sale.” 12 That is, whether
an action is real or personal is often less important than whether it permits
interlocutory measures or execution oppositions to be taken. Nevertheless,
the characterization of a remedy as proprietary or personal, in specie or by
way of damages, and interlocutory or final does have a major bearing in
determining who are the appropriate parties (plaintiff and defendant) to any
judicial proceeding.
1. Actions for Vindicating Rights in Corporeal Moveables
19. Wrongful Interference with Corporeal Moveables – While the expression
“wrongful interference” is not a term of art in the civil law, it captures the
reality of all disputes over corporeal moveable property. Essentially, a wrong-
ful interference with rights in a corporeal moveable will involve either a
denial or a diminution of a plaintiff’s right. The former would occur, for
example, were a thief or finder to deny the title of an owner or possessor
or were the titulary of a real right less than ownership (or even a personal
right) to exceed the terms of his contract. The latter could occur where a
non-owner lawfully in possession wastes or dilapidates an object or where
a total stranger wilfully or negligently damages an object.
From a practical perspective, the individual suffering the harm will
assert his rights either by asking to have the interference terminated or by
seeking damages for the interference, or both. Typically, to have a disturb-
ance terminated a party will seek specific recovery of a corporeal moveable,
although he may also be content with a prohibitive injunction. Damages,
whether for physical degradation or for loss of enjoyment, are recoverable
under the normal regimes of contractual and delictual liability (article 1070ff.
C. C.L. C.), and may be sought concurrently with an action in specific recov-
ery or a prohibitive injunction.
20. The Action in Damages and Prohibitive Injunctions – The action in
for the total loss of an object whenever property cannot be
damages –
recovered, or for loss of enjoyment owing to the need for repair, or for
is a personal action. Yet, because a claim in
simple diminished utility –
I’IFor the position in France, see G. IUgier, “Saisie-revendication” in Encyclop~die Dalloz:
Proc~dure civile, 2d ed. (Paris: Dalloz, 1980) nos 1-3.
112See R.A. Macdonald, “Privileges and Other Preferences Upon Moveable Property in Quebec:
Their Impact Upon the Rights and Recourses of Execution Creditors” in M.A. Springman &
E. Gertner, eds, Debtor-Creditor Law: Practice and Doctrine (Toronto: Butterworths, 1985) 255
at 274-85.
REVUE DE DROIT DE McGILL
[Vol. 31
damages may be joined to an action in specific recovery of a corporeal
moveable, this remedy serves a similar function to revendication, which is
a real action. Similarly the prohibitive injunction, in cases where a plaintiff
wishes to have a disturbance ended (regardless of who may be in possession),
is also a personal action which frequently is pleaded in lieu of a real action.
In both these situations, classical theory would deny a direct action to
individuals who are not vested with real rights in the object.’13 A person
who is a mere holder of a corporeal moveable derives his rights from the
owner or titulary of some other real right. Since the titulary of a real right
has the duty to ensure the peaceful enjoyment of the person to whom he
has given a personal right, he also has the exclusive right to vindicate that
enjoyment as against third parties. Such vindication would include seeking
a prohibitive injunction and claiming for damages suffered personally as
owner or other titulary of a real right of enjoyment. It would also include
the right to claim damages to cover any liability in respect of a co-contractant
holder’s loss of enjoyment in those cases where the owner or titulary of a
real right is liable to the holder.”14
Despite the general principle, however, in many cases where a holder
may be personally responsible to the owner for physical degradation or loss,
courts have displayed a more pragmatic attitude.” 15 By exception, they have
permitted the holder to sue in his own name, and this not only for his loss
of enjoyment but also for the damage suffered by the owner (or other titulary
of a real right) to whom he is responsible,” 6 even if such a person is not
impleaded.’ ‘7 In this latter class of cases the courts appear to have inflated
the merely personal (or even future) right into a type of real right.’l8
21. Specific Recovery of Corporeal Moveables – The civil law also provides
for three actions tending not to the recovery of damages per se, but rather
“13See the discussion of this point as concerns personal rights in Kirouac v. Ruel, supra, note
55; and as concerns future rights in Studebaker Corp. of Canada v. Glackmeyer, supra, note
77.
“14See, e.g., arts 1604, 1608-1610 C.C.L.C. as concerns lease.
115 As in the case of promise of sale, lease (art. 1621 C.C.L.C.), loan (art. 1768 C.C.L.C.) and
deposit (art. 1805 C.C.L.C.). See Tremblay v. Tremblay (1949), [1949] B.R. 539; Fabi v. Webster
Motors Ltd(1945), [1945] C.S. 130; Spiegelv. Tatem (1936), 60 B.R. 275; Delormev. Anocencio
(1957), [1960] R.L. (N.S.) 202 (Sup. Ct).
’16Saint-Pierre v. Lambert (1936), 42 Q.P.R. 393 (Sup. Ct); Massicotte v. Pellerin (1946),
[1946] C.S. 327; Brissette v. Gregoire (1944), [1944] B.R. 281; Goyette v. V~zina (1944), [1944]
C.S. 406; Letourneau v. Lalibert (1957), [1957] C.S. 428; Perreault v. Therrien (1936), 74 C.S.
481.
‘1 Montpetit v. Liboiron, supra, note 104.
128See especially the notes of Barclay J. in Frichette v. Carriere Lumber Co., supra, note 75.
See also Lebrun v. Charron (1959), [1960] C.S. 363; and Pelletier v. Simard (1958), [1962] R.L.
(N.S.) 417 (Mag. Ct).
1986]
ENFORCING RIGHTS IN MOVEABLES
to the specific recovery of corporeal moveables. These are the action in
revendication (a real action), the personal action for specific performance
of a contractual obligation, and the personal action in restitution of an object
(effectively a delictual recourse enforced through a mandatory injunction).
While the specific attributes of these actions will be discussed in detail later,
their interrelationship and practical deployment demands brief analysis here.
For reasons relating to the availability of interlocutory relief and to
questions of proof, a dispossessed plaintiff normally will seek first to reven-
dicate.” 1 9 Where, however, an action in revendication is not available, lit-
igants attempting to recover corporeal moveables must do so by way of a
less direct route. For example, if the dispossession arises from an over-
holding or a wrongful holding consequent upon a contract with a non-owner
or a non-titulary of a real right, the plaintiff asserting a personal right must,
in theory, frame his action in specific performance of that contract. 120 Some-
times, where the action in revendication lies, and the wrongful dispossession
arises from a breach of contract, the plaintiff will even prefer to bring an
action in specific performance. This preference for a personal action usually
will occur where the contract is more easily proved than is the right of
ownership or other real right. 121 However, should the defendant be a bank-
rupt, recovery against the trustee will depend on asserting a real right regard-
less of the relative ease of proof.122
Where the action in revendication does not lie and the wrongful holding
of the defendant has no contractual basis, the dispossessed plaintiff must
frame his action in delict, with supplementary conclusions by way of res-
titution of the object. 123 The very concept of pleading in delict to recover
“9See Bouloc, supra, note 85; and Ortscheidt, supra, note 84.
120For example, a sub-lessor seeking to recover property from a sub-lessee or a buyer whose
title is suspended by a condition seeking to recover from a borrower will demand specific
performance of the contract of lease or loan.
121A. Weill, E Terr6 & P Simler, Droit civil: Les biens, 3d ed. (Paris: Dalloz, 1985) no. 435
[hereinafter Weill]. A lessor who brings an action against an overholding lessee, e.g., need only
prove the contract, not his ownership. But compare Ortscheidt, supra, note 84, no. 100, who
states, citing judgments on the action in revendication by the Cour de cassation:
Laction en revendication est largement ouverte. Notamment il n’est pas n6cessaire
que le demandeur 6tablisse son droit de propri6t6; il suffit qu’il prouve par tous
moyens que la chose 6tait entre ses mains au moment de ]a perte ou du vol ….
’22See the Bankruptcy Act, R.S.C. 1970, c. B-3, s. 59. Normally, a creditor who produces a
claim in bankruptcy will allege both the contract and the proprietary interest. For the position
in France, see Marty & Raynaud, supra, note 28, no. 402ff.
‘231n cases of a theft of leased property, or a finding of property misplaced by a borrower,
or a depositary of a pledgee of property from a buyer whose title is suspended by a condition,
e.g., the lessee, borrower or buyer, as the case may be, has neither an action in revendication
(stricto sensu) nor an action in specific performance of a contract.
McGILL L4W JOURNAL
[Vol. 31
physical control of an object has a curious ring. Yet juridically, the conclu-
sions by way of restitution of the object are nothing other than a demand
for specific performance of a delictual obligation to repair a harm done. It
is, of course, inconceivable that a person vested with an action in reven-
dication would attempt to recover his property in delict since the proof he
would be obliged to make would be identical in both cases. 2 4 That is, unlike
the situation which arises in respect of specific performance in contract,
where only the contract need be proved, in delict the plaintiff must establish
some pre-existing right to physical control of the object as well as the pre-
cariousness of the defendant’s title.125
22. Distinguishing Personal and Real Actions – These observations suggest
that courts have not been rigorous in applying the distinction between real
and personal actions. No general theory of the availability or interrelation-
ship of actions in damages and in specific recovery has been developed. Nor
have jurists been preoccupied with defining certain actions solely by ref-
erence to the legal title of the plaintiff In practice these recourses are deployed,
much like the common law proprietary tort remedies of trespass, conversion
and detinue, to recognize factual claims upon moveables. 26 The right to
immediate physical control of an object (whether possession or detention)
seems sufficient to sustain all manner of judicial action. In other words, a
concern to achieve effective vindication of any claim relating to corporeal
moveables often overrides conceptual bars to particular actions, and seems
to have promoted the law of judicial remedies to a status above that gov-
erning substantive rights.
2.
Interlocutory Recourses and Oppositions to Seizure
23. Judicial Recourses Other Than Actions – Any modern system of civil
procedure must provide for a variety of special judicial recourses sustaining
the general actions it permits. For example, because of the delay usually
associated with ordinary judicial actions, interlocutory remedies fulfil a key
role in protecting rights in corporeal moveables. The capacity to freeze
particular assets pending a determination of entitlement thereto is especially
important when valuable and portable corporeals are in issue. Moreover,
‘ 24Moreover, by framing an action in delict the plaintiff would be renouncing the benefit of
art. 734(1) C.C.R Finally, should another creditor seize in execution in the interim, the plaintiff
would have to prove his right to revendicate in order to bring an opposition to withdraw under
art. 597 C.C.R
’25For this reason, courts have rarely spoken of a delictual action in specific performance,
but have preferred to use the term “revendicate”: see Frchette v. Carriere Lumber Co., supra,
note 75; Saint-Pierre v. Lambert, supra, note 116; Lussier, supra, note 55.
126For the role of trespass, conversion and detinue in the common law, see J.G. Fleming,
The Law of Torts, 6th ed. (Sydney: Law Book, 1983) at 47.
19861
ENFORCING RIGHTS IN MOVEABLES
should property be seized by error before judgment or in execution, the
rightful owner needs an effective recourse to prevent the judicial sale of his
property. Together, interlocutory recourses and execution oppositions com-
plement actions in specific recovery of corporeal moveables by ensuring the
integrity and efficacy of the underlying judicial action.1 27
24. Seizures Before Judgment and the Attachment in Revendication – The
Code of Civil Procedure explicitly promotes the seizure before judgment to
pre-eminence as an interlocutory proceeding in real actions or personal
actions directed to the specific recovery of property.128 Of the various sub-
categories of seizures before judgment, the attachment in revendication has
become the principal recourse for asserting a real right in corporeal move-
ables.’ 29 In certain cases falling outside the conditions for such a seizure,
notably when specific performance of a contract or damages are being claimed,
other seizures before judgment under articles 733 and 734 C.C.P may be
taken.
In most seizures before judgment, physical control of the seized prop-
erty is either given to a guardian or remains in the hands of the defendant.’ 30
As a result, one of the primary goals of the action in revendication –
immediate specific recovery of a corporeal moveable –
typically is frus-
trated.13′ Moreover, since the guardian is a legal depositary, the attachment
in revendication also prevents the continued economic exploitation of seized
property. 32 It follows that where a secured creditor seeks to realize quickly
upon his security, or where a commercial enterprise (such as a car-leasing
company) depends on inventory turnover, this defect deprives the attach-
ment in revendication of most of its procedural utility.133
25. Judicial Sequestration and Mandatory Injunctions – The limited effec-
tiveness of the attachment in revendication has led to increased deployment
127J. Vincent & S. Guinchard, Procbdure civile, 20th ed. (Paris: Dalloz, 1981) nos 38-47; J.
Vincent, Voies d’excution et procbdures de distribution, 14th ed. (Paris: Dalloz, 1981) no. 1.
128For a brief discussion, see Y. Lauzon, “Les saisies avant jugement” (1974) 76 R. du N.
537.
129Iier, supra, note 111, nos 4-35; Vincent, supra, note 127, no. 88bis.
130See arts 737 and 739 C.C.P. If the defendant recovers possession under art. 739 C.C.R he
is not considered to be a guardian of the property and may use it: see Quenneville v. Samson
(1967), [1969] C.S. 62.
131Banque Canadienne Nationale v. Audet (1977), [1977] C.S. 1123; I.gier, supra, note 111,
nos 1-3.
132Art. 583 C.C.P For elaboration, see Locas v. Brisebois (1968), [1969] B.R. 946; and Dcary
Square Inc. v.Burban (1980), [1980] C.P 392. However, where the defendant is left in possession
he is not considered to be a guardian stricto sensu and may use the goods. See Cie de construction
Belcourt v. Bronzage 3 Soleils Inc. (18 December 1985), Quebec 200-09-000699-857 (C.A.).
133For a similar conclusion, albeit in a slightly different context, see M. Cordeau, “La prise
de possession par le fiduciaire en vertu d’un acte de fiducie” (1983) 24 C. de D. 531.
REVUE DE DROIT DE McGILL
[Vol. 31
of other provisional measures. Two –
judicial sequestration and the man-
datory injunction – have been used in an attempt to give immediate effect
to actions in specific recovery. This is especially the case where the
plaintiff’s claim has only a contractual foundation. 34 Sequestration, like
the attachment in revendication, does not put the property in the hands of
the revendicating plaintiff. It does, however, permit assets to be commer-
cially exploited and, in all cases, removes them from the defendant’s con-
trol.135 In other words, judicial sequestration serves to postpone the entitlement
to claim physical control of property pending litigation, without at the same
time wasting the assets.
By contrast, the mandatory injunction may, in theory, be used to order
the physical transfer of property to a revendicating plaintiff. Nevertheless,
while mandatory injunctions have been used to this effect, especially as a
part of a final order,136 doubts remain as to whether they may be deployed
at an interlocutory stage to achieve, by anticipation, the objective of the
action itself.137 In any event, even if the court were to grant the injunction,
should the defendant refuse to hand over the property, the plaintiff’s ultimate
recourse is not forced execution of the order, but only a contempt citation.
Physical control of the property would still remain with the defendant.
26. The Inefficiency of Interlocutory Recourses – Where a plaintiff seeks
interlocutory relief in connection with the defendant’s wrongful interference
with a corporeal moveable, he normally will have two objectives in mind:
first, the immediate termination of the interference and second, the imme-
diate recovery of his property so that he may then derive its economic
benefits. All three codal provisional measures achieve the first objective.
None really attains the second. The attachment in revendication freezes the
property in the hands of a guardian or leaves it in the hands of the defendant.
Judicial sequestration permits exploitation of the property, but only by the
sequestrator and subject to very restrictive conditions.138 Mandatory injunc-
tions are of uncertain legality when used as an alternative to the seizure
before judgment. A felt need of the civil law in this field, therefore, is for
a pre-emptory remedy, such as the common law remedy of replevin under
1340f course, the ordinary seizure under art. 733 C.C.P. is also available in these cases.
135Nadeau v. Bond (1979), [1979] R.P. 299 (Sup. Ct).
136See Commonwealth Plywood Ltd v. Conseil Central des Laurentides (C.S.N.) (1978), [1978]
’37Sasseville v. Boivin (7 October 1980), Roberval (Alma) 155-05-000192-802 (Sup. Ct). See
138See L. Sarna, “Aspects of the Law of Judicial Sequestration in Quebec” (1977) 23 McGill
also Cordeau, supra, note 133 at 566.
C.S. 194.
L.J. 508.
1986]
ENFORCING RIGHTS IN MOVEABLES
which a revendicating plaintiff may acquire immediate detention and use
of a corporeal moveable. 139
27. Oppositions to Seizures – Where a wrongful interference with a cor-
poreal moveable results not from private action but from legal process (e.g.,
a seizure in execution) the law provides for a special proprietary recourse,
the opposition to withdraw from seizure under article 597 C.C.P140 Article
597 C.C.R states that the opposition to withdraw is open only to those third
parties who are vested with a right to revendicate. Thus, there ought to be
a congruence between plaintiffs in revendication and those who may bring
an opposition under article 597 C.C.P Yet, in view of the major practical
role played by personal actions in specific recovery of corporeal moveables
and in view of the short delay between notice and sale of seized property, 41
courts have sometimes permitted those with only a personal, or even even-
tual, right to bring the opposition. 42 Moreover, since the opposition is
designed to lift a seizure in execution, there is some doubt that a secured
creditor with an accessory real right, who ex hypothesi has a right to reven-
dicate but not a right to use, should be entitled to assert the opposition. 143
Quite apart from formal oppositions to seizures in execution, the law
also provides remedies to dispossessed owners seeking to recover property
wrongfully seized before judgment, or seized in the exercise of a right of
private realization. Thus courts have permitted third parties to invoke article
738 C.C.P to raise a seizure before judgment under the same conditions as
a seizure in execution. 144 Again, where goods have been seized under private
agreement (e.g., under a security agreement or a trust deed), courts have
sometimes permitted the third party to bring an ordinary opposition 45 and
39See Fleming, supra, note 126 at 68 on the writ of replevin. It is interesting that the new
1
Act Respecting the Transfer of Property in Stock, supra, note 49, s. 30 gives the transferee (a
secured creditor) a right to obtain a judicial order compelling his debtor to hand over the
secured collateral. This contrasts with other secured financing devices such as the commercial
pledge or the trust deed, where an attachment in revendication is required to compel a recal-
citrant debtor to hand over secured collateral.
1401n the case of an ordinary seizure in execution, where the opposition to withdraw is tardy,
the proprietary interest is carried forward into an opposition for payment under art. 604 C.C.P
See Y. Lauzon, Droit judiciaire priv: Executions des jugements (Montr6al: Th6mis, 1983) at
66-73.
14’See art. 594 C.C.R
142See, e.g., Lussier, supra, note 55.
143See the cases cited in R.A. Macdonald, “Exploiting the Pledge As a Security Device”
(1985) 15 R.D.U.S. 551 at 611-14.
’44See Theberge-Brochu v. Morin (1980), [1980] C.A. 193 by implication.
145Keymar Equipment Ltd v. Thomcor Holdings Ltd (1983), [1983] C.S. 326 [hereinafter
Keymar Equipment].
McGILL LAW JOURNAL
[Vol. 31
sometimes required that he proceed by prohibitive interim injunction cou-
pled with an action in revendication. 46
28. The Scope of Oppositions – Since a system of adversarial adjudication
vests carriage of an action in a private plaintiff, the vindication of property
rights wrongfully interfered with tends to be plaintiff-driven. But a legal
system must also provide for effective means of protecting rights in response
to judicial process brought by others who wrongfully (and usually inad-
vertently) assert a competing interest in the property. Where the interference
occurs in a third party execution one might anticipate an absolute congru-
ence between the recourse in revendication and the opposition. Yet, probably
because of the urgency of execution proceedings and because of uncertainty
about the scope of revendication as a purely proprietary recourse, courts
appear reticent to reach such a conclusion.
3. Specific Recovery Otherwise Than By Action
29. Non-Judicial Surrogates to Revendication – Closely allied with direct
actions for specific recovery are two other recourses which are non-judicial
surrogates to revendication. One serves the same purpose as the action in
revendication; its availability, therefore, is subject to the same limitations
as the action in revendication itself. The other is the analogue of specific
performance of a contract, and rests on an identical juridical footing. Both,
however, are varieties of recapture, a self-help remedy. 147
These surrogates to revendication are not well known. While the oft-
repeated principle nul ne peut se faire justice 48 lies at the foundation of
remedies for breach of an obligation to do or not to do, the law permits
parties in many situations touching an obligation to give to avail themselves
of a self-help recourse to vindicate a right in relation to a corporeal move-
able. 149 Thus, passive measures such as the right of retention, the exceptio
non adimpleti contractus in sale, and the right of dissolution deplano under
146St-Louis Automobiles Lte v. Banque Nationale du Canada (1981), 42 C.B.R. (N.S.) 275,
22 C. de D. 901 (Que. Sup. Ct); Banque Nationale d Canada v. St-Louis Automobiles Lte
(1981), 42 C.B.R. (N.S.) 280 (Que. C.A.).
147While recapture is a term derived from the common law, the term or its equivalent appears
twice in Book Four of the Civil Code. See arts 2452 and 2677 C.C.L.C. It will, consequently,
be used as a bonafide civil law term of art in this study.
48See Ghestin & Goubeaux, supra, note 21, no. 519ff.
1
149See J. B~guin, “Rapport sur l’adage ‘Nul ne peut se faire justice i soi-meme’ en droit
francais” (1966) 18 Tray. Assoc. Henri Capitant 41, for a complete listing of exceptions to the
general principle.
1986]
ENFORCING RIGHTS IN MOVEABLES
article 1544 C. C.L. C. do not presuppose judicial intervention to support a
right flowing from detention of an object.
What is more, in many cases where the action in revendication lies,
positive private action to recover physical control of a corporeal moveable
will be tolerated. 50 This is particularly true where an owner is asserting a
contractual right against a wrongful holder.15′ Courts seem less willing to
permit contractual recapture by a non-owner secured creditor,152 although
the point is still open. 53 A fortiori it is doubtful that a right of contractual
recapture could be exercised by a creditor who has no right to revendicate.154
In addition, while courts seem prepared to permit an owner to recapture
from a co-contractant, they have not settled the question of whether he may
do so from a finder, a thief or some other third party. 55 It follows that even
though private recapture is a surrogate to revendication, doubts remain
about whether its availability is not more narrowly circumscribed.
Judicial actions
30. Specific Recovery at the Margins of Revendication –
are by far the most visible coercive mechanism for enforcing legal rights.
Moreover, for the sake of public peace most legal systems are designed to
encourage recourse to the courts as a dispute settlement mechanism. 156 Yet,
no system of judicial remedies, no matter how efficient, can ever suppress
the urge to ownership reflected in the Latin maxim: ubi rem meam invenio,
ibi vindicatio. Private justice to enforce a claim for monetary compensation
may well be undesirable. But judicial process to recover corporeal moveables
is often otiose. Far from being at the margins of revendication, peaceful
self-help functionally is at its core.
150The only example explicitly set out in the first three Books of the Civil Code of Lower
Canada relates to the recovery of a swarm of bees. See art. 428(3) C.C.L.C.
151 Omer Barr Ltd v. Gravel (1940), 78 C.S. 262. But this right is now limited, in certain
cases, by the Consumer Protection Act, R.S.Q. c. P-40.1, s. 136(b) [hereinafter CPA]. But see
Boucher, supra, note 105 for a narrow interpretation of the CPA.
IS2See the judgments of the Quebec Superior Court and Court of Appeal in St-Louis Auto-
mobiles Lte v. Banque Nationale du Canada, supra, note 146.
153See Banque Canadienne Nationale v. Manufacture Roland Couture Inc. (26 August 1982),
Quebec 200-09-000505-823 (C.A.) at 2. See also M. Paquet, “Pouvoir de prise de possession
informelle dans le cas des garanties des alin6as 178(1) a) et b) de la Loi sur les banques: Existence
ou inexistence” (1984) 44 R. du B. 333. See also Re Boutique Andr Bibeau (1983), 49 C.B.R.
(N.S.) 56 (Sup. Ct).
154For example, a promisee-purchaser seeking to recapture from an overholding borrower of
the promisee-seller.
’55Compare Cadorette v. Paris (1949), [1950] B.R. 125; and Cloutier v. Tanguay (1935), 42
R.L. 161 (Sup. Ct).
156See C.A. Branston, “The Forcible Recaption of Chattels” (1912) 28 L.Q. Rev. 262.
608
REVUE DE DROIT DE McGILL
[Vol. 31
4. Remedies Controlling Rights
In principle, the remedies elaborated
31. Reconciling Practice and Theory –
by the Code of Civil Procedure are sufficient to permit effective vindication
of all rights in and upon corporeal moveables. By contrast, however, with
immoveables, which neither waste rapidly nor are easily displaced, most
moveables are genuine objects of commercial transactions. In a modem
economy a legal regime, which is expensive to set in motion and whose
interlocutory remedies do no more than freeze assets pending trial, is archaic.
Most often the immediate use-value of a corporeal moveable is not sig-
nificantly less than its capital value. This use-value, moreover, is not ade-
quately calibrated by the intensity of abstract property notions which
overemphasize the distinction between rights in, and rights in respect of,
corporeal moveables.
If the panoply of judicial remedies is insufficient to its task, then com-
mercial and legal practice soon fill the gap created by the omission. Perceived
problems with both the scope of revendication and the efficiency of inter-
locutory recourses have generated new recourses and have redefined old
remedies. In Quebec, this has occurred with respect to contractual recapture
and in the domain of actions for the specific recovery of corporeal move-
ables. One might even conclude that remedies in the broadest sense have
been the engines which drive amendment to substantive legal rights.157
C. Recognizing and Vindicating the New Property
32. The Congruence of Substance and Procedure –
In an ideal (if unattain-
‘able) legal system, the law governing judicial remedies in a code of civil
procedure should be congruent with the substantive law of the civil code.
And both should reflect a coherence of theory and practice. Yet this is not
the case today in Quebec as concerns the vindication of rights in corporeal
moveables.
The chasm between theory and practice (the law in books and the law
in action) may be bridged in one of four ways. First, one may simply dismiss
recalcitrant data (judicial decisions) as wrong. Second, one may attempt to
amend the conceptual structure of substantive legal rights. Third, one may
extend the scope of substantive rights by fiction. Fourth, one may retool
157This point has been recently made in France. See Motulsky, supra, note 21; and B. Boccara,
“La procedure dans le d~sordre: Le d6sert du contradictoire” J.C.R 1981.1.3004. Moreover, a
1975 amendment to art. 2283 C.N. in France now provides that possessory actions “sont
ouvertes dans des conditions pr6vues par le Code de procedure f ceux qui possdent ou
d~tiennent paisiblement.” See Mazeaud, supra, note 23, nos 1456-67; and Vincent & Guinchard,
supra, note 127, nos 54-72.
1986]
ENFORCING RIGHTS IN MOVEABLES
the remedial apparatus of the law.158 One would expect either of the first
two approaches to be taken in codified legal systems, systems which by
definition appear to be more formally rational. 159 Yet atavisms in legal schol-
arship pertaining to the theory of property 160 have often promoted the third
to pre-eminence, and compelled courts to adapt existing remedies to new
purposes. That is, the law of procedure seems to have shown greater respon-
siveness and malleability than the law of rights.
Because this study focuses on the enforcement of rights in corporeal
moveables, primary attention will be devoted to the action in revendication
and its three surrogates –
the attachment in revendication, the opposition
to withdraw from seizure, and recapture at law. Nevertheless, other personal
recourses, such as the action in specific performance or in restitution of an
object, as well as injunctions and damages, will be treated insofar as they
complement one of these real actions and other recourses. The following
table sets out synoptically the interrelationship of these remedies.
Remedies for Vindicating Rights in Corporeal Moveables
Specific Recovery of Property Monetary
Actions
Interlocutory
Relief
Revendication
Specific Performance of a
Contract
Action in Restitution
(mandatory injunction)
Seizure Before Judgment
under article 734 C.C.R
Other
Judicial
Recourses
Self-Help
Recourses
Sequestration
Mandatory
Interlocutory
Injunctions
Opposition to Withdraw from
Seizure
Recapture at Law
Recapture Founded on
Contract
Compensation
Article 1053 C.C.L.C.
Article 1070 C.C.L.C.
Article 1053 C.C.L.C.
Seizure Before
Judgment under
articles 733 and 734
C.C.R
Opposition for
Payment
Cessation of Trouble
Prohibitive Injunction
Interlocutory
Prohibitive Injunction
Mise en demeure
15SFor a discussion of these alternatives, see “Introduction” in L.L. Fuller, Legal Fictions
(Stanford, Calif.: Stanford University Press, 1967).
159The attributes of formally rational legal systems, and the characterization of codified
civilian systems as tending to formal rationality, are explored in M. Rheinstein, ed., Max Weber
on Law in Economy and Society, trans. E. Shils (Cambridge, Mass.: Harvard University Press,
1954) at 61ff.
I6For an assessment of atavisms in legal scholarship, see the work of C. Atias, “La con-
troverse doctrinale dans le mouvement du droit priv6” (1982-83) 16 Rev. rech. juridique-droit
Prospectif 427; “Emergence de la norme juridique” (1984) 3 Cahiers du C.R.E.A. 105; and
“Progr~s du droit et progr~s de la science de droit” [1983] Rev. trim. dr. civ. 692.
McGILL LAW JOURNAL
[Vol. 31
33. Legal Change in Substance and Procedure –
To set out the basic con-
cepts of the civil law of property, and to show how modem uses of corporeal
moveables have challenged these concepts, is no great accomplishment. All
law evolves. Similarly, the greater flexibility of remedies in a Code of Civil
Procedure, enacted a century after a Civil Code which defines the substantive
rights these remedies protect, simply shows that legislative reform tends to
be oriented towards the resolution of problems of practice and not towards
theoretical perfection.
But the interplay of right and remedy also suggests how new forms of
property achieve legal recognition. Practice calls forth new legal institutions
and new innominate contracts. The rights they create prove to be insuff-
iciently protected if the preconditions for invoking existing remedies are
rigorously applied. Remedies soon are stretched to give additional protec-
tion to these rights. Theorists then attempt to reconceptualize rights on the
basis of the kind of legal protection they are afforded. When courts and
legislatures explicitly adopt the proposed doctrinal reconceptualization, new
property rights, if not a new system of property itself, are consecrated. This
dialectic of right and remedy in the recognition and vindication of rights
in corporeal moveables constitutes the major sub-theme of this study.
II. The Action in Revendication
34. Priority of the Action in Revendication – While the civil law knows a
variety of actions and other recourses for enforcing rights in corporeal move-
ables, it implicitly recognizes the action in revendication as the primary
means by which a wrongfully dispossessed plaintiff may regain physical
control of an object from a third party.161 Ownership being the ultimate
property right, it is not surprising that a remedy designed originally to vin-
dicate ownership should be at the foundation of other judicial recourses.
Nevertheless, owing in part to the origins of revendication as a purely peti-
tory remedy and in part to the rule of paragraph 2268(1) C.C.L.C., there is
significant uncertainty in Quebec about the scope of the action. 162 This
uncertainty relates not only to the underlying nature of the action but also
to the categories of plaintiff who may bring the action, to the conditions
under which the action is lost and to the appropriate party defendants to
99; Bouloc, supra, note 85, nos 1-6.
’16 See Mazeaud, supra, note 23, nos 1627-30; Marty & Raynaud, supra, note 23, nos 388-
62A similar uncertainty exists in France. Compare, e.g., Ortscheidt, supra, note 84, no. 100
1
with Bouloc, supra, note 85, nos 176-78; and Mazeaud, ibid., no. 1629 with Marty & Raynaud,
ibid., no. 390ff.
1986]
ENFORCING RIGHTS IN MOVEABLES
the action. It follows that a first step in assessing the effectiveness of reven-
dication as a remedy for vindicating rights in corporeal moveables is to
develop a general theory of the action.
A. Elements of a Theory of the Action
1. Codal Texts in Quebec
Surprisingly, in view
35. Absence of Legislative Definition of the Action –
of the role which revendication is called upon to play, there is no explicit
mention of the action and its purposes either in the Code of Civil Procedure
or in the Civil Code. The term “revendicate” does, however, appear several
times in each Code.163 From these usages several features of the action may
be deduced.
36. Code of Civil Procedure – The Code of Civil Procedure does not elab-
orate a general theory of petitory and possessory real actions in respect of
moveables.164 Twice, however, reference is made to collateral or special
proceedings which are contingent upon the existence of a “right to reven-
dicate”. First, article 597 C.C.P, which is found in the sub-section “Oppo-
sition to Seizure in Execution”, provides:
The opposition may also be taken by a third party who has a right to revendicate
any part of the property seized. [emphasis added]
Second, paragraph 734(1) C.C.P, which is found in the chapter “Seizure
before Judgment”, states:
The plaintiff may also seize before judgment:
(1) the moveable property which he has a right to revendicate as owner, pledgee,
depositary, usufructuary, institute, substitute or unpaid vendor;
… [emphasis added]
Because paragraph 734(1) C.C.P qualifies the term “revendicate” for the
purposes of entitlement to a seizure before judgment (that is, for the pur-
poses of the attachment in revendication) while article 597 C.C.P does not
in any way limit the term, the Code of Civil Procedure therefore appears to
leave open who may exercise the action and under what conditions. One
163For a complete listing of its appearances in the Civil Code, see The Key Words in Context
(KWIC) of the Civil Code of Lower Canada (at April 1 1984) (Quebec Research Centre of
Private & Comparative Law, 1985) at 747 under “revendicate”, “revendicated” and “reven-
dication”. For a similar list of French language usage see Liste KWIC du Code civil du Bas
Canada (au ler avril 1984) (Centre de Recherche en droit priv6 & compar6 du Qu6bec, 1985)
at 785.
164Compare arts 770-772 C.C.P as concerns immoveables. See also Anctil, supra, note 110
at 27.
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might well infer, at least for procedural purposes, (i) that the right to reven-
dicate as such is given to owners, pledgees, depositaries, usufructuaries,
institutes, substitutes and unpaid vendors, and (ii) that other persons may
also be vested with this right.’ 65
37. Civil Code: General – The Civil Code also is silent as to the underlying
theory of the action. Once again, however, several articles make reference
to situations giving rise to a right of revendication. Of these, article 2268
C. C.L. C. seems to offer the most general statement of the scope of the action,
even if it does so by defining situations where the right to revendicate is
lost. Paragraphs (3), (4) and (5) of article 2268 C.C.L.C. provide:
(3) This prescription is not, however, necessary to prevent revendication, if the
thing have been bought in good faith in a fair or market, or at a public sale,
or from a trader dealing in similar articles, nor in commercial matters generally;
saving the exception contained in the following paragraph.
(4) Nevertheless, so long as prescription has not been acquired, the thing lost
or stolen may be revendicated, although it have been bought in good faith in
the cases of the preceding paragraph; but the revendication in such cases can
only take place upon reimbursing the purchaser for the price which he has
paid.
(5) If the thing have been sold under the authority of law, it cannot, in any
case, be revendicated. [emphasis added]
These paragraphs imply that the action in revendication is open only
to owners, 166 even though paragraph 2268(1) C.C.L.C. is consistent with a
broader interpretation. Paragraph (1) states, referring generally to persons
seeking to recover a corporeal moveable, “[a]ny party claiming such move-
able must prove, besides his own right … “. In other words, from the text
1
651n other words, one may infer that the attachment in revendication under art. 734(1)
C.C.P is not necessarily coextensive with the right to revendicate. It would follow that the
oppositions under art. 597 C.C.R might well be taken by a wider class of person. See Lauzon,
supra, note 140 at 67-72.
166The similarity of these paragraphs to arts 1488-1490 C.C.L.C. respecting the sale of a thing
belonging to another suggests that their primary thrust is to limit the vindication of ownership.
This inference arises because art. 1487 C.C.L.C. states: “The sale of a thing which does not
belong to the seller is null, subject to the exceptions declared in the three next following articles.”
It is to be noted, however, that arts 1488-1490 C.C.L.C. are contained in the Title, “Of Sale”
and employ the expression “reclaim” rather than “revendicate”. They provide:
1488. The sale is valid if it be a commercial matter, or if the seller afterwards become
owner of the thing. [emphasis added]
1489. If a thing lost or stolen be bought in good faith in a fair or market, or at a
public sale, or from a trader dealing in similar articles, the owner cannot reclaim
it, without reimbursing to the purchaser the price he has paid for it. [emphasis
added]
1490. If the thing lost or stolen be sold under the authority of the law, it cannot be
reclaimed. [emphasis added]
For an exhaustive study see Caron, supra, note 90. It should also be noted that the French
language version of arts 1489-1490 C.C.L.C. employs the terms “revendication”and “revendique”.
1986]
ENFORCING RIGHTS IN MOVEABLES
of article 2268 C.C.L.C. alone it is unclear whether the action may be taken
by non-owners. 167
In a number of other articles, the
38. Civil Code: Particular Examples –
Civil Code makes direct reference to particular cases where revendication
is permitted. Like article 2268 C.C.L.C. and articles 597 and 734(1) C.C.P,
none of these directly addresses the scope and purposes of the action. Never-
theless, some do suggest limitations on the categories of plaintiff who may
revendicate.
Often the Code states that the substantive right to revendicate is limited
to persons claiming as owners. For example, such a restriction is found in
article 2005a C.C.L.C., which states:
The same rule applies to the owner of a thing which has been stolen, who
would not have lost his right to revendicate it, had it not been judicially sold.
[emphasis added]
Yet, other articles of the Code are less explicit as to the status which
must be claimed by a revendicating plaintiff Thus paragraph 777(5) C.C.L.C.
provides:
If without reservation of usufruct or of precarious possession, the thing given
remains unclaimed in the hands of the donor until his death, it may be reven-
dicated from his heirs, provided the deed has been registered during the lifetime
of the donor. [emphasis added]
A similar formulation may be found in article 1535 C.C.L.C., which states:
If the buyer be disturbed in his possession or have just cause to fear that he
will be disturbed by any action, hypothecary or in revendication, he may delay
the payment of the price until the seller causes such disturbance to cease or
gives security, unless there is a stipulation to the contrary. [emphasis added]
Finally, paragraph 2246(1) C.C.L.C. provides:
Any person in possession as proprietor of a thing or a right, preserves, by
reason of such possession, his right to set up by plea against any demand in
revendication of such thing or right, all such grounds of nullity … as tend to
defeat the action, although his right to do so by direct action may have been
prescribed. [emphasis added]
In each of these cases the most plausible circumstances giving rise to reven-
dication are those involving a dispossessed owner. But this need not be the
case in practice. To begin with both articles 777 and 1535 C. C.L. C. suggest
that the titulary of any real right (jus in re) can revendicate. Moreover, the
167See, however, the old cases of Franey v. Costello (1882), 12 R.L. 300 (Circ. Ct); Moisan
v. Roche (1877), 4 Q.L.R. 47 (Q.B.); and Gilbert v. Coindet (1877), 4 Q.L.R. 50 (Q.B.) which
disposed of this question by holding that a non-owner could revendicate under art. 2268
C.C.LC.
McGILL LAW JOURNAL
[Vol. 31
coupling of the term “right” with the term “thing” in article 2246 C.C.L.C.
intimates that even incorporeal rights –
necessarily only personal rights
– may be revendicated.168
Further uncertainty arises because other articles explicitly state that the
action in revendication may be exercised by non-owners, including titularies
of personal rights. For example, article 1801 C.C.L.C. states:
If the deposit has been made with a person incapable of contracting, the party
making it has a right to revendicate … so long as it remains in the hands of
the former, and afterwards a right to demand the value of the thing in so far
as it has been profitable to the depositary. [emphasis added]
No limitations on the quality of the depositor are implied by article 1801
C.C.L.C., and article 1808 C.C.L.C. contemplates that the depositor need
not be the owner of the property deposited. 169 Again, paragraph 1543(1)
C.C.L.C. provides:
In the sale of moveable things the right of dissolution by reason ofnon-payment
of the price can only be exercised while the thing sold remains in the possession
of the buyer, without prejudice to the seller’s right of revendication as provided
in the title of Privileges and Hypothecs…. [emphasis added]
This right of unpaid sellers to revendicate is elaborated in articles 1998-
2000 C.C.L.C. Article 1998 C.C.L.C. states:
The unpaid vendor of a thing has two privileged rights:
I. A right to revendicate;
2. A right of preference upon its price; In the case of insolvent traders these
rights must be exercised within thirty days after the delivery.
[emphasis added]
While the Code sets out several recourses available to a seller who has not
been paid, by definition the unpaid vendor referred to in article 1998 C.C.L.C.
is a non-owner. He is a seller who has transferred both title and possession,
retaining in principle only a personal claim for the price against his buyer.170
’68This article is poorly drafted in that it speaks (at the same time) of possession as proprietor
and of a right as the object of the possession. Presumably, the article is simply intended to
codify the maxim quae temporalia sunt ad agendum, perpetua sunt ad excipiendum. See Mig-
nault, supra, note 79 at 476ff.
is owner of the thing deposited”.
169Art. 1808 C.C.L.C. states: “The depositary cannot exact from the depositor proof that he
‘ 70See Mercure v. Philippe Beaubien et Cie (1965), [1966] B.R. 413 for a discussion of the
seller’s rights in cases where ownership does not pass to the buyer. See also Re Beatrice Pines
Ltd (1967), [1968] C.S. 351.
1986]
ENFORCING RIGHTS IN MOVEABLES
A special case of the unpaid vendor’s right to revendicate is set out in
paragraph 2013e(6) C.C.L.C., which provides:
The supplier of materials is also entitled, in case of the insolvency of the
proprietor or builder, or in case of failure to make payment at the periods
agreed upon, to revendicate the materials he has supplied, but which have not
yet been incorporated into the building. [emphasis added]
Once again, the supplier of materials is, ex hypothesi, not an owner.
It follows from this review of codal articles that the term “revendicate”
is not always used as a term of art. Indeed, in several instances, the Code
appears to use the word as no more than a shorthand expression for “regain
physical control”.
39. Cognate Terms in the Civil Code – The above examples illustrate that
a simple catalogue of instances where the term “revendicate” appears in
the Civil Code is not particularly helpful in establishing the exact scope of
the action in revendication. To complicate matters, when the list of plaintiffs
who may seize before judgment under paragraph 734(1) C. C.P on the basis
of their right to revendicate (i.e., the owner, pledgee, depositary, usufruc-
tuary, institute, substitute, unpaid vendor) is cross-referenced with the articles
of the Civil Code governing the substantive rights of such individuals, it
becomes apparent that a variety of synonyms for “revendicate” are regularly
employed. These synonyms include, among others, the terms “recover”,1 71
“restitution”, 172 “reclaim”, 173 “obtain delivery”, 174 “claim possession”, 175
“restore”, 176 “take back”, 177 and “give back”.’ 78 Whatever the case in doc-
trinal literature, it is clear that codal usages are frequently inexact.
40. Ambiguities in Codal Texts – Three questions about the scope of reven-
dication emerge from this review of usages in the two Codes. First, does
paragraph 734(1) C.C.P establish a numerus clausus not only for the special
’71See art. 1598 C.C.L.C. on an owner’s right to revendicate if evicted in an exchange.
172See art. 1975(l) C.C.L.C. on the pledgors right to revendicate from his pledgee.
173See arts 1489-1490 and 1966a C.C.L.C. as concern a true owner’s right to revendicate
from the buyer or pledgee of a thing belonging to another. See also art. 777 C.C.L.C. for the
use of the term “claim” in relation to donors and art. 428 C.C.L.C. in respect of owners of
swarms of bees.
’74See art. 1979c C.C.L.C. on agricultural pledge and art. 1979 C.C.L.C. on commercial
pledge, which describe the pledgee’s right to obtain possession from the pledgor in default.
’75See art. 918 C.C.L.C. on testamentary executors, art. 981b C.C.L.C. on trustees, and art.
2268(1) C.C.L.C. in general. The French language version of these articles, by contrast, employs
the term “revendiquer”.
’76See art. 1810 C.C.L.C. on deposit, arts 1051-1052 C.C.L.C. on reception of a thing not
due, and art. 1774 C.C.L.C. on loan for use.
177See art. 1773 C.C.L.C. on loan for use.
17See art. 441 C.C.L.C. on the workman’s right of retention.
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[Vol. 31
attachment in revendication proceeding, but also for the action in reven-
dication itself? In other words, is it possible to generate a theory of plaintiffs
in revendication by further extrapolation from paragraph 734(1)C.C.R, or
must one conclude that other holders of corporeal moveables not listed in
the article have only personal remedies such as the action in specific per-
formance founded on contract?
A second question flows from conflicting usages in the Code of Civil
Procedure and the Civil Code. Do certain titularies of personal rights listed
in paragraph 734(1) C.C.P, or to whom the Civil Code applies the term
“revendicate”, actually not have an action in revendication per se, but rather
an action merely in specific performance? That is, does paragraph 734(1)
C. C.P misuse the word “revendicate” to describe certain categories of plain-
tiffs vested only with personal actions to recover corporeal moveables?
Third, is the usage of the Civil Code to be taken as inexact, so that
cognate terms should also be understood as authorizing a recourse in reven-
dication wherever they appear? For example, do other instances of the words
“reclaim” (e.g., articles 428 and 1489 C.C.L.C.) and “restitution” (e.g., articles
440 and 1190 C.C.L.C.) suggest the availability of revendication?
Since it is the Codes themselves which generate these ambiguities, it is
necessary to refer to general principles of the civil law, as elaborated in the
cases and in doctrinal sources, in order to develop a theory of the action.
In this exercise, one may begin profitably with a review of the theory of the
action in revendication in France.
2. The Theory of the Action in France
Surprisingly, the current theory of the action
41. Doctrinal Perspectives –
in France is not settled. 179 In fact, most analyses of the right of revendication
focus more on the impact of articles 2279 and 2280 C.N. as instances where
entitlement to bring the action is lost than on defining its availability or on
elaborating its surrogates.180 A good example of this tendency is the article
179The most valuable doctrinal sources are Mazeaud, supra, note 23, no. 1627ff.; Marty &
Raynaud, supra, note 23, no. 217ff.; J. Carbonnier, Droit civil, vol. 3, 10th ed. (Paris: Presses
universitaires de France, 1980) no. 68ff.; C. Aubry & C. Rau, Droit civilfrancais, vol. 2, 7th
ed. by P. Esmein (Paris: Librairies techniques, 1961) no. 94ff.; Weill, supra, note 121, no. 506ff.;
Jobb&Duval, supra, note 85; Saleilles, supra, note 39. Three helpful encyclopaedic sources are
Bouloc, supra, note 85; Logier, supra, note I 11; and Ortscheidt, supra, note 84.
‘8OFor example, Mazeaud, ibid., devotes pages 250-59 to the former topic, and only pages
318-20 to the latter. Marty & Raynaud, ibid., devote most of pages 488-510 to the former, and
do not really discuss the latter at all. Bouloc, ibid., discusses the action in revendication per
se in 8 paragraphs of an article of 225 paragraphs. Ortscheidt, ibid., considers the latter question
in about 10 paragraphs of his 254-paragraph study. However, Logier, ibid., devotes about half
his essay to this question.
1986]
ENFORCING RIGHTS IN MOVEABLES
on revendication in the Enclyclopdie Dalloz, which summarizes the posi-
tion under the Code Napoleon as follows:
1. Le droit de propriet6, comme tout autre droit, est prot~g6 par une action en
justice qui permet au propri~taire de faire reconnaitre et sanctionner son droit:
c’est l’action en revendication (rei vindicato, r6clamation de la chose). La reven-
dication se fonde donc sur l’existence du droit de propri~t6 et elle a pour but
l’obtention de la possession. Pour triompher, le demandeur A l’action devra
6tablir son droit de propri&6t …
2. La revendication est une action rfelle et une action p~titoire, en principe
imprescriptible, et relevant de la competence judiciaire.
3. Tout d’abord, la revendication est une action r~ele ob~issant aux r~gles
g~n~rales des actions en justice. Elle se distingue, ainsi, de toutes les actions
en restitution qui se fondent sur une obligation pesant sur le d~fendeur (louage,
pr~t, mandat, etc. …). Ces derni~res sont des actions personnelles puisque le
demandeur fait valoir un droit de crEance en prouvant le contrat en vertu
duquel le co-contractant s’est engag6 A restituer la chose. En revanche, par la
revendication, le demandeur affirme son droit de proprit6 A l’encontre d’un
possesseur: il s’agit d’une action rtelle.
4. La revendication est 6galement une action ptitoire. A la diftfrence de cer-
tains droits 6trangers qui connaissent une “action en revendication de la possession”
… notre droit distingue, en matire immobilire, les actions possessoires qui
portent sur le fait de la possession, et les actions p~titoires qui touchent au’
fond du droit, A l’existence meme du droit de propri~t6. En mati~re mobilire,
il est vrai, aucune action possessoire n’a W pr~vue. On peut cependant remar-
quer que l’action en revendication est accordfe non seulement A celui qui avait
une action animo domini, mais encore au cr~ancier gagiste ou au d~positaire,
qui, en cette qualit6, a la responsabilit6 de la garde du meuble. Si bien que
c’est, en fait, une sorte d’action possessoire mobilire qui est accord~e au cr~an-
cier-gagiste d’un meuble. En r~alit6, l’action en revendication, stricto sensu,
tout en permettant de recouvrir la possession, implique la n~cessit6 pour le
demandeur de prouver son droit de propri~t6 A l’encontre d’une personne se
prrvalant sur le mme bien d’un droit reel rival, alors que l’action en reven-
dication de possession requiert seulement l’existence d’une possession antrieure.’ 8′
42. Evolution of the Action –
It would appear, therefore, that the action in
revendication originally was conceived as both a real and petitory action
designed to vindicate the right of ownership indirectly by ordering physical
recovery of property. However, the absence of a separate possessory action
for moveables induced first the pre-Revolution parliaments and then the
courts to broaden the scope of the action in two respects.18 2 Initially, the
action was extended to titularies of other real rights in corporeal moveables.
Later, the action was given even to some titularies of purely personal rights.
By the time of the 1804 Codification it was accepted that titularies of
real rights of enjoyment could protect their rights through the action in
’81Bouloc, supra, note 85 at 1 [references omitted].
’82See the discussion in M. Planiol & G. Ripert, Trait pratique de droit civil franqais, t. 3,
2d ed. by M. Picard (Paris: L.G.D.J., 1952) no. 351ff.
McGILL LAW JOURNAL
[Vol. 31
revendication. Soon afterwards the action was made available to all titularies
of real rights giving rise to possession, such as pledgees. That is, even though
the pledgee does not have a right of enjoyment of the pledged object, his
real right to possession was deemed sufficient to sustain revendication.183
The 1804 Codification also permitted titularies of personal rights to
bring an action in revendication in two situations. These were where, under
paragraph 2102(4) C.N., an unpaid vendor reclaims an object from his buyer,
and where, under paragraph 2102(1) C.N., a landlord claims possession of
moveables subject to his privilege. Unfortunately, there is no intellectual
coherence to these exceptions. The former situation, admittedly, is normally
one where a once and future owner seeks immediate physical control of an
object in order to facilitate a recourse in resolution of a sale. 184 But the
landlord never is owner, and never will become owner. The most one can
say is that the lessee’s moveables situated in the leased property are impressed
with some sort of tacit pledge to secure payment of rent due. 8 5
Since Codification, French courts have also been active in broadening
the scope of the remedy. To begin with, by analogy to the right of the landlord
to reclaim moveables removed from leased premises, they extended the
right of revendication to other creditors who could claim an execution priv-
ilege or other preference founded on the idea of a pledge. 186 Then, without
codal support, the courts permitted revendication by depositaries on the
basis of their legal obligation of care, preservation and return. 87
By virtue of these developments, all French authors today assert that,
in practice, the action is no longer simply a petitory action deployed to
vindicate ownership or even a real right. For some, it functions (in certain
well-defined cases) as the equivalent of the “action en r6int6grande” which
is available to certain holders of an immoveable; 18 8 for others it is truly an
omnibus action “ouverte a toute personne qui 6tait en possession et avait
la responsabilit6 de la garde de la chose.”‘ 189
183See Weill, supra, note 121, no. 428.
184This right to revendicate probably survived because, in Roman law and French law prior
to the 1804 Codification, title did not pass to the buyer in a cash sale until the purchase price
was paid. See P-B. Mignault, Le droit civil canadien, t. 7 (Montr6al: Wilson & Lafleur, 1906)
at 143ff.
185See M. Planiol & G. Ripert, Trait pratique de droit civil franCais, t. 12, 2d ed. by E.
Becqu6 (Paris: L.G.D.J., 1953) no. 241.
The most obvious example in modem Quebec law is the right of retention.
186See Mazeaud, supra, note 23, nos 1556-58 for an attempt to synthesize this extension.
187See Cass. civ., 5 janvier 1872, D.P 1872.1.161.
188Bouloc, supra, note 85, no. 4. See Marty & Raynaud, supra, note 23, no. 216 on the
“r6int6grande” or possessory action.
189Legier, supra, note 111, no. 35.
1986]
ENFORCING RIGHTS IN MOVEABLES
43. Absence of Doctrinal Synthesis – While French authors have been able
to discern the basic patterns and rationales for extensions to the Romanist
view of the action, to date none has attempted a synthesis of the purposes
and scope of revendication.’ 90 The same is true of the provisional recourse
known as the attachment in revendication (“saisie-revendication”). 19′ This
absence of synthesis is most evident in the lack of consensus about the
categories of plaintiffs who may bring the action. 92
French authors today commonly catalogue plaintiffs in revendication
simply by list, and only rudimentary functional typologies have been offered.
Some authors sub-divide plaintiffs into three groups: owners and titularies
of principal real rights; persons, such as pledgees and depositaries, who have
responsibility for the care and preservation of an object; and privileged
creditors such as landlords and unpaid vendors who are revendicating
possession. 193 Others categorize potential plaintiffs into four groups: owners
and titularies of principal real rights having a right to follow; pledge creditors
and those with a privilege founded on the idea of a pledge; unpaid vendors;
and persons with only a personal right but having an obligation of care and
preservation. 94
At bottom, this lack of synthesis results from two features of the law
of corporeal moveables unique to France. The proliferation of statutory
property rights protected by particular remedies has removed much pressure
to adapt the action in revendication to modern developments; 95 and the
severe restrictions on the ordinary right to revendicate established by articles
2279 and 2280 C.N. minimize the occasions when a successful action may
be brought, thereby minimizing practical interest in the remedy. 196 It follows
that French sources are of only limited assistance in developing a general
theory of the action in modern-day Quebec.
tre admise dans les cas
‘9The descriptive summary by Bouloc, supra, note 85, nos 1-6 is typical.
’91See Lgier, supra, note 11I, no. 4: “Ia saisie-revendication doit
ofx l’exercice d’un droit de suite est autoris6 en mati6re mobili~re.”
192Compare Ortscheidt, supra, note 84, no. 100: “[]’action en revendication est largement
ouverte. Notamment il n’est pas n6cessaire que le demandeur 6tablisse son droit de propritr;
il suffit qu’il prouve par tous moyens que la chose etait entre ses mains au moment de la perte
ou vol” with Mazeaud, supra, note 23, no. 1627: “[1]’action qui sanctionne le droit de propri6t6,
est laction en revendication (rei vindicatio, rrclamation de la chose). Pour triompher, le deman-
deur d l’action en revendication doit etablir son droit de proprito’.
19 3See Bouloc, supra, note 85, nos 176-78; Vincent, supra, note 127, no. 88bis.
194See IUgier, supra, note 111, nos 4-35.
195See, e.g., Bouloc, supra, note 85, nos 185-226.
196See Marty & Raynaud, supra, note 21, nos 403-5.
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3. The Theory of the Action in Quebec
44. Nature and Purposes of the Action – As in France, the action in reven-
dication has not been subject to systematic doctrinal study in Quebec.197
Yet despite the absence of doctrine, the courts have never been in doubt as
to its general purpose: the primary goal of the action in revendication is the
recovery of possession of a corporeal moveable. 98 As Rinfret J. stated in
Service Finance Corp. v. Decca Radar Canada (1967) Ltd:
La revendication a pour but l’obtention de la possession d’un objet, d’un
bien.199
In other words, courts have without exception acknowledged revendication
as a real action and have consistently required that it be directed towards
the recovery of a corporeal object.200
45. Parameters of the Action – By contrast, it remains uncertain whether
the action in Quebec is essentially petitory. Courts have not attempted an
overall taxonomy of the situations in which the action in revendication may
be brought. Three times in recent years, however, they have taken tentative
steps towards elaborating a general theory. First, in Perreault v. Poirier the
Quebec Court of Appeal suggested the possibility of an action in revendi-
cation of possession in the following terms:
l’num6ration A ‘art. 946 [today article 734 C.C.P] n’est pas limitative car,
pour un, le droit de revendiquer par le possesseur l6gal, plus particuli~rement
contre le voleur, est reconnu dans notre droit. 0o
197Aspects of revendication have, however, been examined closely in the context of other
studies. See, notably, Caron, supra, note 90 at 413-19; O.S. Tyndale, “Stoppage in Transitu”
(1923) 1 R. du D. 117; J.-A.-E. Dion, “Saisie-revendication” (1943) 3 R. du B. 389; Lauzon,
supra, note 140, c. 5. Moreover, brief mention of the action may be found in treatises and
course manuals: see Martineau, supra, note 23 at 71-72; P. Martineau, La prescription (Montr6al:
Presses de l’Universit6 de Montreal, 1977) at 145-80; Mignault, supra, note 28 at 397-98; and
Mignault, supra, note 79 at 357ff.
’98In one case the court permitted the action where it could do no more than declare own-
ership of a corporeal moveable. See Hamelin v. Vulcan Steel Architectural Construction, Ltd
(1950), [1950] B.R. 766, where the court seemed to suggest that in cases where actual recovery
was impossible, the action could also be used simply to establish the right of ownership. See
the notes of Bissonnette J., supra at 770-72 and Gagn6 J., supra at 774.
199(1971), [1971] C.A. 664 at 665.
20At its margins the question whether certain types of intangibles are corporeal has been
hotly debated. For a discussion of whether documents of title or other negotiable instruments
are corporeal objects see, most recently, Chamandy v. Leblanc, supra, note 89; and Morgan,
Ostiguy & Hudon Lte v. Sun Life Assurance Co. of Canada (1975), [1975] C.A. 473.
201(1958), [1959] B.R. 447 at 456-57, rev’d on other grounds (sub nom. Perrault v. Poirier)
(1959), [1959] S.C.R. 843.
1986]
ENFORCING RIGHTS IN MOVEABLES
Then, in Holly M. Ward Lumber Co. v. Amcam Woodcraft Ltd, deciding
an opposition to a seizure in execution by a bank holding a section 88 [now
section 178 of the Bank Act] security, the Superior Court observed:
Ce n’est pas seulement le propri~taire absolu qui peut revendiquer une
chose, mais, en r~gle gbnerale, celui qui a droit A sa possession. Uarticle 734.1
C.P sanctionne ce principe.202
Finally, in Discotheque & Golf Lafontaine Inc v. Lussier, when faced with
an opposition to seizure in execution of a sub-lessee’s goods brought by a
simple lessee, the Superior Court concluded:
I1 ne fait pas de doute que le propribtaire a droit de revendiquer.
[f]n mati~re mobili~re du moins le droit de revendiquer n’est pas limit6 au
seul propribtaire ni m~me au seul d6tenteur de droits r~els.
[On] doit donc conclure que le droit de revendication d’effets mobiliers n’est
pas limit6 aux seuls cas expressement mentionn~s aux codes et qu’il a 6t6
expressement reconnu dans le cas du d6positaire qui ne possMde aucun droit
r~el dans la chose. 20 3
In these three cases the courts rejected a view of revendication as a purely
petitory remedy, even if they did not at the same time elaborate in detail
which titularies of personal or other rights could bring the action.
46. Developing a Theory of the Action in Quebec – While it is common in
France to treat the entitlement to revendicate, as well as the related pro-
cedure, in a merely cursory fashion, these two issues are both important
and complex in Quebec. To begin with, the occasions for ordinary reven-
dication are multiplied because paragraphs 2268(3) and (4) C.C.L.C. do not
automatically impede the revendication of corporeal moveables. 20 4 More-
over, commercial law statutes such as the Bank Act, the Bills of Exchange
Act, the Special Corporate Powers Act and the Act Respecting Bills ofLading,
Receipts and Transfers of Property in Stock,20 5 which create special property
regimes and statutory real rights, do not, as in France, also create special
remedies. The ordinary procedural recourses of the civil law are thus applied
in aid of unorthodox substantive rights.206 Finally, the two Codes are prod-
ucts of two different centuries. While the Code of Civil Procedure tailors
202(1977), [1977] C.S. 237 at 237 [hereinafter Holly M. Ward Lumber].
203Lussier, supra, note 55 at 167-68.
204Compare Caron, supra, note 90 with Ortscheidt, supra, note 84.
205Bank Act, supra, note 49; Bills of Exchange Act, R.S.C. 1970, c. B-5; Special Corporate
Powers Act, supra, note 69; Act Respecting Bills of Lading, Receipts and Transfers of Property
in Stock, supra, note 49.
206For this reason expressions such as “ownership sui generis” tend to proliferate. See Holly
M. Ward Lumber, supra, note 202.
McGILL LAW JOURNAL
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remedies to twentieth-century notions of property in corporeal moveables,
the substantive rights elaborated in the Civil Code are those of an earlier
era. 207
The next part of this text will consider, in consequence, the extent to
which revendication in Quebec is both a petitory and possessory action. It
reviews, successively, which classes of plaintiffs may bring the action, when
the action is lost, and who is the appropriate defendant in an action in
revendication. In considering who is the appropriate defendant, various
incidental proceedings and consequential cross-claims likely to arise in prac-
tice will also be examined. The chapter concludes with an attempt to develop
a general theory of the action.
B. Who May Bring the Action in Revendication?
47. Categories of Potential Plaintiffs – Because neither the Civil Code nor
the Code of Civil Procedure lists in one place all those who may exercise
the action in revendication, a first step towards developing a catalogue of
potential plaintiffs is to generate a typology of the relationships between
person and object recognized by the civil law. The typology which follows
is grounded in the traditional classifications of rights considered in the intro-
duction to this study. It begins by identifying various categories of plaintiffs
on the basis of formal criteria inherent to the law of property. But it also
rests, secondarily, on more functional criteria derived from modem com-
mercial practice and the demands it places on traditional approaches. Not
surprisingly, it is the incorporation of these other criteria that most clearly
reveals the true nature of the action as it is deployed today.
A first group of potential plaintiffs in revendication may be identified
on the basis of whether the claimant is asserting an existing real right (jus
in re) in a corporeal moveable. If revendication is narrowly petitory, only
titularies of real rights may avail themselves of the action. However, because
not all real rights have identical characteristics, for purposes of analysis,
this category has been sub-divided into four. First, the position of ordinary
owners will be examined. Then, the status of titularies of dismemberments
‘of ownership or principal real rights –
usufructuaries, users and titularies
of statutory or contractual real rights – will be considered. Next to be
reviewed is the situation of titularies of accessory real rights. Here, the rights
of pledgees, documentary pledgees, special pledgees, maritime mortgagees,
207This is most apparent in the fact that the depositary appears on the list of those entitled
to seize before judgment under art. 734(1) C.C.R Art. 866 of the 1867 Code, by contrast, did
not provide that the attachment in revendication could be taken by a depositary. In other
words, the 1965 Code of Civil Procedure reflects developments in the cases subsequent to the
1866 Codification, even where the Civil Code has not itself been amended.
1986]
ENFORCING RIGHTS IN MOVEABLES
trustees for bondholders, banks holding security under section 178 of the
Bank Act, transferees of property-in-stock and titularies of statutory or con-
tractual accessory real rights are assessed. Finally, this section examines
those special cases where several of the prerogatives of ownership are allo-
cated to an administrator or representative such that it is difficult to state
where true ownership lies. This group of titularies of “real rights of admin-
istration” includes both “quasi-owners” such as trustees, trust beneficiaries,
mercantile agents, factors and consignees and statutory transferees such as
trustees in bankruptcy and company liquidators. 20 8
The second major group of potential plaintiffs comprises those having
only a personal right in connection with an object (jus ad rem). Once again,
distinct sub-categories may be posited. First, there are those who have a
contractual obligation of care and return of an object, but who also are not
vested with a real right. This category could conceivably comprise install-
ment and conditional buyers in possession and heirs having provisional
possession but, given the potential reality of the rights these holders can
assert, their situation will be treated separately in a review of the position
of titularies of future and eventual rights. This first category includes those
who may, by the terms of the contract or other deed, use the object in their
custody (namely lessees, borrowers for use, income beneficiaries of a trust
in possession, non-owner spouses and owner-debtors of property under seizure).
A further sub-category comprises those plaintiffs vested with an iden-
tifiable claim upon the object as security, and at least a semblance of a right
to follow, but with no real right in the object being revendicated. This
category may be further sub-divided into plaintiffs with physical control
such as retention claimants and sellers asserting the exceptio non adimpleti
contractus, and plaintiffs not actually in physical control such as unpaid
vendors, lessors of immoveables and creditors of tithes.
Finally, there are those who may not use the object to their benefit
(namely depositaries, carriers, innkeepers, mandataries, guardians of seized
goods, sequestrators, trustees and testamentary executors) and those persons
upon whom the law imposes an obligation of surveillance, administration
and representation (namely tutors, curators and advisers) or to whom the
law gives a representative action (namely certain plaintiffs in a Paulian or
in an oblique action).
20sThe term “real right of administration” is, admittedly, unorthodox. It is used here to
describe a category of titulary about which no doctrinal consensus exists. It captures, none-
theless, the essence of the relationship between person and object in each of these cases.
Similarly, the expression “quasi-owner” is used to avoid prejudging the question whether any
of the persons listed is vested with a right of ownership.
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[Vol. 31
A third group of potential plaintiffs is that comprising persons vested
with only a potential or eventual real right grounded in contract. This group
may be sub-divided into two. First, one may consider the situation of those
in physical control of the object: conditional buyers in possession, buyers
under a term in possession, promisees of sale in possession, heirs in pro-
visional possession, and buyers under protected sales. Second, one may
evaluate the claims of potential titularies of real rights typically out of possession:
substitutes, heirs and legatees named by contract of marriage, capital bene-
ficiaries of trusts, future heirs and legatees, prepaying buyers, unpaid sellers
who have delivered and, in certain, cases, donors.
A last group of potential plaintiff is made up of those who have actual
physical control of another person’s property without any pre-existing legal
relationship sustaining this physical control. This group can be divided into
two: there are those with possession such as finders, thieves and purchasers
of a thing belonging to another; and, there are those who are merely holders
such as negotiorum gestores, recipients of an object not due who have become
aware of the error, and creditors who have inadvertently seized the property
of another.
It is apparent that the second through fourth groups of potential plain-
tiffs involve particular examples of the types of new property discussed in
the introduction to this study. That is, they reflect those situations in which
modem practice puts pressure on the classical concept of revendication as
a solely petitory recourse. In the analysis which follows, the right of all
plaintiffs in each group to revendicate will be examined in the abstract. No
reference will be made at this time either to when the right may be lost or
to how competing claims between potential plaintiffs will be resolved. In
other words, this present review will serve to set the outer limits of the
action in revendication by examining exclusively the rights of the plaintiff
A table of potential plaintiffs in revendication organized along the lines
just reviewed appears in an Appendix.
1. Titularies of Existing and Actual Real Rights
48. Revendication as a Petitory Action – Since its Romanist origins, the
action in revendication has always been open to, and has been focused on,
owners. 209 Nevertheless, there has been a consensus in Quebec for at least
a century that any titulary of a real right giving rise to possession of a
corporeal moveable could bring the action.210 The situation of titularies of
209Saleilles, supra, note 39; Jobb6-Duval, supra, note 85.
21 See authors cited supra, note 197. A similar consensus exists in France. See Baudry-
Lacantinerie & Tissier, supra, note 85 at 539ff.
1986]
ENFORCING RIGHTS IN MOVEABLES
real rights not having an immediate right to physical control has, however,
been less certain. Hence, it is necessary to review separately each of the
hypotheses involving an existing and actual real right.
a. Owners
49. Revendication ofDominium – The ordinary owner of a corporeal
moveable may, in principle, revendicate his property from whomever has
wrongful possession of it211 Such wrongful possession may be that of strangers
such as finders and thieves, or of legal officers such as sheriffs and bailiffs,
or even of overholding or wrongfully-holding co-contractants. 212 Thus, in
Pare v. Beaurivage213 the court held that an owner of a boat could reclaim
it even from an individual who, having found it floating on the St Lawrence,
expended considerable sums repairing it. Similarly, in Hydro-Quebec v.
Charbonneau214 a wife, donee by marriage contract of an automobile, was
permitted to bring an opposition to withdraw the vehicle from the seizure
of her husband’s property, on the basis that she could exercise an action in
revendication as owner. Again, in Sybertz v. Atlas Window Manufacturing
Ltd215 the court was prepared to permit an action in revendication by a
pledgor against a pledgee abusing the pledge since, under article 1972 C.C.L.C.
the pledgor remains owner of pledged property. Finally, in O’Cain v. Domina216
the conditional seller was permitted to revendicate abandoned property
from the judicial curator on the basis that abandonment by the conditional
buyer could not prejudice the seller’s title.
The principal difficulties which arise in respect of an owner’s entitlement
to revendicate are related to the more general problems of determining who,
at any given moment, is owner, and of deciding who, at that time, has the
best right to immediate possession of the object. Six issues merit special
attention: first, the characterization of the rights of holders of documents
of title and negotiable instruments; second, the locus of title in contracts
translative of ownership –
sale, exchange, gift, loan for consumption; third,
21’Similarly, where the owner has assigned his rights or where a third party is subrogated
into his rights, that third party may also revendicate under the same conditions as the owner
see Wawanesa Mutual Ins. Co. v. Plante (1967), [1967] C.S. 540.
2 2For various hypotheses, see Ottawa Beach Motor Co. v. Barrt (1928), 45 B.R. 157; Laforest
et Frres Inc. v. Dagenais (1960), [1961] C.S. 415; Larivire v. Cruickshank (1960), [1961] B.R.
137; Cassils v. Crawford (1876), 21 L.C. Jurist 1 (Q.B.).
213(1970), [1971] C.S. 258.
214(1968), [1968] R.R 296 (Prov. Ct). But compare Beauchamp v. Verreault (1966), [1967]
R.P. 39 (Prov. Ct) where such an opposition was dismissed on the basis that the donation was
mortis causa and therefore the husband was still owner.
215(1970), [1970] R.P 64 (Sup. Ct). On the facts, however, the plaintiff’s attachment in
revendication was quashed on the grounds that the affidavit in support was insufficient.
216(1907), 8 Q.PR. 172 (Ct Rev.).
McGILL LAW JOURNAL
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the locus of title in matters relating to successions; fourth, the conditions
under which ownership may be acquired by prescription; fifth, the circum-
stances under which an existing right of ownership may be extinguished
through accession, prescription or operation of law; and sixth, the situation
where an owner has conceded a real right of enjoyment to a co-contractant
such as a usufructuary. Because the fourth issue is correlative to the fifth,
and because the fifth and sixth hypotheses arise in respect of any plaintiff’s
right to revendicate, they will be considered in detail separately in the next
two sections of this study. Problems relating to the characterization of the
rights of endorsees of documents of title and to the transfer of title in con-
tracts and in successions are, however, fundamental to defining even the
ordinary owner’s right to revendicate. 217
50. Documents of Title and Negotiable Instruments – Apart from the ordi-
nary regimes for passing ownership and possession of corporeal moveables
elaborated by the Civil Code, paragraph 1979(2) C. C.L. C. refers to a special
statutory device which can be deployed for transferring ownership. Under
An Act Respecting Bills of Lading, Receipts and Transfers of Property in
StockAct218 a bill of lading or warehouse receipt may be endorsed to a third
party as collateral security.219 If, however, the endorsement of a bill or a
receipt (or for that matter any negotiable document of title) occurs in the
context of a sale (or other contract translative of ownership), the endorsee
becomes owner of the underlying goods and the endorsement constitutes
delivery.220 Thereafter, the endorsee may revendicate from the custodian of
the goods under the same conditions as the prior owner (the endorser). It
follows that endorsement of a document of title in a contract translative of
ownership does not vest the endorsee with a special type of property right
in the underlying goods; it is no more than a modality for transferring
ownership and giving possession.
Of course, the document itself is a species of assignable instrument
under the Bills ofExchangeAct.221 Moreover, the rights represented by many
217 0f course, these three problems also would affect the transfer of any real right in property
(e.g., usufruct, pledge, etc.).
The situation of seieral potential plaintiffs sometimes characterized as owners sui generis
(e.g., as in trusts, trust deed security, security under s. 178 of the Bank Act) will be dealt with
below. Similarly, factors, consignees and mercantile agents will be treated as having a species
of non-ownership real right. Finally, the special nature of the fiduciary substitution requires
separate treatment, even though at all times either the institute or the substitute is a true owner.
218Supra, note 49.
219See R. Demers, “La Loi sur les connaissements, les regus et les cessions de biens en stock:
Quelques probl~mes substantiels” (1985) 26 C. de D. 493 at 503-14. See also R.J. Wood, “The
Pledge of Documents of Title in Ontario” (1984) 9 Can. Bus. L.J. 81.
2This is the standard mode of sale in FOB and FAS contracts. See Bivansa Inc. v. House
of Bradley Inc. (1977), [1977] R.L. 373 (Sup. Ct).
221Supra, note 205.
1986)
ENFORCING RIGHTS IN MOVEABLES
cheques, bills, notes and other negotiable instruments (including bills of
lading and warehouse receipts) as well as bank notes are deemed under the
civil law to be corporeal. 222 Hence, not only may the piece of paper be
revendicated as such, but the underlying incorporeal rights or corporeal
property it represents is controlled by the holder of the instrument. 223
Where the Bills ofExchange Act explicitly regulates the rights evidenced
by a bill or note in a fashion different than that of the civil law, the status
of any plaintiff to revendicate will be governed by that Act.224 By contrast,
where the Code or a provincial statute deems claims and other incorporeal
rights to be corporeal, the objects they represent or the claims they evidence
are capable of revendication by the endorsee or holder of the document.
Concomitantly, the value reflected in the instruments themselves, as cor-
poreal property, is subject to acquisitive prescription or the rules of article
2268 C.C.L.C.225
51. Contracts Translative of Ownership: The Sale of Moveables – According
to article 1472ff. C.C.L.C. sale is a consensual contract: title passes to the
buyer immediately even in cases where the seller retains physical custody
of the goods sold.226 From the moment title passes, the seller loses any right
he may have had (as owner) to revendicate the property from his buyer or
from any other person.227 In parallel fashion, the buyer may from this moment,
in principle, claim possession and revendicate the property from the seller
and from any third party into whose hands it may pass. 228
There are, however, several contractual and legal variations which mod-
ify the rule of consensualism as applied to the sale of corporeal moveables.
For example, where fungibles are sold, title does not pass until they have
been identified and the purchaser has been notified. 229 Again, in the contract
222See art. 1573 C.C.L.C.; Chamandy v. Leblanc, supra, note 89.
223Rn6 T Leclerc Inc. v. Perreault (1969), [1970] C.A. 141 at 145.
224J.D. Falconbridge, Banking and Bills of Exchange, 6th ed. (Toronto: Canada Law Book,
1956) at 435ff.
475.
mitigations apport6es au principe par le droit civil qu6b6cois” (1967-68) 9 C. de D. 273.
225Morgan, Ostiguy & Hudon Lt& v. Sun Life Assurance Co. of Canada, supra, note 200 at
226See H. Brun, “Les origines du consensualisme en matire de transfert de propri6t6 et des
2271t will be seen that he has such rights in certain cases as an unpaid vendor (arts 1998-
2000 C.C.L.C.) or even as a person with an obligation of care and delivery (arts 1498-1500
C.C.LC.).
228See Granger Frbres Lte v. Marbo Plastic Co. (1957), [1958] C.S. 333. This principle is
subject to the exceptions of art. 1027 C.C.L.C. and of the seller’s right to refuse delivery under
arts 1496-1498 C.C.L.C.
229Arts 1026 and 1474 C.C.L.C. See Nault v. Canadian Consumer Co. (1981), 1 S.C.R. 553,
38 N.R. 205; and Simard v. Quebec Veneer Industries Co. (1943), [1945] R.L. (N.S.) 203 (Sup.
Ct). See also G.E. Le Dain, “The Transfer of Property and Risk in the Sale of Fungibles” (1954-
55) 1 McGill L.J. 237.
REVUE DE DROIT DE McGILL
[Vol. 31
of enterprise, barring a contractual stipulation to the contrary, title does not
pass where the workman supplies materials until actual delivery.230 In both
these cases, the seller in possession retains title notwithstanding article 1472
C.C.L.C.
Other variations permit a seller to revendicate as owner even in cases
where he may have delivered physical control of the goods to his buyer.
Two hypotheses merit special consideration. These are, first, where a seller
retains title to the goods after delivery in a sale upon trial under article 1475
C.C.L.C. or by means of a suspensive condition, a promise of sale, a sale
with a term, or an installment sale 231 and, second, where the sale is dissolved
under articles 1543 and 1544 C.C.L.C. or by virtue of a contractual term.
52. Sales Under Suspensive Condition, Promises of Sale, Sales with a Term
and Consumer Installment Sales – Where a seller stipulates in the contract
of sale that title to the property sold shall not pass until full payment of the
purchase price (or until some specified condition is realized) he may reven-
dicate as owner not only from his buyer but also from any third party who
may acquire or otherwise gain possession of the goods.2 32 Thus, in Acces-
sories d’Autos Laurentien Lte v. Churchill Constructors233 the installment
seller of automobile parts was able to revendicate these from a third party
who had purchased them from the installment buyer.234 In addition to these
individualized contractual reservations of title, article 1475 C.CL.C. pro-
vides that the sale of objects on trial is presumed to be a sale under sus-
pensive condition, with title remaining in the seller. Hence, the seller upon
trial may also revendicate from a wrongfully-holding buyer or third party.235
ed. (Montral: Th6mis, 1980) at 84-94.
[1979] C.A. 206; Gravel v. Deziel (1964), [1965] C.S. 257.
230See art. 1684 C.C.L.C. See also Duchesneau v. Roy (1976), [1976] C.S. 387, rev’d (1979),
23’See Rubenstein v. Couture (1964), [1965] C.S. 158. See also M. Pourcelet, La vente, 4th
232Art. 1473 C.C.L.C. refers back to the general rules on obligations. For present purposes
it is not necessary to determine the true characterization of an installment sale, that is, a
conditional sale where the condition attaches to one of the fundamental elements of the con-
tract. Many argue that such sales are merely promises of sale with delivery: see M. Tancelin,
Les obligations, 2d ed. (Montral: Wilson & Lafleur/Sorej, 1984) at 163ff.
233(1973), [1973] R.P 216 (Sup. Ct). See also Joyalv. Murphy Automobile Inc. (1955), [1956]
C.S. 311; Gagn6v. Daigle(1918), 54 C.S. 239; Moisset Lte v. Castonguay (1939), 68 B.R. 128;
Rocheleau Auto v. Guay (1963), [1963] B.R. 770; Laurentide Finance Co. v. Paquette (1966),
[1966] R.P. 416 (Sup. Ct); Sauv6 v. Guildhall Insurance Co. (1961), [1961] B.R. 733.
234Nevertheless, in order for the seller to be able to revendicate he must be able to identify
his goods. See Re Murray Bay Sports Enr. (13 June 1979), Quebec 200-09-000036-779 (C.A.).
Nevertheless, it may be that where identical fungibles are mixed it is sufficient to show that
all were delivered by the same seller. SeeAlcools de commercelnc v. Corp. deproduits chimiques
de Valleyfield (1985), [1985] C.A. 686, Turgeon J. dissenting on another point [hereinafter
Alcools de commerce].
235A similar result follows in promises of sale, even when accompanied by delivery. Not-
withstanding article 1478 C.C.L.C. the parties may stipulate that title will pass only at a future
19861
ENFORCING RIGHTS IN MOVEABLES
Notwithstanding the general rules of the Civil Code, under the Con-
sumer Protection Act 236 a special regime is established for consumer install-
ment contracts. First, in all cases where title is reserved (e.g., conditional
sales, promises of sale, sales with a term for transfer of title), section 136ff.
subject the seller’s right to revendicate from the buyer to judicial scrutiny.237
Since the seller remains owner, however, he could continue to revendicate
from wrongfully-holding third parties.238 Second, any installment sale which
does not meet the requirements of the Act is deemed to be an ordinary sale
with a term for payment. In other words, the vendor is deemed no longer
to be owner and title to the goods passes immediately to the buyer.239 It
follows, in such cases, that the seller loses his right to revendicate as owner
not only as against his buyer but also, presumably, against third parties. 240
53. Dissolution or Resolution of a Sale – A seller may also become entitled
to revendicate as owner when he exercises his right under article 1543 C. C.L.C.
to dissolve the sale for non-payment of the purchase price,24 1 or under article
date. See, generally, Pourcelet, supra, note 231 at 17-40; T. Rousseau-Houle, “Les rcents
dveloppements dans le droit de la vente et du louage de choses au Quebec” (1985) 15 R.D.U.S.
307 at 313-44. Closely analogous to conditional sales under suspensive condition are sales
where the transfer of property is deferred by a term. Until the arrival of the term, the seller
remains owner and his position is the same as that of a conditional seller who retains title.
See Mazeaud, supra, note 23, nos 1393-94.
236See supra, note 151.
237See also ibid., ss 14 and 105-10.
238See Boucher, supra, note 105; see also Pichv. Laurentide Finance Co. (1982), [1983] C.A.
239CPA, supra, note 151, s. 135. Sales with a term are governed by arts 1089-1092 C.C.L.C.
Since s. 135 is identical in thrust to former arts 1561a-1561e C.C.L.C. the cases on this point
should still be relevant. See, e.g., CommercialAcceptance Corp. Ltd v. Stolzberg (1968), [1969]
R.P. 37 (Prov. Ct); Faubert v. LamarreFrres Inc. (1968),[1969] R.P. 187 (Prov. Ct); Cie Lgar6
v. St-Amant (1961), [1962] C.S. 29; Syndicat de St-Henri Inc. v. Barklay (1956), [1957] R.L.
35 (Sup. Ct).
301.
24OHe would also lose his ordinary right to revendicate (both as against his buyer and as
against third parties) as an unpaid seller since he would have given a term. See art. 1999
C.C.L.C. The seller could, however, revendicate from his buyer, but ex hypothesi not from
third parties who contract with his buyer, as owner if he were to seek dissolution of the sale
under art. 1543 C.C.L.C. In such cases he would have to follow the procedure set out in s.
139ff. of the CPA, ibid.
241If the debtor goes bankrupt the recourse must be exercised within 30 days of delivery: see
art. 1543(2) C.C.L.C. This right is also independent of the right of revendication given to
unpaid sellers who have passed title, and it is not limited by the terms of arts 1998-2000
C.C.L.C. See Mercure v. Philippe Beaubien et Cie, supra, note 170; Re Beatrice Pines Ltd,
supra, note 170; Canadian Javelin Ltd v. Atlas Steel Corp. (1973), [1973] C.S. 779; E & W.
Sichelschmidt v. H. Nickel Industries (1975), [1976] C.S. 142.
McGILL LAW JOURNAL
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1544 C.C.L.C. for his buyer’s failure to take delivery of goods sold,242 or by
virtue of a contractual resolutory condition for his buyer’s breach of con-
tract,243 or by virtue of a legal right of resolution.2 44 Once the sale is dis-
solved, resolved or annulled the seller retroactively reacquires ownership
and may revendicate as an owner.245
There are, however, certain restrictions on the seller’s right to dissolve
a sale. Article 1543 C.C.L.C. requires that the goods still be in the possession
of the buyer in order for dissolution on the basis of a failure to pay the
price to be possible. 246 While this requirement has been interpreted to mean
simply defacto possession, the better position would seem to be that, absent
bankruptcy, it is juridical dispossession under any condition which extin-
guishes the right to seek dissolution. 247
Thus, the seller could seek dissolution of the sale and revendicate the
goods not only from his buyer, but also from a thief, a finder, his buyer’s
lessee or installment purchaser, and so on.248 Under article 1544 C.C.L.C.
dissolution occurs plano jure where the buyer has not paid the price and
refuses to take delivery. The only circumstance in which such revendication
242Under art. 1544 C.C.L.C. the revendication will always be against a third party since ex
hypothesi the buyer has not taken delivery. Prior to dissolution, the seller would attempt to
revendicate as a retention claimant asserting the exceptio non adimpleti contractus. See Inter-
provincial Lumber Co. v. Matapedia Co. (1972), [1973] C.A. 140.
C.A. 587; Jocami Inc. v. Joly (1982), [1982] C.S. 637.
243See Baudouin, supra, note 46, nos 798-800.
244Art. 1065 C.C.L.C. The seller also would reacquire ownership when the sale is annulled
for a defect of form or substance. See Ackroyd Bros (Canada) Ltd v. Brackon Products Inc.
(1948), [1948] C.S. 407; Enterprises Maurice Canada Lte v. Cossette et Frbres Lt~e (1980),
[1980] C.S. 895. See also Baudouin, ibid., nos 206-29.
245Thibault v. Perron-Lanthier (1968), [1969] B.R. 138; Levasseur v. St-Onge (1979), [1979]
246See lUgier, supra, note I 11, no. 8; Pourcelet, supra, note 231 at 168-69; T. Rousseau-Houle,
Precis du droit de la vente et du louage (Quebec: Presses de l’Universit6 Laval, 1978) at 150-
51; Y. Goldstein, “A Bird’s Eye View of Conflicting Claims” [1981] Meredith Mem. Lect. 88
at 96-97; KS. Atlas, “The Vendor of Moveables in Quebec: His Protection and Privileges”
(1982) 42 R. du B. 597 at 599 and 605-07.
247Thus, if the property remains in the hands of the purchaser but is sold, say under an
ordinary contract of sale, then the rules of the Civil Code respecting protected sales apply and
the original seller does not lose his right to seek dissolution but may be deprived of a right to
revendicate. There are particular problems in respect of trustees in bankruptcy and s. 178
security under the Bank Act. See Bock et Ttreau Lte v. Fonderie LIslet Lte (1970), [1971]
C.S. 379; and Knitrama Fabrics v. K &A. Textiles (1984), [1984] C.S. 1202, currently on appeal
to Que. C.A. Most recently the Court of Appeal has decided that a notice of taking of possession
by a trustee for bondholders extinguishes a seller’s right of resolution. See also Alcools de
commerce, supra, note 234.
2481n certain implausible cases the seller could revendicate as unpaid seller, but could not
dissolve the sale in order to revendicate as owner. For example, a buyer who gives the property
to a third party extinguishes the right of dissolution but not the right ofrevendication as unpaid
seller. See arts 1543 and 1999(3) C.C.L.C.
1986]
ENFORCING RIGHTS IN MOVEABLES
could occur would be where a third’party wrongfully takes the goods from
the seller.249
The restrictions on the legal right of dissolution established by articles
1543 and 1544 C.C.L.C. apply only to dissolution for non-payment of the
purchase price and for failure to take delivery. A seller may also exercise a
legal right of resolution under article 1065 C.C.L.C. or may contractually
stipulate for a right of resolution under article 1079ff. C.C.L.C., so long as
the condition attaches to a future and uncertain event other than payment
or delivery.250 In both these situations, the seller would be claiming as owner,
and could revendicate as such, subject in certain cases to rights acquired
by third parties in the interim.25’ Of course, the Consumer Protection Act
also imposes special limits on the right to dissolve or resolve consumer sales
and thereby also limits the seller-owner’s right to revendicate in several
circumstances. 252
54. Exchanges, Loans for Consumption and Donations Inter Vivos – Where
an owner purports to transfer ownership of a corporeal moveable by exchange,
by loan for consumption 253 or by gift inter vivos, the same general principles
as those governing sale will apply.2 54 Nevertheless, certain rules relating to
transfer of title are modified slightly in gift contracts. For example, articles
779 and 782ff. C.C.L.C. restrict the types of conditions which may be enforced
in gifts inter vivos. Most of these limitations, however, do not affect the
nature of the donor’s or donee’s title as owner and consequently they do
not require special consideration.255
On the other hand, some provisions relating to gifts alter the basic
regime of contracts translative of ownership. Thus, rules requiring either a
notarial deed or the physical transfer of property to the donee mean that
249Compare Gauthier v. Provencher (1966), [1966] R.L. 572 (Prov. Ct).
250See Re Beatrice Pines Ltd, supra, note 170. See also Rousseau-Houle, supra, note 235.
25 These would normally be acquired under arts 1488ff. and 2268ff. C.C.L.C.
252See CPA, supra, note 151, s. 14. Presumably until dissolution the seller also could not
revendicate as against third parties.
253See art. 1778 C.C.L.C. See also Bissonnette v. Bouchard (1949), [1949] C.S. 259. The most
usual cases of loan for consumption involve the loan for money, including the placement of
money in a bank account. See Vanier v. Kent (1902), 11 B.R. 373.
254See arts 1596 and 1599 C.C.L.C.; and CPA, supra, note 151, s. 14 as concerns exchange.
For loans for consumption see arts 1776, 1778 and 1781 C.C.L.C. For gifts inter vivos, see art.
795 C.C.L.C. In other words, exchanges, loans for consumption and gifts may be subjected to
the same modalities as sale.
255See arts 811(2) and 816(2) C.C.L.C. Moreover art. 811(3) C.C.L.C. incorporates the general
rules relating to the nullity of all contracts. See, generally, G. Brire, Les liberalits: Donations,
testaments, substitutions etfiducie, 8th ed. (Ottawa:
tditions de l’Universit6 d’Ottawa, 1982)
at 90-93.
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[Vol. 31
gifts are not, strictly speaking, consensual contracts. While, with the excep-
tion of the don manuel, delivery is not necessary, the consent of the parties
is insufficient to transfer title. A notarized deed of gift and of acceptance is
an essential formality.256 Moreover, rules relating to resolution for breach
of contract or to revocation for ingratitude do not always produce retroactive
effect, with the result that the donor frequently is prevented from reacquiring
title.257 Again, the rules relating to gifts of future property and donationes
mortis causa in contracts of marriage depart from the general principle
requiring donor divestment. Article 823 C.C.L.C. provides that gifts of pres-
ent property in contemplation of death are, in principle, irrevocable. 25 8 Yet
the same article states that until death the donor remains owner of the
property given.259 Hence, even though it appears that the donor has divested
himself of a part of his right of ownership, it is clear that only the donor
has the right to revendicate as owner.260
55. Successions – For obvious reasons, the right of a deceased owner to
revendicate his corporeal property is not problematic. From the moment
of death, the initiative in proceedings in revendication will be taken by the
ab intestate heir, legatee, executor or trustee, as the case may be.26 1 Most
often this revendication will be as owner,262 although it may also be as legal
ingratitude.
256Some appear to claim that, as between donor and donee, consent alone is sufficient to
transfer title: see Bri~re, ibid. at 122-23. This cannot be the case. Rather art. 777(2) C.C.L.C.
means that consent as expressed in a notarized deed is sufficient, without the need for delivery.
257See art. 816(1) C.C.L.C. But compare arts 811-815 C.C.L.C. on the revocation of gifts for
258But see art. 824 C.C.L.C.
259The same rule applies to gifts of future property by marriage contract whether mortis
causa or inter vivos, see Beauchamp v. Verreault, supra, note 214. It does not, however, affect
gifts inter vivos of present property in marriage contracts. In such cases the donee immediately
acquires ownership: see Hydro-Quebec v. Charbonneau, supra, note 214.
260In other words, the donee of a donatio mortis causa and of future property by contract
of marriage has only a species of future or eventual right in the objects given. Where the donor
provides for an immediate gift stipulating, however, his death as a term, the gift may be made
by notarial deed outside a marriage contract: see St-Jean v. Berthiaume (1973), [1973] C.A.
1029; and the comment by R. Comtois, “La remise de dette conditionnelle au dec~s est-elle
une donation A cause de mort?” (1975) 78 R. du N. 97. Once again, the donor remains owner
until the term is over see Poirier v. Poirier (1975), [1975] C.S. 465.
261See arts 607, 891, 918 and 981b C.C.L.C.
262The expression “owner” is meant to encompass also non-owners who have immediate
rights of enjoyment in the deceased’s property. It does not include the Crown, which is owner,
but which does not have seizin. See arts 607 and 639 C.C.L.C.; and A. Mayrand, Lessuccessions
ab intestat (Montr6al: Presses de LUniversit6 de Montr6al, 1971) nos 45-64; J.C. Smyth, “Seizin
in the Quebec Law of Successions” (1956-57) 3 McGill L.J. 171. See also Jean v. Gagnon
(1944), [1944] S.C.R. 175, [1944] 3 D.L.R. 277. Prior to being put in possession the Crown
cannot revendicate as owner, but must protect its rights through the public curator acting as
the provisional administrator of the succession: see Mayrand, supra, nos 198-203.
1986]
ENFORCING RIGHTS IN MOVEABLES
depositary263 or as a provisional administrator.264 In all cases, the Succession
Duty Act 265 postpones effective pursuit of judicial remedies until an author-
ization to dispose has been obtained.266 Finally, where the defendant is not
a third party, but a person who (wrongly) claims to be an heir, the recourse
to recover a corporeal moveable need not be in revendication per se, but
may also be framed as the action for recovery of an inheritance. 267 This
action differs from the action in revendication in that it is directed to the
recovery of all property – moveable or immoveable, corporeal or incor-
poreal – of the succession, in that it is not necessary for the plaintiff to
establish any title to property other than his status as heir and in that it is
prescribed by thirty years.
The Civil Code provides, however, for two situations where an owner
presumed dead may acquire or reacquire ownership of property transferred
to his heirs or legatees. These occur when he reappears either following a
declaratory judgment of death or following an extended absence. In the
former case, article 73 C.C.L.C. provides that the person declared dead
recovers his property in its actual condition as well as the price of what has
been sold. In other words, even though the reappearance automatically rein-
vests him with ownership, the declaratory judgment of death is not annulled
retroactively. A similar result is produced when, under articles 100 and 101
C.C.L.C., an absentee reappears after provisional possession has been declared
absolute.
In both cases, the person judicially declared dead or the absentee reputed
dead reacquires ownership of his property without judicial process from the
moment of the return. He may thus revendicate it from his presumptive
heirs who have been given possession and, subject to general limitations on
revendication, from wrongfully-holding third parties. Of course, by virtue
of article 71 C.C.L.C., until a declaratory judgment is given, or by virtue
of article 98 C.C.L.C., until thirty years absence or one hundred years since
263As in the case of testamentary executors and trustees. See arts 918 and 981b C.C.L.C.;
and Banque Canadienne Nationale v. Coulombe (1965), [1966] B.R. 780; R. Comtois, Case
Comment (1966) 69 R. du N. 241.
2
64As in the case where the public curator is named to a vacant succession: see arts 684-688
C.C.L.C.; the Public Curatorship Act, L.R.Q. c. C-80; and Mayrand, supra, note 262, nos 292-
300.
265R.S.Q. c. D-13.2, s. 55.
266Compare Charron-Picard v. Tardif (1960), [1961] S.C.R. 269 with Bilodeau v. Bilodeau
(1974), [1974] C.S. 159 and Gagnon v. Gagnon-Beaulieu (8 July 1982), Hauterive (Baie-Comeau)
655-05-000082-80 (Sup. Ct).
267See Mayrand, supra, note 262, no. 234. For illustrations of this action, see Houde v.
Marchand (1912), 21 B.R. 184 at 189; and Lamontagne v. Boivin (1965), [1966] B.R. 295. See
also art. 106 C.C.L.C. for the only codal reference to this action.
McGILL LAW JOURNAL
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birth have elapsed, the person presumed dead or the absentee remains owner
of his property.268
From the above analysis it
56. Scope of Revendication of Ownership –
follows that, in addition to and independently of any right to seek specific
performance of a contract to deliver or to return corporeal moveable prop-
erty, an owner who establishes actual title may, in principle, exercise an
action in revendication against all wrongful holders of his property.2 69 The
action may be brought against those with whom the owner has dealt con-
tractually (where the owner has a right to possession under the contract),
against third parties who may have acquired the goods from the co-con-
tractant (again where the owner has a contractual right to possession), or
against any other third party who has wrongful possession or detention of
the goods. In other words, apart from restrictions on the right to revendicate
from a co-contractant set out in special statutes such as the Consumer Pro-
tection Act, and subject to the rights of good faith purchasers under para-
graphs 2268(3), (4) and (5) C.C.L.C., proof of one’s status as owner is sufficient
to ground a successful action in revendication. 270
b. Titularies of Principal Real Rights
57. Codal Principal Real Rights – Because revendication is an action with
petitory characteristics, courts have long held that it is equally available to
titularies of real rights of enjoyment. 271 The status of titularies of principal
real rights in corporeal moveables to revendicate is based on the fact that
a real right of enjoyment at once comprises a right to follow 272 and is a
right which is capable of possession.273 In Quebec, while no article of the
2685ee P. Azard & A.E Bisson, Droit civil quebecois, t. 1 (Ottawa: tditions de l’Universit6
d’Ottawa, 1971) nos 56 and 56bis. Of course, during the absence the administrators of the
property of the absentee and his heirs in provisional possession may exercise powers as admin-
istrators: see arts 91 and 96 C.C.L.C.
269It is to be remembered that where a person loses his rights in a corporeal moveable by
virtue of a change of nature (i.e. immobilization by nature), an accession or confusion, or by
virtue of prescription, he will not be an owner. On the other hand, the various means by which
ownership may be acquired should be recalled: prehension, accession, occupation, prescription,
succession, will, contract and statutory transfer. Finally, it should be remembered that the rules
relating to the transfer of ownership in corporeal moveables apply with only minor modifi-
cations to the transfer of other real rights.
27OFor the situation involving a competing recourse in revendication by a person with a real
right to possession less than ownership, e.g., a usufruct, see Kimber v. Judah, supra, note 107.
See also Mazeaud, supra, note 23, no. 1667.
27’Compare art. 771 C.C.R in respect of immoveables: “The owner of an immoveable or
immoveable real right may, by petitory action, have his right of ownership recognized,” [empha-
sis added]
272See .ogier, supra, note 111, no. 8.
273Marty & Raynaud, supra, note 23, nos 408, 74 and 13. See also art. 443 C.C.L.C.
19861
ENFORCING RIGHTS IN MOVEABLES
Civil Code explicitly assigns the action to all titularies of principal real rights
in moveables, paragraph 734(1) C.C.P confirms that at least usufructuaries
may revendicate.
The Civil Code regulates explicitly only two principal real rights less
than ownership which may be claimed in corporeal moveables: usufruct
and the right of use.274 Articles 487-489 C.C.L.C. analogize the right of use
to that of usufruct and most authors see the right of use as a diminished
usufruct.275 It would follow, therefore, that even though paragraph 734(1)
C.C.P mentions only usufructuaries, the right of use ought also to give its
titulary a right to revendicate. Both dismemberments presuppose a right to
physical control and use of property which has an independent footing. 276
Apart from usufruct and use, which are regulated in detail, the Code
adverts to at least one other real right of enjoyment: the right of superficies.277
Presumably, if the courts were to recognize the possibility of a right of
superficies in moveables, the titulary of a superficial right could revendicate
the object upon which his right bears.278
58. Statutory and Contractual Principal Real Rights – The titulary of any
statutory or contractual real right of enjoyment in a corporeal moveable
also ought to be vested with a right to revendicate. Thus, where special
legislation creates principal real rights in corporeal moveables without at
the same time providing for nominate remedies to enforce these rights, the
action should be available. Again, to the extent that principal real rights in
274Art. 446 C.C.L.C. contemplates usufruct of immoveables and moveables and art. 487
C.C.L.C. suggests the same for a right of use. Emphyteusis may be claimed only on immove-
ables: see art. 567 C.C.L.C.
275See, e.g., M. Cantin Cumyn, De l’usufruit, de l’usage et de l’habitation (Qu6bec: SOQUIJ,
1985) no. 142 and sources cited therein.
276SeeKimberv. Judah, supra, note 107. See also ibid., nos 10 and 37-53; and Cantin Cumyn,
supra, note 72, nos 8-14.
277See J.-G. Cardinal, Le droit de superficie (Montrbal: Wilson & Lafleur, 1957); and Cantin
Cumyn, supra, note 50, who argues convincingly for the characterization of the right of super-
ficies as a right of ownership in the construction coupled with a real right less than ownership
in the soil.
278It would appear, however, that all writers see the right of superficies as only applicable to
immoveables. That is, they consider it to be no more than a vertical subdivision of a given
parcel of land. See Cardinal, ibid., no. 27; art. 415 C.C.L.C. and former art. 521 C.C.L.C.
Nevertheless, if the right is understood more generally as being grounded in an owner’s
renunciation of the right of accession, then it could be seen to lie over moveables. Hypothet-
ically, the owner of an aircraft engine might have a superficial right in the wing owned by
someone else. If such were the case, the engine owner ought to be able to revendicate from
wrongfully-holding third parties both the engine (as owner) and the wing (as the titulary of a
superficial right).
REVUE DE DROIT DE McGILL
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corporeal moveables may be created by contract, 279 the titulary of such a
contractual right should also be permitted to revendicate.
It is not easy to conceive of examples of either statutory or contractual
principal real rights of enjoyment in corporeal moveables. 280 Today, the most
plausible example of a contractual real right of enjoyment would be the
financial lease under article 1603 C.C.L.C. and paragraphs 173(1)0) and
193(l)(b) of the Bank Act.28 1 While this contract may also be characterized
as the use of ownership as security (with the lessee obtaining only a personal
right as against the lessor), the rights of enjoyment exercised by financial
lessees are so extensive and so intimately connected to the property leased
that they could conceivably be considered as comprising a real right.28 2 To
date, however, no court has pronounced on the status of a financial lessee
to revendicate from a wrongfully-holding third party.283
59. Scope ofRevendication by Titularies of Principal Real Rights – At least
insofar as third parties are concerned, the regime of revendication available
2790n the possibility of such contractual real rights generally, see Matamajaw Salmon Club
v. Duchaine, supra, note 50; and, most recently, Boucher v. R., supra, note 50, both of which,
however, concerned rights in immoveables. For a detailed discussion of this point, see Cantin
Cumyn, supra, note 50. If courts were to conclude that the notion of a superficial right could
only apply to immoveables, then the example raised in note 278 could be considered as involv-
ing a contractual real right of enjoyment.
28The only example of such a statutory right might be that created by the Cultural Property
Act, R.S.Q. c. B-4, ss 17, 19, 22 and 31, which seems to vest something like a real right in the
government. These sections permit the Minister to control the physical displacement, the
alienation, the acquisition and the use of such property.
However, by contrast with the right ofusufruct or use, this right is not a real right of enjoyment
since the owner, usufructuary or user (and not the Minister) remains in possession. On the
other hand, the Minister is vested with a right of pre-emption in certain cases, and, in France,
such rights have been held to constitute real rights. See C. St-Alary-Houin, Le droit depreemp-
tion (Paris: L.G.D.J., 1979) at 231ff. In any event, s. 19 ofthe Act explicitly permits the Minister
to revendicate lost or stolen cultural property.
281See R. Demers, Lefinancement de l’entreprise: Aspects juridiques (Sherbrooke: tditions
de la Revue de droit de l’Universit6 de Sherbrooke, 1985) at 287-311.
28 2For an analysis of the financial lease as a real right see R.A. Macdonald, “Is the Hypothec
on Moveables a ‘Security Interest’?” (1986) 11 Can. Bus. L.J. [forthcoming]. If one were to see
the financial lease as a contractual principal real right, its closest analogue in terms of the
relationship of lessor and lessee probably would be emphyteusis. It is not without interest that
the terms “lessor” and “lessee” are used to describe the parties to an emphyteutic lease. See
arts 567-582 C.C.L.C.
283Since art. 1603 C.C.L.C. excludes all the rules “Of the Lease of Things” from the financial
lease, presumably courts will seek characterization analogies elsewhere in the Code. In any
event, they have already held that an improperly constituted financial lease falls under the
ordinary rules of the Code. Equilease Ltee v. Bouffard (1978), [1979] C.S. 191. But they have
also held that true financial leases are such as to give the lessee and not the lessor a right to
insurance monies upon loss: 1AC Ltee v. Wolfe (1979), [1979] C.P. 361 at 365-66.
1986]
ENFORCING RIGHTS IN MOVEABLES
to titularies of principal real rights is similar to that of owners. Usufrtc-
tuaries, users or other titularies may revendicate both as against wrongfully-
holding co-contractants (for example, lessees, depositaries and borrowers),
and as against third parties. They may also revendicate as against the bare
owner or any other individual who wrongfully holds an object upon which
they have an immediate right to possession. 284 In other words, because
dismemberments are jus in re, they afford their titulary the status to assert
his right not only against wrongful holders who deny his possession, but
also against wrongful holders who are denying someone else’s possession or
detention of the object upon which his right bears.
c. Titularies of Accessory Real Rights
60. Accessory Real Rights – The right to revendicate has also been open,
historically, to titularies of accessory real rights in corporeal moveables, even
though such rights give rise neither to a true right of enjoyment nor to a
complete right to follow. As evidenced by the prohibition on hypothecs over
moveables, excepting maritime mortages,2 85 the 1866 Code envisioned that
ordinary accessory real rights in moveables would be possessory.286 Never-
theless, in recent years a number of documentary and non-possessory secu-
rity devices over moveables have been added to the Code. Because the
relationship of owner and secured creditor varies according to who has
physical control of the secured collateral, it is necessary to examine sepa-
rately the right of revendication given to titularies of possessory and non-
possessory accessory real rights.
i. Titularies of Possessory Accessory Real Rights
61. Codal Possessory Security: Pledge – The ordinary pledge has always
been the basic security device over corporeal moveables. In classical theory
it is seen as an accessory real right giving rise to an action in revendication. 287
284For a brief discussion of competing recourses in revendication by titularies of real rights,
see Mignault, supra, note 28 at 542-44.
285Art. 2022 C.C.L.C.
28 61n this sense “possessory” means that the titulary has a right to physical control of the
object of his security, opposable to all third parties. See M. Dagot, Les sdrets (Paris: Presses
universitaires de France, 1981) at 127-28. While some authors (see, e.g., Mignault, supra, note
the lessor’s privilege, the unpaid vendor’s
28 at 392) apparently see other traditional devices –
as accessory real rights (each, moreover, being non-poss-
privilege, the privilege for tithes –
essory), each of these lacks an essential indicium of a true real right – namely the right to
follow. That is, none gives its titulary a right which can be asserted if the debtor disposes of
the property over which it lies. The special case of the right of retention is discussed infra, no.
62.287Mignault, ibid., considers the pledge to be accessory real right. See also Macdonald, supra,
note 143. That is, even though art. 1972 C.C.L.C. states that the object remains in the creditor’s
hands as a deposit, all agree that the pledgee has a jus in re aliena.
McGILL LAW JOURNAL
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Paragraph 734(1) C.C.R confirms that the pledgee in Quebec has a right to
revendicate. The conditions for exercising this right do, however vary depending
on the status of the pledgee’s claim to possession.
According to article 1970 C.C.L.C. possession by the creditor is the
essence of pledge. If the pledgee voluntarily surrenders the object to his
debtor, the pledge is extinguished and he is no longer entitled to revendi-
cate.288 Should the pledgee be involuntarily dispossessed, however, the pledge
subsists and the pledgee may revendicate the property.289 Similarly, the
fraudulent return of the pledged property to the pledgor by a person to
whom physical control has been given by the pledgee does not extinguish
the right to revendicate.
The pledgee may also claim in revendication according to the terms of
his contract as against third parties to whom he has given physical custody
(namely warehousemen holding for him). 290 Where the pledgor wrongfully
regains physical control of the object, the pledgee may either revendicate
or claim specific performance of the contract of pledge.291 In all cases, how-
ever, revendication is founded on the pledgee’s right to actual and immediate
physical control of the object pledged, and as long as the pledge subsists,
he may revendicate. 292
62. Documentary Pledges – Both paragraphs 1971(2) and 1979(2) C.C.L.C.
contemplate the negotiation of documents of title as collateral security by
simple endorsement and transfer.293 As applied to contracts of pledge this
endorsement produces the same effect as a simple putting into possession.
That is, both the document itself and the underlying assets are deemed by
appeal to Que. C.A.
288Traders Finance Corp. v. Landry (1957), [1958] B.R. 120. Unless the return is temporary
or accidental, in which case the pledge subsists and revendication is possible: Grobstein v. A.
Hollander and Son Ltd (1962), [1963] B.R. 440.
289See P-B. Mignault, Le droit civil canadien, t. 8 (Montral: Wilson & Lafleur, 1908) at 403.
290See Ptroles Irving Inc. v. Machinerie B.D.M. Inc. (1984), [1984] C.S. 511, currently on
291See Wilson v. Doyon (1963), [1964] C.S. 93.
292Thus, even should the pledgor pledge the thing of another under art. 1966a C.C.L.C., and
even should the true owner regain possession of his object following involuntary or fraudulent
dispossession of the pledgee, the pledgee can successfully revendicate. See Atlas Thrift Plan
Corp. v. Lussier (1955), [1955] R.P 181 (Sup. Ct); and Caron, supra, note 90 at 406-9 and 413-
19. Where, however, the pledge of the thing belonging to another is not valid under arts 1488,
1489 or 2268 C.C.L.C. the true owner may resist the pledgee’s revendication. See Productions
Michel Desrochers Inc. v. Bourbeau (1983), [1983] C.S. 522.
2 McGill L.J. 77 at 95-103.
293
See G.E. Le Dain, “Security Upon Moveable Property in the Province of Quebec” (1956)
19861
ENFORCING RIGHTS IN MOVEABLES
statute to be the juridical object of the pledge.294 The standard form of
documentary pledge will arise under the provincial Act Respecting Bills of
Lading, Receipts and Transfers of Property in Stock 95 or the federal Bank
Act. 296
The most important feature of the documentary pledge is that the pled-
gee himself only takes actual possession of the document of title while the
goods themselves remain in the physical custody of the issuer of the doc-
ument (namely the shipper, warehouseman, etc.). 2 9 7 In other words, the
pledge may be constituted, transferred, substituted and discharged without
the need for multiple physical displacements of the pledged collateral. How-
ever, the disjunction of juridical and material possession does not mean
that the device ceases to be a possessory security. It follows that the endorsee
of the document of title may revendicate under exactly the same conditions
as the ordinary possessory pledgee, not only the document of title itself, but
also the underlying assets represented by that document.298
63. The Right of Retention – Some French authors consider that the right
of retention constitutes an incomplete possessory real right (“un droit r6el
inachev6”). 299 That is, because the right is opposable to the true owner, it
has a character of reality notwithstanding that, in France, it gives no execution
preference. 300 Nevertheless, the majority of commentators consider the right
of retention to be a personal right.301 For this reason, even though it shares
almost identical prerogatives with the pledge it will be considered below as
a personal right of detention giving rise to an.execution privilege. 302
294Some authors see the documentary pledge as a simple case of the pledged items being
held by a third party. See P. Ciotola, Droit des saretts (Montreal: Th6mis, 1984) at 66. This
view is wrong, for there is no original contractual link between warehouseman and pledgee.
Others see this as a vesting of ownership, since the endorsement confers upon the endorsee
all the rights and title of the endorsor. See, e.g., Ross v. Thompson (1883), 9 Q.L.R. 365 (Sup.
Ct); Young v. Demers (1895), 4 B.R. 364. However, where the underlying contract is one of
pledge, the endorsees rights are those of the titulary of an accessory real right.
295Supra, note 49, ss 1-6.
296Supra, note 49, s. 186; see also the Bills of Lading Act, R.S.C. 1970, c. B-6, s. 2.
2 97See Wood, supra, note 219 for a thorough historical analysis.
298For a full elaboration, see Macdonald, supra, note 143 at 580-81 and 619-22.
299Mazeaud, supra, note 23, no. 1410.
30 Dagot, supra, note 286 at 75-77.
301See N. Catala-Franjou, “De Ia nature juridique du droit de r6tention” (1967) 65 Rev. trim.
dr. civ. 9, no. 6; Frenette, supra, note 46, nos 55-57; S. Binette, Le droit de r6tention en droit
civil (L.L.M. thesis, Universit6 Laval, 1974) at 29-38 [unpublished]. On the other hand, courts
seem more willing to see the right of retention as a real right. See De Senneville v. Baillargeon
(1910), 37 C.S. 215 at 229; Lepine v. Brunet (1951), [1953] R.L. (N.S.) 47 at 51 (Sup. Ct); Elliot
Krever and Assoc. Ltd v. Montreal Casting Repairs Ltd (1968), [1969] C.S. 6 at 8.
302In all events, commentators universally accept that the titulary of a right of retention may
revendicate under similar circumstances as the ordinary pledgee. See Frenette, ibid., nos 39-
52.
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[Vol. 31
64. Scope of Revendication of Possessory Accessory Real Rights – As real
rights, the pledge and documentary pledge give rise to a right to revendicate
both against wrongfully-holding co-contractants (for example, mandataries,
carriers, depositaries and repairers) and against wrongfully-holding third
parties. Thus, the documentary pledgee may revendicate the property from
an overholding warehouseman or carrier who issued the receipt or bill of
lading which has been endorsed to him, even though the issuer is not his
co-contractant. The pledgee’s right to claim the goods from the pledgor (or
third party true owner) who regains possession is more problematic. Never-
theless, as long as the pledge itself subsists, the fact that it is the pledgor (or
true owner) who is in possession is immaterial.30 3 Revendication of the
object of the pledge will always be possible. 304
ii. Titularies of Non-Possessory Accessory Real Rights
65. Codal Non-Possessory Security: Special Pledges –
In addition to simple
pledge, the Civil Code also sets out two other contracts which have pledge-
like characteristics: agricultural and forest pledge, and commercial pledge. 305
In these special pledges the creditor is not required to take physical possess-
ion of the pledge corpus in order to perfect the contract. The drawing up
and registration of a pledge contract is deemed to replace creditor possess-
ion. 30 6 Thus, these non-possessory pledges add a further dimension to the
pledgee’s right of revendication: revendication from the pledgor. Paragraphs
1979c(l) and 1979i(l) C.C.L.C. give the special pledgee a right to claim
possession from the pledgor upon default. This additional right is not simply
a personal action in specific performance. Because it is founded on the
contract of pledge it is also an action in revendication per se.
The true characterization of the special pledgee’s right to claim possess-
ion from the pledgor becomes important in determining whether the right
303In other words, because the pledge is a real right and because art. 1966a C.C.L.C. permits
the pledge of a thing belonging to another, the true owner who gains possession while the pledge
subsists cannot, on the basis of his ownership alone, resist the pledgee’s revendication. See, by
extension, Canadian Bank ofCommercev. Stevenson (1892), 1 B.R. 37 on documentary pledges;
Re Bertrand (1966), [1967] C.S. 596 on commercial pledges.
34See Macdonald, supra, note 143 at 595-96; and Grobstein v. A. Hollander and Son Lid,
305A third non-possessory pledge –
acquacultural pledge – will soon be possible. See Acqua-
supra, note 288.
306
culture Credit Act, S.Q. 1984, c. 21, s. 58ff, not yet proclaimed in force.
See A. Cossette, “Considbrations sur le droit de propridt6 et son 6volution” (1967) 70 R.
du N. 277; Y Desjardins, “Du nantissement commercial A l’hypothque mobili~re” (1968) 71
R. du N. 87; Macdonald, supra, note 143 at 583-84; and Re Greenfield Park Lumber & Builders
Supplies Ltd (1977), [1977] C.S. 504. Registration is an essential formality for the constitution
of the pledge, in default of which the pledge is void. See ReHospitalite Tours Lte (28 January
1982), Quebec 200-11-000624-810 (Sup. Ct).
19861
ENFORCING RIGHTS IN MOVEABLES
is sufficient to sustain an action in revendication against third parties who
obtain the goods from the pledgor. While there are no cases directly on this
point, on several occasions courts have had to deal with the pledgee’s rights
when the object of the pledge has been seized by another creditor. They
have concluded that both an agricultural pledgee, 30 7 and a commercial pledgee 308
in possession have a right to oppose a seizure taken by a third party. Occa-
sionally they have granted this right to special pledgees even prior to their
taking possession from the pledgor.309 This second result is thought to be
justified on the basis that registration replaces pledgee possession, and because
an ordinary pledgee in possession is permitted to resist a seizure by a third
party.310 Nevertheless, the majority of cases do not seem to consider the
special pledgee out of possession to have a perfected real right in the same
sense as the ordinary pledgee. 311
Of course, the special pledgee may always revendicate when the objects
of his pledge are wrongfully in the hands of a third party, whether by virtue
of a contract with the pledgor, or as a result of loss or theft. 312 It follows,
000181-821 (Prov. Ct).
30 Re Drouin (1972), [1972] C.A. 843.
308Sous-ministre du revenu du Quebec v. Monette (27 November 1982), Beauharnois 760-02-
309See Commission de la sante et de la s~curiti du travail v. L. Monette & Fils Inc. (24
February 1983), Iberville 755-05-000264-828 (Sup. Ct) and cases cited therein; see also B. Fabian
Inc. v. Restaurant le Carafon du vin Lte (1980), [1980] C.S. 768.
310See, for an analysis of competing theories, L. Payette, “Opposition A fin de distraire –
Nantissement commercial – Droit de r6tention” (1979) 39 R. du B. 1032. In this commentary,
Payette criticizes the decision in R. v. Restaurant & Bar La Seigneurie de Sept-Iles Inc. (1977),
[1977] 2 EC. 267, [1977] C.T.C. 96, 77 D.T.C. 5129 (T.D.) where the right of the pledgee out
of possession to oppose the seizure was held, following art. 1977 C.C.L.C., to be dependent
on whether the seizing creditor was of higher or lower rank.
31 ‘See Sous-ministre du revenu du Quebec v. Fountainhead Fun Center Ltd (1981), 40 C.B.R.
(N.S.), [1981] R.D.EQ. 105 (Sup. Ct) [hereinafter Fountainhead Fun Center]; and Sous-ministre
du revenu du Quebec v. Restaurant chez Gisele Forget Ltee (1984), [1984] C.S. 44 and cases
cited therein. See also Jean-Talon Auto Parts Lte v. Funaro Station Service Inc. (29 November
1984), Montreal 500-02-015943-843 (Prov. Ct) [hereinafter Funaro]; and Sous-ministre du revenu
du Quebec v. Transport Sirois Lte (22 November 1982), Beauharnois 760-02-000181-821 (Prov.
Ct). In the Funaro case, however, the court permitted the opposition by a pledgee out of
possession on the basis that the debtor had already agreed to hand over the goods at the time
they were seized. It is also to be noted that these decisions refusing the pledgee’s opposition
may be correct and that those cases permitting the ordinary pledgee in possession to oppose
a seizure are in error. This issue will be examined below in the review of oppositions to seizure.
312The agricultural and commercial pledges may also be set up against the true owner of the
goods pledged by a non-owner under the same conditions as for an ordinary pledgee, even if
that owner obtains possession of the goods. See Bo-Less Inc. v. Boily (27 December 1979),
Quebec 200-03-000192-770 (C.A.); and especially Re Bourcier Super Marche Lefort Inc. (23
May 1984), Montreal 500-11-001426-838 (Sup. Ct); and L. Payette, “Nantissement commerciale
chose d’autrui” (1980) 40 R. du B. 677. Moreover, they will subsist if the objects become
–
immobilized by destination (art. 1979h C.C.L.C.) but not if immobilized by nature. See Societe
du credit agricole v. Lambert (12 March 1984), Quebec 200-05-000262-845 (Sup. Ct).
McGILL LAW JOURNAL
[Vol. 31
therefore, that apart from the case of oppositions to a seizure (where courts
have hesitated to assimilate the special pledge with the ordinary pledge),
the non-possessory special pledge vests its titulary with identical preroga-
tives in revendication to those of the ordinary pledgee.
66. Maritime Mortgages – Article 2022 C.C.L.C. states that moveable prop-
erty is not subject to hypothecation, except as provided in the titles “Of
Merchant Shipping” and “Bottomry and Respondentia”. Since Confedera-
tion, this exception relates to the maritime mortgages set out in what is now
the Canada Shipping Act 3 13 and to the extent not superseded by that Act,
by article 2375ff. C.C.L.C. While the maritime mortgage transaction is in
form a mortgage, by virtue of former article 2377a C.C.L.C. it has been
held in Quebec not to give the mortgagee a species of ownership of the ship
which has been mortgaged, but rather to constitute a type of “super” hypothec
or an innominate accessory real right.314 In any event, since the hypothec
is itself a non-possessory accessory real right, it will, as such, give rise to a
right of revendication. For example, in Service Finance Corporation v. Decca
Radar Canada (1967) Ltd315 the court permitted the maritime mortgagee
to bring an opposition to withdraw from seizure on the basis of his security.
Presumably, therefore, the mortgagee could revendicate the object of his
security under roughly the same conditions as those applicable to the special
pledgee of the Civil Code.
67. Statutory Non-Possessory Security – Apart from the possessory and
non-possessory accessory real rights adverted to in the Civil Code, the law
of Quebec knows a variety of non-possessory security devices created by
statute. The three most important of these are specialized commercial financing
instruments in which the right to revendicate from wrongfully-holding par-
ties is not explicitly set out, but is implied from the nature of the creditor’s
powers. Thus, a bank holding section 178 security may revendicate property
subject to its claim, even though the BankAct is, over a wide range of cases,
silent on the point. 316 Similarly, the right to revendicate of the transferee of
property-in-stock under Division III of the Act Respecting Bills of Lading,
Receipts and Transfers of Property in Stock must be inferred from section
313R.S.C. 1970, c. S-9.
314See Re Robert & Lamarche (1900), 18 C.S. 101, where the court held that a judicial sale
would not purge the “maritime mortgage” as it would an ordinary hypothec.
315Supra, note 199.
316See supra, note 49, ss 178(I)(a) and (b) and 178(3). S. 178(3) only governs relationships
between the debtor and the bank. For a full analysis, see Macdonald, supra, note 69 at 1040-
42.
1986]
ENFORCING RIGHTS IN MOVEABLES
30 of that Act. 317 Nevertheless, courts have consistently held that the section
178 transaction permits the creditor to revendicate from any wrongfully-
holding party, be this a debtor in default or any other person. 318 Under the
Special Corporate Powers Act 319 a slightly different secured financing regime
is contemplated. Even though most trust deeds contain a clause, valid under
section 30, by which the debtor “cedes and transfers” his assets to the trustee,
courts refuse to consider the trustee as owner and are now holding that he
acquires, at best, an accessory real right. 320 If such is the case, the trustee
for bondholders ought to be able to revendicate from a third party wrongfully
interfering with property subject to his guarantee. But since his rights in the
property are only those of a privileged creditor, who has, nonetheless, a right
to dispose consensually, courts and commentators have been reluctant to
accord the trustee a right to follow; hence, it is uncertain whether he may
revendicate prior to the security becoming enforceable. 32′ The best position
would seem to be to treat section 30 as vesting the trustee with rights ana-
logous to those of the special pledgee, except that prior to his debtor’s default
he is deemed to renounce the right to revendicate against all ordinary course
purchasers. 322
317Supra, note 49. S. 30 speaks only to the case where the transferee seeks possession from
his debtor following default. See R.A. Macdonald, “Inventory Financing in Quebec After Bill
97” (1984) 9 Can. Bus. L.J. 153. See also J. Auger, “Les sfiretrs mobilirres sans drpossession
sur des biens en stock en vertu de la Loi sur les banques et du droit qurbrcois” (1983) 14
R.D.U.S. 221; and Y. Renaud, La cession de biens en stock (n.p.: Judico, 1985).
3t 8See, as concerns s. 178 security, HollyM Ward Lumber, supra, note 202 for an opposition
to seizure; Banquede Commerce CanadienneImptrialev. Knitrama Fabrics Inc. (1983), [1983]
C.A. 565, [1983] R.D.J. 417 for a contestation of a seizure before judgment; A.G. Canada v.
Mandigo (1964), [1965] B.R. 259, 46 D.L.R. (2d) 563; and Sawyer Tanning Co. v. Leather
Group Ltd (1977), [1977] C.S. 1150 for revendication from a third party acquirer. Given the
basic similarity of the transfer of property-in-stock device to s. 178 of the BankAct, an identical
judicial posture can be expected.
31 9Supra, note 49, ss 27-30.
320General Trust of Canada v. Roland Chalifoux Lte (1962), [1962] S.C.R. 456; Re Serabec
LtWe (1985), [1985] C.A. 212.
321Compare Darveau v. D’Amours (1931), 69 C.S. 407, rev’d in part (1931), 52 B.R. 449,
rev’d (1933), [1933] S.C.R. 503 with Fabrication Precision Inc. v. Mobilart Inc. (1975), [1976]
C.S. 128. See L. Payette, “La charge flottante” [1976-77] Meredith Mem. Lect. 43; Demers,
supra, note 281 at 102-3. In other words, because the trustee’s rights are normally extinguished
by ordinary course sales, courts appear to be holding that prior to crystallization upon default,
the trustee has no jus in re aliena. That is, the trustee is seen as having only the rights of an
ordinary privileged creditor prior to default. See Auger, supra, note 317 at 320. See also Affiliated
Factors Corp. v. Rosco Metal Products Ltd (1970), 18 C.B.R. (N.S.) 58 (Que. Sup. Ct). Ofcourse,
should non-ordinary course sales, theft, fraud or loss of the object constitute a default, the
trustee may at that point take possession and revendicate. See Alcools de commerce, supra,
note 234.
322For a subtle analysis of the law on this point, see Payette, ibid., nos 26-31, who seems to
accept that the trustee might have a right to follow in non-ordinary-course dispositions. He
cites Lord v. Robin (1925), 39 B.R. 426, Darveau v. D’Amours, ibid. and Affiliated Factors Corp.
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[Vol. 31
Interestingly, in each of the above cases the rights of the creditor have
at one time been mischaracterized as a species of ownership sui generis.323
Analytically, however, each is a non-possessory security device which could
sustain an action in revendication as such. 324 Consequently, in each case
the secured creditor may revendicate from his debtor in default or from
any third parties wrongfully holding the collateral.325 As for the power of
the secured creditor to raise a seizure, the result is not identical. Courts
seem to have assimilated the position of the trustee not in possession to
that of the non-possessory pledgee not yet in possession. 326 Transferees and
banks, by contrast, seem to be able to oppose a seizure by another creditor
even prior to their taking possession on the basis that their right to private
disposition of the secured collateral is absolute. 327
The character of other statutory security devices, notably those guar-
anteeing claims of administrative agencies or the Crown, are somewhat less
certain. Should any of the prerogatives granted under An Act Respecting the
Ministtre du Revenu 328 be seen as a true legal hypothec over moveables,
then a regime of revendication similar to that given to banks, transferees
of property-in-stock and maritime mortagees should be applicable. There
are, however, good arguments for analyzing the Minister’s claim over cor-
poreal moveables as a simple execution privilege and not as a real right. 329
If such is the case, the fiscal claim would not give rise, on this basis, either
v. Rosco Metal Products Ltd, ibid. A failure to distinguish between the exercise of a right upon
default and the creditor’s right to moniter often leads to a mischaracterization of the trustee’s
rights as being merely those of a privileged creditor who has no real right.
323See the discussion in Lalibert v. LaRue, supra, note 69, as concerns trust deeds; Banque
Canadienne Nationale v. Lefaivre, supra, note 69 as concerns s. 178 security; and Renaud,
supra, note 317 at 20-26.
324See Macdonald, supra, note 69 at 1013ff; Payette, supra, note 321 at 76ff.
3251n practice this usually means a third party who is not an ordinary course purchaser, since
invariably security agreements permit the debtor to dispose of his inventory. But see Intersplice
Inc. v. Industries UnikLtee (8 June 1984), Montreal 500-05-010718-821 (Sup. Ct).
326See M. Cordeau, “La r6alization des garanties consenties par acte de fiducie” in Barreau
du Quebec, Formation Permanente, cours 63 (Cowansville, Qu6.: Yvon Blais, 1982) 3. Compare
Fountainhead Fun Center, supra, note 311 and Sous-ministre du revenu du Quebec v. Total
RentalEquipmentlnc. (1979), [1979] C.S. 840 [hereinafter TotalRentalEquipment] with Doyle,
Dane, Bernbaclk Advertising Ltd v. Rgserve Expertise (1978) Ltee (1980), [1980] C.S. 772. See
also KS. Atlas, “The Race to the Swiftest: Entitlement to the Possession of the Property of a
Bankrupt” (1985) 56 C.B.R. (N.S.) 217 for a discussion of Re Dominion Lock Co. (1985), 56
C.B.R. (N.S.) 148 (Que. Sup. Ct).
327See Holly M. Ward Lumber, supra, note 202; Keymar Equipment, supra, note 145. This
328R.S.Q. c. M-31, s. 12.
329See L. Payette, “Charge flottante: Privilege de ]a Couronne et saisie entre les mains du
question will be discussed in detail upon a review of oppositions to seizure.
fiduciaire” (1980) 40 R. du B. 337.
1986]
ENFORCING RIGHTS IN MOVEABLES
to an action to revendicate from wrongfilly-holding third parties the prop-
erty over which it lies, or to an opposition to withdraw from seizure. 330
Other statutory securities either provide simply for an execution preference
or for a legal hypothec (or “lien”) similar to that of the Act Respecting the
Ministtre du Revenu. Consequently, they also cannot be seen as establishing
non-possessory accessory real rights.
68. Contractual Non-Possessory Security –
To the extent that it is possible
to create contractual non-possessory accessory real rights other than mod-
ified pledges, hypothecs or the statutory non-possessory security devices
already noted, then, subject to any limitations arising from the contract, the
secured creditor should be able to revendicate in the same fashion as the
titulary of an ordinary non-possessory security, as the case may be. Never-
theless, in view of the basic policy of articles 1980 and 1981 C.C.L.C. the
case for recognizing completely new types of contractual accessory real rights
is not persuasive.33 1 In all events, Quebec courts to date have neither rec-
ognized nor enforced purely contractual security devices. 332
69. The Privilege of Lessors, Unpaid Vendors and Tithe Creditors – Some
authors consider that privileges upon identifiable assets of a debtor consti-
tute accessory real rights. 333 These rights of the tithe creditor, of the unpaid
vendor and of the lessor of immoveables, would necessarily be non-poss-
essory. Yet there is nothing in any of these privileges which suggests that
the creditor has a right in the object of his privilege. In fact, in each case
the privilege necessarily falls should a third party acquire the property.334
330See Fountainhead Fun Center, supra, note 311; and Sous-ministre du revenu du Quebec
v. Formulations Epoxyde Beaudry Inc. (6 July 1984), Terrebonne 700-05-002009-821 (Sup. Ct);
as well as the analysis in Macdonald, supra, note 69 at 1087-89. But see Total Rental Equipment,
supra, note 326, where the court permitted the Crown to assert its seizure against a trustee for
bondholders in possession. If such is the case then the Minister of Revenue would indeed have
a real right and not a simple execution privilege. The Total Rental Equipment decision has
been severely criticized by commentators: see Payette, ibid.; Demers, supra, note 281 at 102-
3; M. Cordeau, “La prise de possession par le fiduciaire en vertu d’un acte de fiducie” (1983)
24 C. du D. 531 at 570-72.
332See Macdonald, supra, note 112 at 256-58 and 285-95. See also Cantin Cumyn, supra,
332By contrast, they have permitted and enforced contractual modifications to existing secu-
rity devices. The right to take possession without a court order when security is given under
s. 178(1)(a) and (b) of the BankAct is one such instance. See Paquet, supra, note 153. Finally,
courts have permitted various quasi-security devices, such as the double sale, the sale-leaseback
and the pre-article 1603 C.C.L.C. financial lease, under which ownership is deployed as a
security. See Canadian Dominion Leasing Corp. v. Laboratoire Choisy Ltge (1970), [1970] C.A.
1021. These title security devices are not, however, analytically accessory real rights.
333Mignault, supra, note 28 at 392.
334See, as concerns unpaid vendors, art. 1999 C.C.L.C.; as concerns lessors ofimmoveables,
art. 1640 C.C.L.C.; and as concerns tithe creditors, Gaudin v. Ethier (1884), 1 M.L.R. (Q.B.).
note 50.
McGILL LAW JOURNAL
[Vol. 31
For this reason, revendication on the basis of a right to follow is impossible,
and the privileges cannot be considered to give rise to real rights.
70. Scope of Revendication of Non-Possessory Accessory Real Rights – Given
the particular purposes of all accessory real rights, the non-possessory secu-
rity holder ought to have a right to revendicate similar to that of the ordinary
pledgee. That is, once the creditor has a right to possession of the collateral,
he may revendicate from wrongfully-holding third parties or from his debtor.
As for revendication from the debtor in possession, the creditor may assert
either a contractual right to possession or may revendicate and seize when-
ever default occurs. 335
The position regarding third parties is more subtle. Prior to a right to
immediate possession actually arising consequent upon his debtor’s default,
the creditor may revendicate from third parties only when the continued
existence of his security is threatened by that wrongful possession. Such a
threat would occur notably in the case of finders and thieves. Of course, in
most cases the debtor’s inaction would trigger an insecurity clause in the
contract of loan or would bring article 1092 C.C.L.C. into play, with the
consequence that the security would become enforceable. In each of these
situations, the bank, the transferee and the trustee for bondholders would
be in an identical position to that of the non-possessory special pledgee.
d. Titularies of “Real Rights of Administration”
71. The Proliferation of Non-Conforming Legal Devices – No legal system
functions for long as a static conceptual system. Either through legislative
fiat or practice-driven judicial interpretation, new devices are engrafted onto
existing law.336 Often these are first accommodated by their characterization
as a sui generis type of existing institution. Ultimately, most of these trans-
plants are assimilated into the conceptual structure of the host legal sys-
tem.337 Some, however, never do follow this evolutionary pattern.
Perhaps the first conceptual non-conformity in the civil law of property,
dating from Roman times, was the fiduciary substitution.338 But because
this institution did not require a readjustment to the theory of the prerog-
atives of ownership per se it has not generally raised significant conceptual
335For an assessment of various default rights, see Macdonald, supra, note 143 at 610-14 and
619-22.
Academic Press, 1974).
336See Watson, Society and Legal Change, supra, note 19, c. 8-12.
337See A. Watson, Legal Transplants: An Approach to Comparative Law (Edinburgh: Scottish
338See C.E Th~venot de Saules, Trait des substitutions fidicommissaires, contenant toutes
les connaissances essentielles selon le droit romain et le droit francais (Paris: Chez Moutard,
1778).
1986]
ENFORCING RIGHTS IN MOVEABLES
problems. 339 By contrast, several nineteenth- and twentieth-century inno-
vations do not easily fit the framework of property rights elaborated by the
Code, even though some of these are incorporated into it. The most striking
of these incorporated anomalies are the trust and the concept of mercantile
agency. Of the anomalies resting outside the Code, the schema of statutory
transfers to trustees in bankruptcy and company liquidators is most problematic.
To date civil-law theorists have not attempted in any systematic way
to account for these anomalies. The trust has been more or less characterized
as a sui generis institution and the other concepts have been relegated to
the authors of business- or commercial-law doctrine. In consequence, it has
not been necessary to characterize the nature of the administration of the
property of another in general (or specific types of administration in par-
ticular) as constituting either powers or rights and, if rights, either real rights
or personal rights. Here it is suggested that certain types of administration
can best be conceived as vesting a real right in their titulary.
72. Ownership of Trust Property – The felt need to locate in one individual
the right of ownership of trust property has induced great debate in Quebec
as to the nature of the institution.340 Some commentators 34’ and at least
one court342 have attributed ownership to the beneficiary of the trust, whether
the beneficiary is merely an income beneficiary or whether he also has a
right to the capital. A second current of opinion considers the trustee to be
owner, but holding “un droit de propri~t6 limit6” or ownership sui generis.343
A third accords ownership to neither trustee nor beneficiary but to the settlor
or his heirs as the case may be, vesting the trustee with a real right of
339That is, while courts have often struggled to determine whether a substitution has been
created, once they have found in the affirmative they have had less difficulty in stating and
enforcing the rights of institutes and substitutes: Cantin Cumyn, supra, note 72, nos 16-25.
The situation of substitutes prior to the opening of a substitution is now the only conceptual
anomaly connected with the substitution.
340In this section only the trust provisions of arts 981a-981n C.C.L.C. will be considered.
The fiduciary legatee of art. 964 C.C.L.C. (See Masson v. Masson (1912), 47 S.C.R. 42) and
the legatee for charitable purposes of art. 869 C.C.L.C. (see Valois v. de Boucherville (1929),
[1929] S.C.R. 234) will not be considered here as they are more easily understood as examples
of the administration of the property of another.
341 .. Billette, Trait theorique et pratique de droit civil canadien: Donations et testaments,
t. 1 (Montr6al: n.p., 1933) no. 264; R.-H. Mankiewicz, “La fiducie qu6becoise et le trust de
Common Law: Etude d’interpr6tation comparative” (1952) 12 R. du B. 16 at 32ff.; P-B. Mig-
nault, Le droit civil canadien, t. 5 (Montreal: Th6oret, 1901) at 156. It is to be noted that
Mignault later changed his position.
342See Chester v. Gait (1881), 12 R.L. 54 (Sup. Ct).
343
8ee, most recently, Tucker v. Royal Trust Co., supra, note 69. See also Curran v. Davis
(1933), [1933] S.C.R. 283; Reford v. Natural Trust Co. (1967), [1968] B.R. 689; P-B. Mignault,
“, propos de fiducie” (1933) 12 R. du D. 73; PE. Graham, “Some Peculiarities of Trusts in
Quebec” (1962) 22 R. du B. 137. For a critique of this approach, see M. Cantin Cumyn, “La
propri6t6 fiduciaire: Mythe ou realit6” (1984) 15 R.D.U.S. 7.
REVUE DE DROIT DE McGILL
[Vol. 31
administration only.344 Finally, a fourth conception describes the trust either
as an institution or characterizes the trust corpus as a “patrimoine d’affec-
tation”.345 This last conception of the trust seems to be gaining support
among commentators. 346
If the trust is an autonomous institution, it remains to determine who
may exercise the action in revendication. Even if one concludes that the
trustee is neither owner nor titulary of any other real right in relation to
the trust corpus, by virtue of article 981b C.C.L.C. he may revendicate as
a legal depositary.347 The position of trust beneficiaries under such an ana-
lysis is infinitely more complex. To begin with, it seems necessary to dis-
tinguish income and capital beneficiaries. The income beneficiary has been
permitted to proceed against the trustee personally to preserve the trust 348
and, according to some, may bring conservatory actions, 349 even though he
is not vested with a real right. 350 Nevertheless, unless the income beneficiary
has a degree of use and detention of the trust corpus, it is unlikely that his
rights as beneficiary could constitute either a jus in re or a jus ad rem.351
Whether they give rise to a right of revendication then depends on the status
of titularies of such rights in possession to revendicate. 352 As for capital
beneficiaries, the majority opinion is that they acquire ownership of the
trust corpus only at the expiry of the trust. 353 During the trust they only
344See D.N. Mettarlin, “The Quebec Trust and the Civil Law” (1975) 21 McGill L.J. 175 at
218ff.345See M. Faribault, Trait theorique et pratique de la fiducie ou trust du droit civil dans la
province de Quebec (Montreal: Wilson & Lafleur, 1936) no. 73ff.; Cantin Cumyn, supra, note
72, nos 98-101. See also No. 199 v. Minister of National Revenue (1954), 11 Tax A.B.C. 353,
54 D.T.C. 488. On the concept of a “patrimoine d’affectation”, see P. Charbonneau, “Les
patrimoines d’affection: Vers un nouveau paradigme en droit qurbbcois du patrimoine” (1983)
85 R. du N. 491.
346See Caron, supra, note 69, especially J.E.C. Brierley, “Editor’s Post Scriptum” at 440. See
347See P. Lepaulle, “An Outsider’s View Point of the Nature of Trusts” (1928) 14 Cornell
also Cantin Cumyn, supra, note 335.
L.Q. 52 at 61.
348Most notably, he may have the trustee removed for fraudulent dealing with trust property.
See Ware v. Houghton (1976), [1976] C.S. 585; Hand v. Auclair (1970), [1970] C.A. 253.
349Faribault, supra, note 345, no. 313; Mankiewicz, supra, note 341, no. 60ff. This position
has not yet found favour with the courts. See Noel v. Noel (1960), [1960] B.R. 689; Dubreuil-
Goyette v. Sherbrooke Trust Inc. (1976), [1976] C.A. 571.
nouvelle des droits patrimoniaux” [1963] Rev. dr. int. et comp. 557.
35OGuaranty Trust Co. of New York v. R. (1948), [1948] S.C.R. 183.
351L. Rigaud, “A propos d’une renaissance du ‘jus ad rem’ et d’un essai de classification
352That is, there appears to be nothing in the concept of the trust itself upon which all income
353Mignault, supra, note 343; Chester v. Gait, supra, note 342; Cantin Cumyn, supra, note
beneficiaries could found a right of revendication.
50.
1986]
ENFORCING RIGHTS IN MOVEABLES
have a future or eventual right not dissimilar to that of a substitute. Con-
sequently, like substitutes, capital beneficiaries ought to be able to take con-
servatory actions to protect their rights, but unlike the substitute, they do
not have the right, should the revenue beneficiary renounce, to demand the
capital by anticipation. 354 Whether this latter limitation excludes the right
to revendicate has not yet been judicially decided.355
If the view of modem commentators (although not the Supreme Court356),
that the trust should not be defined in terms of owning and transferring
property but in terms of its administration, were to prevail then it would
seem that the status of each party to revendicate under his own title cannot
be determined solely by locating the right of ownership of trust property or
by describing each as trustee, income beneficiary or capital beneficiary. In
other words, even if, for some, the trust cannot be made to fit the classical
conception of ownership (and the trustee seen as titulary of a real right of
administration), the prerogatives of parties to a trust arrangement can be
analysed on generally applicable civil law principles. 357 These principles then
will determine whether revendication is possible, and by whom.
73. Mercantile Agents – The Code is both laconic and ambiguous in its
treatment of the rights of brokers, consignees, factors and commercial agents.
Article 1736 C.C.L.C. states that the factor or commission-merchant is an
agent who buys or sells goods for another, either in his own name or in the
name of his principal.358 Further, article 1740 C.C.L.C. provides that “[a]ny
agent entrusted with the possession of goods, or of the documents of title
thereto, is deemed the owner thereof for the following purposes …
,,.359
354See art. 956(2) C.C.L.C.; and see Baril v. Trust Gen&al du Canada (1975), [1975] C.S.
892.
3551n principle, if the revendication were conservatory (that is, if the beneficiary were not
acting so as to take possession of the corpus for his own use), it ought to be permitted.
356Royal Trust Co. v. Tucker, supra, note 69. It is to be noted that in the English version of
this case the expression “droit de propri6t6 sui generis” is rendered as a “sui generis right of
property”. If Royal Trust Co. v. Tucker is read in this way then it is open to consider the
ownership of the trust as remaining with the donor and his heirs or the testator and his heirs,
with the trustee exercising a real right of administration.
357 0n such an analysis, the settlor will be a donor or the heir of a testator, as the case may
be; the trustee will be a species of depositary; the income beneficiary in possession will have
a jus ad rem; and the capital beneficiary will have a future real right.
358See, generally, N. L’Heureux, Precis dedroit commercialdu Quebec, 2d ed. (Qu6bec: Presses
de l’Universit6 Laval, 1975). A broker, under art. 1737 C.C.L.C., is subject to the general rules
of mandate and in all cases and for all purposes is the representative (as mandatary) of his
mandator. See also A. Perrault, Traite de droit commercial, t. 2 (Montral: Albert IUvesque,
1936) nos 889 and 891. See Paquette v. Boisvert (1957), [1958] B.R. 150. Art. 1738ff. C.C.L.C.
thus applies only to factors and commission-merchants.
359See also Y. Renaud & J. Smith, Droit quebkois des corporations commerciales, t. 2 (Montreal:
Judico, 1974) at 1053-58 for a brief review of the law relating to documents of title as it relates
to questions of possession.
McGILL LAW JOURNAL
[Vol. 31
Thus, the factor or commercial agent, by contrast with a broker, has not
only a power to represent the owner as mandatary under article 1737 C C.L. C.,
he is also deemed to be owner for the purpose of the sale, pledge, carriage,
warehousing or repair of the goods.
These provisions raise three main questions concerning the right of
revendication: first, when is a mercantile agent a true factor? Second, when
a mercantile agent buys in his own name under article 1736 C.C.L.C. does
his principal automatically acquire a right to revendicate as owner? And
third, does the deemed ownership of article 1740 C.C.L.C. extinguish the
principal’s or consignor’s right to revendicate as owner, vesting it solely in
the factor? As concerns the first point, it would appear that the sine qua
non of a factoring relationship is possession, either in specie or by way of
documents of title, by the factor.360 While there is no authority directly on
the second point, it would seem that the principal could revendicate as
owner, even though the agent who buys in his own name could also do
so. 361 On the third point, assuming a true consignment agreement, the con-
signor would always be able to revendicate from wrongfully-holding third
parties since the powers of the mercantile agent cannot rise above those of
the consignor.362 What is more, the mercantile agent will also be permitted
to revendicate either as a deemed owner under article 1740 C.C.L.C., or as
a special mandatary in possession. 363
74. Statutory Transferees – The rights of trustees in bankruptcy, liquidators
of companies and other statutory transferees are set out in special legislation.
There is considerable controversy as to whether these various transferees
are owners, quasi-owners, administrators or liquidators, and whether they
are vested with real rights in the property transferred to them.364 Of course,
in each of these circumstances the legislation in question sets out in detail
the powers of the transferee to revendicate from the transferor, from wrong-
fully-holding third parties and even from certain bona fide third parties in
36See Crane v. Nolan (1875), 19 L.C. Jurist 309 (Q.B.).
36’See British American Oil Co. v. Roberge (1963), [1964] B.R. 18; but, if there is an express
or implied contract of sale between principal and factor, the factor is pure and simple owner
and the principal loses any right to revendicate as owner. See Roger v. COt (1949), [1949] B.R.
260.
362See art. 1740ff. C.C.L.C. See also Re Distributions Omnibus Inc. (10 May 1983), Montreal
500-11-003723-828 (Sup. Ct). In other words, while the consignee may act so as to extinguish
the consignor’s right of ownership, should a thief make off with the property, for example, the
consignor could revendicate as owner.
363Lahoud v. Truchon (1949), [1949] B.R. 477.
36See, as concerns trustees in bankruptcy, J.M. Deschamps, “Le syndic: Un successeur du
d6biteur? Un cessionnaire? Un repr6sentant des cr~anciers?” [1 985] Meredith Mem. Lect. 245;
and, as concerns liquidators, M. & P. Martel, La compagnie au Quebec: Les aspectsjurdiques
(Montreal: Th6l6me, 1985) c. 33.
1986]
ENFORCING RIGHTS IN MOVEABLES
possession such as, in the case of bankruptcy, secured creditors. 365 In other
words, from the moment of the receiving order, the bankrupt or the company
administrators, as the case may be, lose the capacity to exercise their rights
to revendicate as owner or administrators. 366
Because of the extensive powers given to the transferee, it is important
to fix precisely the moment of the transfer. In the case of bankruptcy, the
transfer occurs at the time of the receiving order and not when an interim
receiver is appointed, even though an interim receiver has a limited power
to seize and dispose. 367 In cases of winding up, different regimes apply to
federal and provincial corporations. Where a provincial corporation, which
is not bankrupt, has been voluntarily dissolved, the transfer occurs when
liquidators are named by a resolution of a shareholders meeting;368 if the
corporation is dissolved judicially, the transfer occurs when the Superior
Court so orders and names liquidators. 369 When a provincial corporation
is being wound up for insolvency, the federal Winding- Up Act applies and
the transfer occurs when a liquidator is appointed by the Superior Court.370
Where a federal corporation which is neither insolvent nor bankrupt is being
wound up, no transfer need take place, but the powers of company admin-
istrators are circumscribed from the time of a shareholders special resolu-
tion, or a judicial order, even though in the latter case a liquidator is also
appointed. 371
In each of these cases the right of the transferee to revendicate is, at
once, greater and lesser than the right of the prior owner (or other titulary
of a real right). For this reason he should be seen as having independent
365See Bankruptcy Act, supra, note 122, ss 50(5) and 49(2); the Winding-Up Act, R.S.Q. c.
L-4, ss 10-13 and 31; the Winding-Up Act, R.S.C. 1970, c. W-10, ss 33 and 35. In the case of
a non-bankrupt federal corporation, the winding up involves no transfer of property to a
liquidator: see Canada Business Corporations Act, S.C. 1974-75-76, c. 33, ss 204 and 207.
366See ss 47-50 of the Bankruptcy Act, ibid.; ss 10 and 14 of the provincial Winding-Up Act,
ibid.; s. 212 of the Canada Business Corporations Act, ibid.; and ss 19-22 and 33-40 of the
federal Winding-Up Act, ibid.
367See the Bankruptcy Act, ibid., ss 28 and 50(5). See also A. Boh6mier, “Introduction –
requete de faillite –
cession des biens” in Barreau du Qu6bec, C.EPB.Q., vol. 14 (Cowansville,
Qu6.: Yvon Blais, 1983) 1 at 13-16; and A. Boh6mier, “Le d6saisissement de l’inopposabilit6
des actes pr6judiciables A la masse” in Barreau du Qu6bec, supra, 121 at 126-31.
368See the provincial Winding-Up Act, supra, note 365, s. 5.
369See ibid., ss 24, 25 and 30.
370See the federal Winding-Up Act, supra, note 365, s. 19. If the corporation is bankrupt a
receiving order under the Bankruptcy Act may also be made.
371See the Canada Business Corporations Act, supra, note 365, ss 204(6) and (7) and 206(3)-
(5). Where a judicial liquidation is sought under s. 207 a liquidator is named, who takes office
under s. 213 (as am. S.C. 1978-79, c. 9, s. 67), and has the powers set out in s. 214ff. If the
corporation is insolvent or bankrupt a receiving order will be made under the Bankruptcy Act.
REVUE DE DROIT DE McGILL
[Vol. 31
real rights of administration in the transferred property. That is, while pro-
vincial law may provide the procedural apparatus by which the transferee’s
rights are exercised, the rights themselves do not correspond at all points
with substantive provincial law. 372 In this sense, a situation not unlike that
which prevails in France will arise: the ordinary rules and concepts of the
civil law will be ousted.373
75. Scope of Revendication of Quasi-Owners and Statutory Transferees –
In each of the circumstances reviewed, the Code or a special statute describes
unorthodox rights primarily by reference to notions of ownership. The inability
of the law to permit transfers for the purposes of administration leads to
characterization of these devices as establishing a regime of ownership sui
generis. Unlike section 178 security and the trust for bondholders, two other
devices often held to give rise to ownership sui generis yet both capable of
characterization within the conceptual vocabulary of the civil law as acces-
sory real rights, it would seem that the trust, mercantile agency and the
notion of a statutory transfer cannot be understood on traditional civil law
principles. The Code at this point lacks a theory of a third form of real right,
namely, a real right of administration. 374
Nevertheless, the status of various actors in these unorthodox schemes
to revendicate from wrongfully-holding third parties, as well as from wrong-
ful holders inter se – namely the constituant, the beneficiary and the trustee
of the trust, the principal and the mercantile agent, or the bankrupt and the
trustee or liquidator, as the case may be –
is not in doubt. The conditions
for revendication, however, depend on the specific terms of the Code or
statute. Thus, while a bankrupt or a company in liquidation remains owner,
it loses the capacity to exercise its right as owner. By contrast, while the
income beneficiary of a trust never becomes owner, he may, nevertheless,
372This problem is less acute in non-bankruptcy company liquidations since the transferee,
in principle, simply steps into the shoes of the corporation. He must then find his procedural
recourses within existing provincial law. The trustee in bankruptcy, however, acquires a status
quite unlike that of any other titulary of rights in the civil law. See Deschamps, supra, note
364. Moreover, unlike titularies of principal or accessory real rights, trustees and liquidators
cannot use or dispose of the property to their benefit. That is, they do not have either a real
right of enjoyment or a real right of security. For this reason, classical theory would consider
them not as having rights, but mere powers.
373See, supra, note 195 and accompanying text. For this reason also, in developing a theory
of “real rights of administration”, it is important not to place undue stress on the position of
the trustee in bankruptcy by comparison with company liquidators.
374The provisions of the Draft Civil Code on the “Administration of the Property of Others”
appear to suggest the possibility of such a new real right. See the Draft Civil Code, supra, note
9, Book 4, Title 6; and Commentaries, supra, note 51 at 372-75 and 505-25. Unfortunately the
National Assembly does not seem to have developed this idea further. See Bill 20, An Act to
Add the Reformed Law of Persons, Successions and Property to the Civil Code of Quebec, 5th
Sess., 32d Ieg. Qu6., 1984.
1986]
ENFORCING RIGHTS IN MOVEABLES
be able to revendicate as titulary of a jus ad rem in possession. In these
situations determining priority of the right to immediate possession in com-
peting actions in revendication is often complex. 375
Appendix
1.
Titularies of Existing and Actual Real Rights
A. Owners
B. Titularies of Principal Real Rights
usufruct
use
statutory real rights
contractual principal real rights
C. Titularies of Accessory Real Rights
possessory accessory real rights
a. pledge
b. documentary pledge
non-possessory accessory real rights
a.
b. Maritime mortages
c. bank security; transfers of property-in-stock; trust deed security
d. provincial tax claims
e.
contractual accessory real rights
special pledges
1.
2.
3.
4.
1.
2.
1.
2.
3.
4.
1.
2.
3.
4.
5.
1.
2.
D. Titularies of Real Rights of Administration
trusts
mercantile agents
trustees in bankruptcy
company liquidators
I1. Titularies of Personal Rights
A. Titularies of a jus ad rem
lessees
borrowers for use
income beneficiaries of a trust in possession
non-owner spouses
owner-debtors of property under seizure
B. Titularies of Execution Preferences
right of retention
in possession
a.
b. exceptio non adimpleti contractus
not in possesion
a. unpaid sellers
b.
c.
d. general privileges
lessors of immoveables
tithe creditors
375That is, unlike the ordinary case of a competition between titularies of real rights, these
unorthodox arrangements frequently sever use and possession, with the result that the basic
is often unreliable in determining
criterion of revendication –
priority.
the right to physical control –
654
McGILL LAW JOURNAL
[Vol. 31
C. Those With a Contractual Obligation of Care and Return
1. Who Act in Their Own Name
B. Those out of possession
substitutes
heirs and legatees by contract of marriage
heirs and legatees including the Crown
capital beneficiaries of a trust
sellers under resolutory condition
donors
IV. Persons in Physical Control Without Contract
A. Persons Claiming Real Rights
finders
purchasers of the thing of another
thieves
B. Persons who are Mere Holders
negotiorum gestores
recipients of a thing not due
creditors in possession having seized the property of a third party
carriers
innkeepers
a. depositaries
b.
c.
d. guardians
e.
sequestrators
f. mandataries
g.
h.
Legal Representatives
a. tutors
b. curators
c. advisors
d. Paulian plaintiffs
e. plaintiffs in oblique action
trustees
testamentary executors
conditional buyers
promisee purchasers
buyers under a term
heirs in provisional possession
buyers under protected sales
III. Titularies of Potential or Eventual Real Rights
A. Those with physical control
2.
1.
2.
3.
4.
5.
1.
2.
3.
4.
5.
6.
1.
2.
3.
1.
2.
3.
