No. I ]
CASE AND COMMENT
QUEBEC CIVIL CODE – AMENDMENT AND REVISION
1954-1955
AMENDMENTS
The most recent legislative amendments regarding the Quebec Civil Code
concern the legal status of married women in the Province.
Prior to the new legislation, Article 188 of the Code provided that a wife
could demand separation on the ground of her husband’s adultery, only if the
latter kept his concubine in the common habitation. In practice, the husband’s
adultery, wherever it took place, was treated by the Courts as grievous insult,
which is a sufficient ground for the demand in separation by either party
(Article 189).
The removal of the qualifying clause in Article 188 does away with an out-
dated social outlook and places the wife in the same position as the husband
under Article 187.
A further amendment deals with the capacity of married women to enter
into contracts. In general, the Civil Code provides that all persons have
capacity to enter into contracts (Article 985). However, there was a group
of persons, enumerated in Article 986, whose incapacity to enter into con-
tracts was legally established. This enumeration included minors, interdicted
persons, feeble-minded and insane persons, and married women.
The new legislation removes married women from this list. The effects of
the incapacity established under Article 986 were not felt by the average
housewife, who rarely enters into contracts. Further, the Courts upheld the
legal fiction that wives enjoyed a tacit mandate from their husbands which
enabled them to acquire household necessities. However, it did affect the
married woman once she stepped out of her purely domestic role and entered
into business, where the capacity to enter into contracts is of evident necessity.
The new legislation removes an irksome and outmoded provision from the
Code.
Having removed married women from the list of incapables contained in
Article 986, the legislators added a: new article, 986a, to clarify their present
position. This new article provides that: “The capacity of married women
to contract, like their capacity to appear in judicial proceedings, is determined
by law.”
Thus, although married women are no longer incapable of contracting by
the mere fact of their status, their capacity to enter into contracts is still
restricted. In judicial proceedings, the married woman common as to property
must obtain the authorization of her husband or of a judge for all actions
involving either moveable or immoveable property.
The married woman separate as to property does not require such author-
ization in suits involving moveable property, although, as a matter of pre-
caution, the authorization is always procured since our Courts are not im-
peratively bound by past decisions, and members of our Bench are not
unanimously in accord in this matter.
McGILL LAW JOURNAL
(Vol. 2
In regard to immoveable property, the married woman separate as to
property must always obtain authorization, with the exception of actions
involving reserved property (Article 1425a). Here again, however, author-
ization is in practice always obtained, since the burden of proving that the
property in question is in fact reserved property is always on the married
woman, and it is a difficult burden to discharge.
These same rules apply to the capacity of married women to enter into
contracts, the sole difference being that whereas in judicial proceedings, the
assistance of the husband in the suit suffices, in contracts, the married woman
must always secure, where required, the authorization either of her husband
or of a judge.
It is to be hoped that this new legislation reflects a trend that will become
more predominant with the passage of time, and that the legal capacity of
married women to enter into contracts will become the rule rather than the
exception. Whether such a change can be effected through judicial interpreta-
tion or whether further amendments by the Legislature will be required, is a
question that remains to be answered.
REVISION
Bill 41, sanctioned in February of this year, has set in motion the machinery
which will result in the revision of the Civil Code.
The Quebec Civil Code was originally promulgated and brought into force
in August of 1866, almost a year before Confederation. Since that time, social
and economic changes in the pattern of Quebec life have made it necessary
that many alterations and additions be undertaken by the Legislature. Such
changes have been of a piecemeal character, taking place under the pressure of
evident necessity. No overall revision has, however, been attempted. Under
these circumstances, the present revision will be a most welcome one to
members of the Bench and Bar of the Province, and to students of the law.
The jurist appointed to prepare the draft of the revision has been instructed
to adhere to the legislative method followed when the Code was first drawn
up, “maintaining its distinctive features, making the requisite corrections of
style and arrangement and advising as to such substantive changes as might
advantageously be made therein.” In this way, it is to be hoped that the revised
Code will embody the outstanding characteristics of the old Code, while
incorporating the alterations made necessary by the evolution of time.
The former Chief Justice of the Supreme Court of Canada, the Rt. Hon.
Thibaudeau Rinfret, has been entrusted with the presentation of the revised
draft of the Code. Other members of Quebec’s legal profession will be called
upon to assist him, at the discretion of the Attorney-General. It is indeed
fortunate that so eminent a jurist should be available and willing to undertake
such a task. The outcome is awaited with much interest.
JoHN LAwRENcE*
*Third Year Student.
