1995]
H.W. BAADE – QUEBEC CIVIL LAW
John E.C. Brierley & Roderick A. Macdonald, eds., Quebec Civil Law: An
Introduction to Quebec Private Law. Toronto: Emond Montgomery, 1993.
Pp. lviii, 728 [$90.00, $65.00]. Reviewed by Hans W. Baade”
On January 1, 1994, the Civil Code of Quebec (C.C.Q.) came into force.
Consisting of 3,168 articles and accompanied by an implementing statute num-
bering no less than 719 provisions,’ it is highly likely to be regarded by future
generations as one of the most comprehensive civil law codifications of this
century. Such a result clearly was the intent of its creators. As stated in its Pre-
liminary Provision, the Code “governs persons, relations between persons, and
property,” and codifies not only the private law relations encapsulated in these
three categories, but the civil law as such:
The Civil Code comprises a body of rules which, in all matters within the
letter, spirit or object of its provisions, lays down the jus commune, ex-
pressly or by implication. In these matters, the Code is the foundation of all
other laws, although other laws may complement the Code or make ex-
ceptions to it!
It should be noted that jus commune appears, in the French text, as “droit
commun”. As exemplified by standard references, specifically in the Commer-
cial Codes of Spain and of Mexico 3 and more generally, in other Romance-
language countries as well, this latter term designates general law rather than
special legislation, even that of general application. In post-codification private
law parlance, “droit commun” embodies the Civil Code instead of legislation
outside of that Code and not suppletory to it. Jus commune, on the other hand,
is a term traditionally employed (and presently used) to describe Roman law as
received and applied in European countries and their colonies before the nine-
teenth- and twentieth-century codifications.4 When used together, these two
“Hugh Lamar Stone Professor of Civil Law, The University of Texas at Austin.
McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 40 McGill L.J. 571
Mode de r~f6rence: (1995) 40 R.D. McGill 571
Law Respecting the Implementation of the Reform of the Civil Code, S.Q. 1992, c. 57
[hereinafter “Transitory Provisions”].
2 Preliminary Provision C.C.Q.
3 Art. 2 Spanish Commercial Code (Codigo de Comercio y Leyes Complementarias); art. 1050
Mexican Commercial Code (Codigo de Comercio y Leyes Complementarias). Both refer to dere-
cho comtnn.
4 See e.g. R. Zimmermann, “Roman-Dutch Jurisprudence and Its Contribution to Roman Pri-
vate Law” (1992) 66 Tulane L. Rev. 1685.
572
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 40
terms have one central meaning for civil lawyers: the civil law, received and/or
codified, is the real common law, reflecting the senior legal tradition.
Coming from the only civil law province of Canada, a legislative assertion
such as the Civil Code of Qudbec requires the most solid of foundations. That
foundation is amply supplied by the work here under review.5 The joint product
of fourteen members of McGill University’s Faculty of Law and Institute of
Comparative Law, the book is a summa of Quebec civil law on the eve of its
most recent codification. Professors Brierley and Macdonald, both former
deans of McGill’s Faculty of Law, have contributed Part One, entitled “Nature,
Scope and Techniques of the Civil Law’ 6 and those portions of Part TWo,
“Institutions of the Civil Law”, 7 not attributed to other authors. The work is de-
voted, fittingly enough, to those who have taught civil law at McGill since
1853.8
The historical introduction9 should be required reading not only for com-
parative lawyers generally, but also for all those who take an interest in the
survival of islands of the civil law (codified as well as uncodified) in the sea of
Anglo-American common law. As is well known, the civil law survived after
1759 initially because it was seen by the francophone population of Lower
Canada,0 and especially by the de facto or perhaps even de jure established
Roman Catholic Church, as one of the three bulwarks, along with language and
religion, of a God-fearing, closely knit, mainly rural community against the en-
croachments of commercialism, materialism, and irreligion (in other words,
England, the United States, and revolutionary France). Almost simultaneously
with the work here under review, Professor Greenwood’s study on “Law and
Politics in the Era of the French Revolution”” has documented the hostile reac-
tion of Canadiens to these three forces.
The point at which Quebec ceased to be, in Mignault’s words, “surtout fille
de la France coutumire”‘2 during the nineteenth and twentieth centuries, is a
‘ J.E.C. Brierley & R.A. Macdonald, eds., Quebec Civil Law: An Introduction to Quebec Pri-
vate Law (Toronto: Emond Montgomery, 1993) [hereinafter Quebec Civil Law,]
6Ibid. at 5-198.
71bid. at 199-713.
‘Ibid. at iii-iv.
9Ibid. at 5-97.
‘0 “Lower” Canada was created in 1792.
” F.M. Greenwood, Legacies of Fea; Law and Politics in Quebec in the Era of the French
Revolution (Toronto: University of Toronto Press. 1993).
‘2 E-B. Mignault, “Le Code Civil au Canada” in Le Code Civil 1804-1904, Livre diu Centen-
naire, t. 2 (Paris: Arthur Rousseau, 1904) at 725.
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H.W. BAADE – QUEBEC CIVIL LAW
matter of debate. Professor Brierley is the leading historian of the drafting of
the Civil Code of Lower Canada (C.C.L.C.) (1866), 3 and Professor Macdon-
ald, the chronicler of legal education at McGill University and of Quebec legal
literature.’4 Not surprisingly, they emphasize that the Civil Code of Lower Can-
ada combined the pre-revolutionary French legal tradition with the nineteenth-
century economic liberalism closer to the heart of the mainly anglophone busi-
ness community of Montreal. 5 Their meticulous account of Quebec civil law in
the first century after codification 6 acknowledges that the perception of the
Code as the “legal embodiment of French legal culture” was the main interpre-
tive tendency in this period, although the authors themselves clearly prefer to
emphasize, even during this period, the “mixed character of Quebec civil law
and the diversity of the philosophic and cultural forces that inspired it.’ 17
This preference likely reflects the McGill Faculty of Law’s commitment to
a “polyjural, universalist and bilingual curriculum,” which Professor Macdon-
ald has traced to the late 1850s.’ 8 That commitment attracted, as the first non-
practising professor, Fredrick Parker Walton in 1897, and his successor as Gale
Professor of Roman Law and Dean, Robert Warden Lee in 1915. 9 These
names serve as synonyms, even today, for English-language literature of
French and Roman-Dutch law, respectively.20 J.J. (“Hamish”) Gow and H.R.
(“Bobby”) Hahlo come to mind as more recent McGill acquisitions from Scot-
land and South Africa. It is not unlikely that the continued magnetism of
McGill for leading scholars from anglophone civil law jurisdictions was also a
crucial factor in the survival of the civil law in Quebec, since this presence
visibly and decisively contradicted the conventional wisdom of anglophone
North America that all English-speaking people live under Anglo-American or
Anglo-Canadian common law.
Walton had become the first full-time professor of law in Quebec (and, ap-
parently, in all of Canada) in 1897; in 1966, Paul-Andr6 Crrpeau of the McGill
” J.E.C. Brierley, “Quebec’s Civil Code Codification: Viewed and Reviewed” (1968) 14
McGill L.J. 521.
“4 R.A. Macdonald, “The National Law Programme at McGill: Origins, Establishment, Pros-
pects” (1990) 13 Dalhousie L.J. 211 [hereinafter “National Law Programme”]; R.A. Macdonald,
“Understanding Civil Law Scholarship in Quebec” (1985) 23 Osgoode Hall L.J. 573.
” Quebec Civil Law, supra note 5 at 35.
‘6Ibid. at 33-84.
Ibid. at 68.
“”National Law Programme”, supra note 14 at 225.
‘9 Ibid. at 243,248.
20 M.S. Amos & EP Walter, Introduction to French Law, 1st ed. (Oxford: Clarendon Press,
1935); R.W. Lee, An Introduction to Roman-Dutch Law, 1st ed. (Oxford: Clarendon Press, 1915).
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[Vol. 40
law faculty became “the first full-time academic in Quebec ever to be charged
with responsibility for major law reform.”2′ His appointment as head of the
newly-created provincial Civil Code Revision Office (C.C.R.O.) coincided
with the “silent revolution” within francophone Quebec society, a phenomenon
documented dramatically by statutory provision for civil ceremonial marriage
in 1968(!). Professor Crdpeau “was able to marshall the financial resources of
the government of the day and the human resources of the legal professions, the
bench, the university world, and the government itself, as well as foreign ex-
perts” to cast the task of Civil Code revision as a “vast process of rethinking” of
the civil law. 22
The major product of the first phase of that effort was the enactment of the
1980 Civil Code of Quebec.2 This was a partial recodification, devoted mainly
to family law and coexisting with (although increasingly displacing, through
partial revisions) the 1866 C.C.L.C. The historical introduction leaves us here
with a brief reference to “further legislative activity” between 1980 and 1989.
The historical survey concludes by stating:
The implications of the work of the C.C.R.O. for the future of Civil law, as
reflected through the completed Civil Code of Quebec, cannot be evaluated
until the Code is fully implemented and its statutory complements are in
place. The interpretation of the Code, both doctrinally and judicially, will
turn upon the understanding of the place of a Code in the legal order and
its relation to the theory of sources it presupposes.24
The remainder of the work here reviewed should be read with this state-
ment in mind. For as initially mentioned, the C.C.Q. and its implementing leg-
islation did enter into effect on January 1, 1994, and the theory of sources
which it presupposes is spelled out, in so many words, in its Preliminary Pro-
vision. Furthermore, articles 6 and 7 of the new Code condition the exercise of
private law rights to the general and pervasive requirement of good faith and its
mirror image, the doctrine of abuse of right. It is difficult, with these provisions
in place, to read the next two chapters of the work here under review, dealing
with the sources and basic jural concepts of Quebec civil law,2′ without being
plagued by the nagging question as to their present utility. For unlike legal his-
tory generally, applied legal theory cannot well be divorced from the present.
2, Quebec Civil Law, supra note 5 at 86, note 71.
2 Ibid. at 86.
Ibid. at 93-96.
24 Ibid. at 97.
2’Ibid. at 98-198.
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H.W BAADE – QUEBEC CIVIL LAW
This brings us to the second main part of the book, devoted to “Institutions
of the [Pre-1994 Quebec] Civil Law.” It consists of some twenty-six chapters
and ten additional titles, each followed by a section entitled “For further read-
ing”. These bibliographic sections are of immense value, in particular since
they cite French-language sources not only in the professional and academic
law journals but also in symposia and Festschriften –
in effect further sub-
stantiating the editors’ claim that since 1865, “jurists in Quebec have produced
a coipus of scholarship that is without parallel elsewhere in Canada. ‘ 26 Refer-
ences to literature include some 1993 publications; statutory references stop at
1989.
There is, however, a fundamental question as to the current utility of a
summa (or perhaps more accurately, of a glossa ordinaria) of Quebec civil law,
codified commercial and private international law as they stood in 1989, even if
updated interstitially by citations to more recent literature. The pre-eminent
source of Quebec civil law is now, and will be for some time to come, the Civil
Code of Quebec which entered into effect on January 1, 1994. In their Preface,
the editors state that readers should have at hand a recent edition of the
C.C.L.C.,27 but surely a still more recent edition of the C.C.Q., with the appro-
priate implementing texts and concordances, is much more essential even for
legal historians. The ultimate test of the influence of the past is not the most re-
cent past, but the present.
In the following discussion, this proposition will be tested in five areas of
interest to comparative lawyers and those actively engaged in transnational le-
gal advice: forced heirship, trusts, security interests in movables, products li-
ability, and recognition of foreign judgments. The rationale behind this selec-
tion is reasonably familiar: the Quebec Act 177428 had abolished the ligitime;
trusts in Civil law countries cannot be based on the (Anglo-American) common
law distinction between “legal” and “equitable” title; modem commercial fi-
nance needs more than possessory pledges; products liability has become
“Europeanized”; and Quebec does not enjoy a good reputation in international
civil procedure.
To take this last matter first, Professor Patrick Glenn’s summary of private
international law states, “Quebec law currently permits re-examination of the
merits of the foreign decision, even when the foreign court was competent ac-
6 Ibid. at 125.
27 Ibid. at iii.
28An Act for Making More Effectual Provision for the Government of the Province of Quebec in
North America (U.K.), 14 Geo. 3, c. 83.
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[Vol. 40
cording to Quebec rules and where there are no other obstacles to recogni-
tion.”2 9 He rightly finds this possibility of re-examination of the merits of for-
eign judicial decisions “unwarranted”.” So did the Legislature, for “examen au
fond” of foreign judgments is expressly barred by article 3158 of the C.C.Q.
This provision does not, however, apply to foreign judgments rendered or re-
sulting from foreign judicial proceedings instituted before January 1, 1994,31
thus starkly underlining the abrupt nature of this highly welcome break with the
past.
As described by Professor Brierley, 2 freedom of testation is one of the fun-
damental principles of the Quebec law of succession, but in 1989 it was quali-
fied at least indirectly by the statutory recognition of post-mortem alimentary
claims by the surviving spouse and ascendants, as well as descendants in the di-
rect line. Like the German Pflichtteil, these are pecuniary claims against the
heirs, not rights of inheritance strictly speaking. Departing in this respect from
the testators’ family maintenance model originating in the Antipodes and fol-
lowed generally in the common law Commonwealth, these claims are subject
to rather drastic limitations as to time and amount. The 1989 reform thus de-
scribed is now reflected in articles 684-695 of the C.C.Q. In its treatment of this
subject, the work here reviewed thus reflects current law.
Trusts made their first appearance in Quebec through legislation enacted in
1879 and integrated into the C.C.L.C. in 1888.33 Trusts are dealt with in various
contexts in the work here under review, readily located through the index. Pro-
fessor Jeremy Webber notes that “the absence of a doctrine of estates and the
presence of the concept of indivisible ownership are obvious embarrassments
to a clear theoretical understanding of the trust in Quebec.” 3 In the settlor-
trustee-beneficiary triangle, somebody has to be the owner –
or perhaps, no-
body. That, at least, is the solution adopted by the C.C.Q. Article 1261 pro-
vides, in so many words, that the trust patrimony, consisting of the property
transferred in trust, is “autonomous and distinct from that of the settlor, trustee
or beneficiary.” Consequently, none of the aforementioned parties has any “real
right” (right in re) in the object of the trust. Pursuant to articles 1290 and 1291,
the settlor, the beneficiary “or any other interested person” can enforce the
terms of the trust against the trustee and, with judicial authorization, against
29 Quebec Civil Law, supra note 5 at 712.
Ibid.
3′ “Transitory Provisions”, supra note 1, art. 170.
32 Quebec Civil Law, supra note 5 at 334,347-49.
“3Ibid. at 77.
mIbid. at 275-76.
1995]
H.W. BAADE – QUEBEC CIVIL LAW
third parties on behalf of the trust. The trust res as “patrimoine d’affectation
autonome” created by article 1261 may indeed be the “strangest” among the
beasts in the forest,35 but it is also the newest. It surely deserved mention in the
work here under review.
Nonpossessory security interests in movables were also not enforceable
under the C.C.L.C. as originally enacted. Pursuant to article 1970, the privilege
created by the pledge of movables subsisted only while the creditor or an
agreed-upon escrow holder was in possession, and article 2016 defined hy-
pothec as a “real right upon immovables”. As chronicled by Professor David
Stevens, this system “was gradually overtaken by statutory innovation, com-
mercial practice, judicial interpretation, and amendments to the Code itself.’ 36
The result was a “hodgepodge” of exceptions to the initial codal scheme.37
Once again, the C.C.Q. has brought drastic change. Article 2665 provides, in so
many words, that a hypothec can be movable or immovable, and that a mov-
able hypothec can be created “with or without delivery of the movable hy-
pothecated.” Movable hypothecs without delivery are of course subject to spe-
cial rules, but just like hypothecs of immovables, they can be set up against
third parties if registered (“published”). 3′ This reform too, should have been
“published” in the work here reviewed.
We turn, finally, to products liability. The background, narrated by Profes-
sor Daniel Jutras, sounds reasonably familiar to students of comparative law.
Article 1053 of the C.C.L.C., corresponding to article 1382 of the Code civil,39
was predicated on “fault”, and article 1054(1) of the C.C.L.C., corresponding
to article 1384 C.N., relating to damage by things, was hobbled with the re-
quirement of “garde de chose”. Prodded by the Privy Council, Quebec courts
eventually followed late-nineteenth century French jurisprudence in recogniz-
ing article 1054(1) as an independent basis for liability, but, this time to some
extent restrained by the Privy Council, they did not abandon the “centrality of
fault in Quebec law”.
This represented the state of the law in 1993, at least for those who were
not victims of industrial or automobile accidents subject to special statutes out-
3 It is characterized as such by M. McAuley & J. Talpis, ‘The Quebec Trust in the ‘Real
in Confirences sur le Nouveau Code Civil du Quibec (Cowansville, Que.: Yvon Blais,
World’
1992) 55 at 59.
6 Quebec Civil Law, supra note 5 at 612.
” Ibid. at 619.
3 Arts. 2663, 2696-2701 C.C.Q.
” (1804) Code civil des Frangais [hereinafter “C.N.”].
40 Quebec Civil Law, supra note 5 at 459.
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side the Code.4 Moreover, as reported by Professor Patrick Glenn in another
context, the Legislature had shown strong distaste for products-liability plain-
tiffs in other jurisdictions. 2 Professor Glenn reports that the provincial Code of
Civil Procedure provides Quebec courts with “exclusive jurisdiction over all
demands or actions founded on liability for damage suffered in or outside Que-
bec as a result of exposure to or use of raw materials, whether processed or not,
originating in Quebec., 43
This legislation continues to present an obstacle to the recognition and en-
forcement of foreign products liability judgments against Quebec asbestos
miners and manufacturers, since article 3165(1) of the C.C.Q., in conjunction
with article 3155(1), denies such recognition and enforcement where, by reason
of the subject matter, Quebec law asserts exclusive jurisdiction. Products liabil-
ity, however, came to Quebec on January 1, 1994. Article 1468(1) of the Code
provides:
The manufacturer of a movable property is liable to reparation for injury
caused to a third person by reason of a safety defect in the thing, even if it
is incorporated with or placed in an immovable for the service or operation
of the immovable.
The second paragraph of that article extends the same rule to suppliers
(including importers), and article 1474(2) qualifies products liability by provid-
ing a “state-of-the-art” defense. “Safety defect” is further defined in article
1469 to include design and manufacturing defects as well as failure to warn.
Article 85 of the Transitory Provisions provides that civil liability is governed
by the legislation in force at the time of the causal fault or act. Whether this
justifies omission of reference to the forthcoming products-liability revolution
in Quebec seems doubtful.
Individual contributions to the work here under review should not be
faulted, of course, for complying with the editors’ decision to exclude comment
on the new C.C.Q., enacted at the time but not as yet in force. The editors ad-
vance two reasons and one excuse for that decision. The reasons provided are
that a critical examination of the new enactment and its comprehension as “but
“Ibid. at 460. Note that product liability does not appear in the index.
42 “Other jurisdictions” refers mainly, one supposes, to the Eastern part of this reviewer’s state
of residence (see most recently Amchem Products Inc. v. British Columbia (Workers’ Compensa-
tion Board), [1993] 1 S.C.R. 897, 102 D.L.R. (4th) 96).
3Quebec Civil Law, supra note 5 at 703.
1995]
H.W BAADE – QUEBEC CIVIL LAW
the latest legislated expression of the Civil law tradition” will be more readily
accessible only upon the basis of a “general” work such as this. It would be
“premature to put forward any synthetic perspective … prior to the accumula-
tion of several years of judicial and doctrinal exposition of the new Code and a
like experience with the professional practices by which its specific prescrip-
tions are given concrete expression.” The excuse offered provides that the in-
clusion of comment on the “new” Code would have “expanded the compass of
the present work, already lengthy, beyond manageable proportions.”‘
Turning first to the excuse: A compendium of 728 pages on the entire civil
law, codified commercial law, and private international law of Quebec in his-
torical context is not “lengthy” but rather, given its comprehensiveness, admi-
rably concise. Coverage of the “new” C.C.Q. could have been accomplished by
short synopses, like Theodor Kipp’s notes on the German Civil Code in the
1900 and 1906 editions of Bernhard Wmdscheid’s authoritative treatise on the
jus commune as it prevailed in Germany through December 31, 1899.46
The editors have chosen instead, in the Year XI, to cut short their account
of the “ancien droif’ and the “droit intermidiaire” of Quebec by limiting it to
the “projee’ of the Year ViII. The Code civil finally enacted by the Law of the
30th of vent6se of the Year XII was also “but the latest expression of the Civil
law tradition” at that time
It did, however, set its own tradition which is still
very much with us today. The C.C.Q., too, might be (at least so it is hoped)
more than an episode in the history of the civil law of the province.
That said, it remains to acknowledge the outstanding value of the work
here under review as a summa of pre-1994 Quebec civil law in historical per-
spective. It should have its place on every comparative lawyer’s bookshelf –
along with the Code that has at last crowned the work of our other distin-
guished colleague at McGill, Professor Paul-Andr6 Cr6peau.
4Ibid. at iii.
4′ ibid.
B. Windscheid, Lehrbuch des Pandektenrechts, 8th & 9th eds. by T. Kipp (Frankfurt: Rtitten
& Loening, 1900 & 1906).
4, On Nov. 24, 1793, in the wake of the French Revolution, the National Assembly of France
decreed that a new era began with the foundation of the Republic on Sept. 22, 1792. The Legisla-
ture decreed that 1792 was Year I. The months of the year were also renamed (vent6se was the
third winter month) and each divided into three ten-day periods called decades. The Republican
calendar remained in force until Jan. 1, 1806 when France returned to the Gregorian calendar (R.
Batiza, “Origins of Modem Codification of the Civil Law: The French Experience and Its Impli-
cations for Louisiana Law”(1982) 56 Tulane L. Rev. 477 at note 85, p. 497).
