Reconceiving the Symbols of Property: Universalities, Interests
and Other Heresies
Roderick A. Macdonald*
Doctrinal evaluation of the Civil Code of Qua-
bec has tended to take one of two forms: either
praise for its success in modernizing private law
while maintaining a fidelity to the “civil law tra-
dition”; or criticism for its conceptual confusions,
neologistic language, overreaching ambition and
disregard for Quebec’s civilian heritage. This
essay rejects both of these global understandings
of the Code.
The author focusses on the legislature’s at-
tempt to reconcile the demands of a modem, con-
sumer economy with the structure of property en-
titlements believed foundational to the Civil law.
Two ideas are explored in detail: the theory of
patrimony and the theory of real and personal
rights. Under the Civil Code of Lower Canada,
exceptions to these basic principles of property
entitlement were so limited that inherited theory
withstood the assaults of recalcitrant experience.
In the Civil Code of Quebec, the legislature
attempted to preserve these principles –
attenu-
ating them where necessary to account for previ-
ously recognized exceptions. Nevertheless, their
number and importance (especially as a result of
the development of the non-gratuitous trust and
the hypothec on moveables, claims and universal-
ities of property) is such that traditional principles
relating to patrimony and the nature of real and
personal rights can no longer serve their symbolic
purpose.
The author argues for a reconception of these
two symbols of property. He suggests that the
idea sought to be captured in the concept of pat-
rimony is better expressed by recognizing a more
general category of juridical universalities –
of
which patrimony in the strict sense is only one
example; and he suggests that the fundamental
distinction between real rights and personal rights
should be overtaken by a more general concept of
property entitlement –
the idea of interests. This
type of reconception will ensure that the Civil
Code of Quebec is able to assume the traditional
vocation of a private law codification –
to serve
as a civil constitution.
Toute analyse doctrinale du Code civil du Qud-
bec tend ii prendre l’une de ces deux formes : ou
bien elle reconnait son effort i moderniser le droit
priv6 tout en restant fiddle ii ]a
McGILL LAW JOURNAL
[Vol. 39
assumption persisted notwithstanding that legacies to fiduciaries had long been
an accepted practice, achieving textual recognition in the Civil Code of Lower
Canada in 1866,62 and that after 1888 the text of the Code specifically elabo-
rated much of the detail of the fundamental tri-partite relationship characteristic
of the trust.63 Acceptance and extension of the institution was, in some measure,
impeded because the dominant doctrinal opinion had difficulty integrating the
alternative attribution of benefit, burden and administration presupposed by the
trust into the property regime of the Civil law. In particular, this was reflected
in uncertainty as to the title of the trustee as the person to whom the trust prop-
erty was apparently conveyed. Because the subjectivist theory commanded that
property (and a fortiori, a universality of property) could not exist without a
titulary who would be vested with a beneficial vocation, it was difficult to
decide which of the parties within a trust relationship was the owner. In the
absence of codal indication, and in order to avoid a gap in the passing of title
to property whenever a future beneficiary was not yet in existence, courts ulti-
mately came to the view that the trustee had a sti generis ownership title.’
Yet given the essential purposes of the trust, it is undesirable for the pat-
rimony of the trustee to be confounded with the property affected to the trust.
While the Civil Code of Lower Canada provided for the exclusion of the trus-
tee’s other assets from seizure by creditors of the trust,65 the converse exclusion
of the trust property from seizure by the trustee’s creditors was not textually
elaborated. Ironically, the presumed need to attach the trust patrimony to a per-
son, thus constituted a fundamental limitation on the extension of the institution
beyond the situations explicitly enumerated by the Code in the name of one ele-
ment of the subjectivist theory,66 while at the same time generating an exception
to another element of this same subjectivist theory –
the universal and unitary
nature of the patrimony.67
13. The panoply of difficulties with the subjectivist conception led German
jurists at the turn of the century to propose, as part of a larger theoretical recon-
struction of private law, a different defining locus for the patrimony: the notion
of appropriation.6″ As developed for French law in an attenuated form by Ray-
and for a recent survey in Quebec law, see both articles by Cantin Cumyn, supra note 31. See gen-
erally J.H. Merryman, “Ownership and Estate (Variations on a Theme by Lawson)” (1974) 48
Tulane L. Rev. 916.
62See arts. 869, 964 C.C.L.C.
63Arts. 98la-n C.C.L.C.
64See most recently Royal Trust’Co. v. Tucker, [1982] 1 S.C.R. 250, 40 N.R. 361 [hereinafter
Tucker]. For a practitioner’s defence of this decision, see Y. Pratte, “L’affaire Tucker et le rrle de
la Cour supreme” (1984) 15 R.D.U.S. 25.
65Art. 981i C.C.L.C.
66Nevertheless, for examples where the principle that trust property might constitute an auton-
omous patrimony has been accepted in statutory contexts in Quebec, see Charbonneau, supra note
27 at 527-28.
67See the discussions in D.N. Mettarlin, “The Quebec Trust and the Civil Law” (1975) 21
McGill L.J. 175; Caron & Brierley, supra note 30; A.J. McClean, “The Quebec Trust: Role Rich
and Principle Poor?” (1984) 29 McGill L.J. 312.
68See S. Guinchard, L’affectation des biens en droit privifrangais (Paris: Librairie grn~rale de
droit et de jurisprudence, 1976) for a discussion of the origins of this approach to patrimony.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
775
mond Saleilles, this idea came to be seen as a viable objectivist alternative, in
which the specific end (Zweck, finalite) being pursued became the criterion
upon which the idea of patrimony as a juridical universality was to be con-
structed. To understand the patrimony in such terms was, of course, consistent
with the general late nineteenth century intellectual trend of conceiving law as
the expression of purpose rather than will. This application of Ihering’s jurispru-
dence permitted jurists to conceive of rights as constitutive, not derivative, of
the patrimony, and of the patrimony as an ex post facto characterization of cer-
tain rights in relation to each other rather than as an ex ante agglomeration of
corporeal property.69
Once one detaches the notion of patrimony from its intellectual origins as
the subjection of the external corporeal world to the will of physical persons, the
distinction between a universal pre-determined juridical universality of corpore-
als and particular purpose-determined factual universalities of rights and obliga-
tions collapses. Patrimony becomes, like the indeterminate lesser universalities
described as “community property”, “acquests”, “family patrimony’, “property
of an enterprise” and “partnership property”, a current account” which gener-
ally has no legal significance until a relevant triggering event –
death, divorce,
requires its liquidation.7 Thus, in contempo-
dissolution, seizure, bankruptcy –
rary French doctrine, if there is to be a patrimony associated with legal person-
ality it is not because of the will of the person to reduce the external world to
control, but rather because within the universe of different factual universalities
affected to different purposes, legal personality is one such juridically determi-
nate purpose.72
Under this purposive or objectivist notion of the patrimony there is no nec-
essary connection between the patrimony and legal personality. For this reason,
it follows that it is no longer necessary to create legal personality artificially by
means of, for example, incorporation, in order for a physical person to affect
certain property to a separate patrimony. The same person may mediate not only
more general patrimonies affected to the transmissible succession or the com-
mon pledge of creditors, but also several specialized smaller patrimonies
affected to particular purposes. For example, it becomes possible to create a true
family patrimony, which groups together property from several sources, and
which is specially affected to the needs of the family, however contemplated.
Moreover, any such patrimony (including that affected to the common pledge
of creditors) could be transmitted as a universality during the lifetime of its
mediating titulary –
a feature which can serve to explain the operation of ju-
ridical institutions such as bankruptcy.
69As Gray, supra note 26 at 149, correctly notes, P. Cazelles (De l’idje de la continuation de
la personne comme principe des transmissions universelles (Paris: Librairie nouvelle de droit et
de jurisprudence, 1905)) most forcefully expresses the consequences of the theory.
7This formulation of the objectivist view of patrimony is derived from Gray, ibid. at 148-52.
71
1n some cases, however, the existence of these lesser universalities –
community property,
acquests, partnership property – has a reality prior to liquidation in the sense that the powers of
husband and wife, or managing and non-managing partners, as the case may be, can be limited.
72See e.g. the position adopted by H., L. & J. Mazeaud, Legons de droit civil, vol. 1, 4th ed. by
M. de Juglart (Paris: Montchrestien, 1967).
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[Vol. 39
14. While the objectivist theory of patrimony overcomes the endogenous dif-
ficulties afflicting the subjectivist theory, and better accommodates twentieth
century exogenous transformations to legal personality and objects of property,
many jurists reject it for ideological reasons.73 First, the theory seems to reduce
human beings to the level of mere purposes: surely, it is argued, in apparent dis-
regard for the concept of moral personality, human beings deserve a place in the
legal universe better than that afforded to animals, charities, businesses, etc. In
addition, human beings are finite in number while purposes can be infinite: once
patrimonies are to be determined by their purpose, there is no logical limit on
their number and, in the end, all executory transactions will be made to be pro-
perty specific (usually by means of a security device) in order to protect the
claims of creditors. Finally, the objection goes, once the patrimony is dissoci-
ated from legal personality, it is difficult to maintain the intellectual coherence
of legal rights: The notion of an obligation presumes titularies of rights, so how
can it be possible to conceive of a universality of property in respect of which
no legal person can claim rights?
B. Saving Appearances under the Civil Code of Quebec
the practical defects with the subjec-
15. These competing considerations –
tivist theory and the ideological reservations about the objectivist theory –
were reflected in the proposal of the Civil Code Revision Office to redefine pat-
rimony by reconciling the two theories.74 A cursory reading of the Civil Code
of Quebec suggests that, despite its departure from the form and substance of
the proposal of the Civil Code Revision Office, the legislature of Quebec has
also attempted to accomodate the inescapable attenuations to the classical con-
cept of the patrimony through an amalgam of objectivist and subjectivist the-
ories. Indeed, the two paragraphs of article 2 of the Code say as much:
2. Every person has a patri-
mony.
The patrimony may be
divided or appropriated to a pur-
pose, but only to the extent pro-
vided by law.
2. Toute personne est titulaire
d’un patrimoine.
Celui-ci peut faire l’objet
d’une division ou d’une affecta-
tion, mais dans Ia seule mesure
pr~vue par la loi.
The first paragraph provides textually for the notion of the patrimony, a
step which the Lower Canadian codifiers declined to take.75 The formulation of
the paragraph also indicates that the two root principles of the subjectivist the-
ory of the patrimony are advanced as starting premises: the idea of a unitary pat-
J.-L. Baudouin, Les obligations, 3d ed. (Cowansville, Que.: Yvon Blais, 1989) paras. 7-11.
73See Marty & Raynaud, supra note 45, para. 290; for a less strident position in Quebec, see
74See, notably, Draft Civil Code, supra note 10, proposed articles 1-4, IV-603.
75Given the date of its first elaboration in French Civil law, it is uncertain whether the Lower
Canadian codifiers, in fact, were aware of the concept of patrimony at the time the Code was being
prepared. Nevertheless, the technique of stating didactic codal articles was expressly eschewed by
the codifiers –
see Civil Code of Lower Canada: First, Second and Third Reports (Quebec: Des-
barats, 1865) at 8, 10 [hereinafter Codifiers’ Report] –
and it is unlikely, even had they known
of the doctrinal construction of patrimony by Aubry and Rau, that they would have included an
article resembling article 2 of the Civil Code of Quebec.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
777
rimony as the essential juridical universality; and its primary attachment to per-
sons.76 But, at the same time, the second paragraph of the article expressly rec-
ognizes the possibility of divisions of the patrimony and patrimonies by appro-
priation, two possibilities which directly contradict the theory underlying the
first paragraph. In other words, by making explicit a dogmatic doctrinal princi-
ple known not to be absolute, the legislature was thereafter also required to
make explicit its necessary qualifications, even where these qualifications run
counter to the general theory sustaining the root principle.77 To assess whether
this amalgam of subjectivist and objectivist theories succeeds in providing a
workable conception of patrimony, it is helpful to consider first what, if any-
thing, is left of the three specific legal consequences thought to flow from the
subjectivist theory, and then to examine the occasions under the Civil Code of
Quebec where the exceptions adverted to by article 2, paragraph 2 may be
found.
Obviously, in view of the second paragraph of the article, it can no longer
be affirnmed as an unassailable principle that only physical or legal persons may
have a patrimony: a patrimony by appropriation has no person as its titulary.
Second, but per contra, article 2, paragraph 1 nevertheless provides that every
legal person has a patrimony: thus, all persons have patrimonies, but all patri-
monies do not have persons. Third, to the extent that a particular patrimony is
attached to a person, it would appear to arise at birth, and to expire at death, sub-
ject in both cases to well-ingrained attenuations created by legal fictions relating
to unborn children, and to universal successors absorbing the legal personality
of the de cujus.7s Finally, the principle that a person may only have one indivis-
ible patrimony is expressly discarded by article 2, paragraph 2, which provides
that the patrimony may be divided to the extent provided by law.
16. Unfortunately, the second paragraph of article 2 is not well drafted. It
does, of course, provide for exceptions to both fundamental premises of the sub-
jectivist theory, but the interrelation of the two expressed exceptions is uncer-
tain. While it is implied by the notion of division of patrimony that the same
legal person remains titulary of all the fractions of the patrimony so divided,
should the same implication be drawn in respect of an appropriation, as para-
graph 2 suggests?79 Article 1260 provides that the act creating the trust is trans-
sons in article 302.
76The Code provides for a similar expression of the effect of patrimony in respect of legal per-
77See Commentaires, supra note 5 at 5, commentaries on art. 2.
78The affirmation would also be true in respect of legal persons, whose patrimony commences
at the time of their constitution or incorporation (subject to the assumption of pre-incorporation
contracts) and terminates at the time of their dissolution. Presumably also, where a patrimony is
appropriated to a purpose, as for example through a trust, it arises (in principle) at the moment of
appropriation (arts. 1264 C.C.Q.), and expires when the trust itself is terminated (arts. 1296-98
C.C.Q.).
79This query arises from a disparity between the English and French language versions of article
2, para. 2 –
the former leaving open the possibility that a patrimony by appropriation might be
created (like a corporation) with no assets transferred in the constituting act from another patri-
mony, while the latter more clearly suggesting that all patrimonies must initially begin as unitary
attributes of legal personality and that patrimonies by appropriation must, therefore, be carved out
of any existing patrimony attributed to a person in the law.
McGILL LAW JOURNAL
[Vol. 39
latory, and that the settlor retains no real rights (such as ownership) in the trust
property. Article 2 should not, therefore, provide, as an attenuation to the notion
that a patrimony must be attached to a person in the law, that the patrimony may
be appropriated to a purpose. For this is to confuse the matter by identifying sit-
uations where a new patrimony is created with those where an existing patri-
mony is simply divided.
The article is also confusing because it may be read as suggesting that only
the basic patrimony of a person referred to in article 2, paragraph 1 (or by impli-
cation, article 302) may be divided. If a patrimony by appropriation is a distinct
patrimony, should it not also be capable of division? When the different codal
hypotheses of divided patrimonies are examined it becomes evident that the
potential for dividing patrimonies by appropriation must also be considered.
This leads to the question whether either the division or the appropriation, not-
withstanding the last phrase of paragraph 2, can only exist where a canonical
formula for so doing is provided by law in the Code or elsewhere. That is, can
there be occasions where the effect of a codal institution is to divide a patri-
mony, or appropriate property to a purpose as a separate patrimony, even if the
terms division or appropriation do not appear, or are these restricted to enumer-
ated situations such as matrimonial regimes, successions and substitutions?
17. Like the concept of the patrimony, the notion of a divided patrimony is
textually new to the Civil Code of Quibec. Unlike the concept of the patrimony,
however, and despite the fact that instances of legal arrangements that could be
characterized as divided patrimonies existed in the Civil Code of Lower Can-
ada, it has no general doctrinal antecedents in Quebec. What exactly is the idea
of a divided patrimony? The Minister’s commentaries indicate that patrimonies
may be divided in respect of substitutions and matrimonial regimes.” But as
noted earlier, this is far from an exhaustive list of situations under the Civil
Code of Lower Canada, where the notion of the unitary patrimony was partially
ousted. What is more, within the Civil Code of Qubec, several of these situa-
tions, besides those arising in matrimonial contexts or in respect of substitutions
notably the successory separation of patrimonies, the legacy by general title
–
and the right of returned absentees to reclaim their property –
continue to
exist.8 Although the requirement that liquidators pay the debts prior to distri-
buting the succession to heirs and legatees now significantly reduces the prac-
tical bearing of these latter examples, their underlying principle –
a division of
patrimony –
remains operative.8 2
What, exactly, is the notion meant to encompass? A useful indication is
found in article 2645, which suggests that a patrimony is considered to be
8See Commentaires, supra note 5 at 5.
1See arts. 780, 1249, 733, 738, 99 C.C.Q.
82The interposing of the liquidator between the de cujus and the heir results in the debts of the
succession normally being totally paid before any legacies and before the balance is distributed to
the heirs (art. 811 C.C.Q.). Nevertheless, where the estate is manifestly solvent the heirs may avoid
the procedure in liquidation, on condition that their own patrimony then become liable for the debts
of the succession (art. 779 C.C.Q.). In such cases the regime of separation of patrimonies retains
its practical utility (art. 780 C.C.Q.).
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
divided whenever some property falling within it is not subject to the ordinary
rules governing the common pledge of creditors. This can happen in numerous
ways. Certain property otherwise transmissible to heirs may be declared exempt
from seizure: here the patrimonial nexus of asset and liability is ruptured,
because the content of the common pledge of creditors differs according to the
nature of the object within the patrimony, and the nature of the creditor’s claim
upon that object.s3 A similar type of division occurs in the family setting where,
once the partition is opened, acquests in a regime of partnership of acquests
under article 448 are treated as a separate mass of corresponding assets and
debts. An attenuated division also occurs in relation to property characterized
as family patrimony under article 414. Here, however, the family patrimony is
merely a mass of assets without correlative specified debt obligations. s’ Still
other transactions which are contractual and which do not have as their principal
object the dividing of a patrimony and which do not operate so as to limit assets
transmissible by succession, do so when it comes to the common pledge: thus,
articles 2221, 2235 and 2246 provide for a deferment of execution against part-
nership property, and article 2274 states an analogous rule for associations. 5
Again, where an enterprise or a substantial fraction of the assets of an enterprise
is sold, regardless of whether the enterprise has juridical personality, the Code
provides that it be treated as a separate universality of assets and liabilities.86
Finally, a number of legal devices permit certain chirographic creditors to profit
from a common pledge greater in scope than that available to satisfy other
claims: for example, the Paulian plaintiff is able to have property or value made
available for execution, while other creditors are not able to execute their judg-
ments against such claims. 7
In all the above cases, the Civil Code of Quebec seems simply to
re-characterize well-known institutions that were notionally exceptions to the
idea of a unitary patrimony under the Civil Code of Lower Canada, as divisions
of patrimony so as to accomodate the juridical operation in view. That is, by tex-
tually affirming the subjectivist notion of patrimony, the legislature is also
required to affirm textually in the Code a generic category to announce its various
exceptions. Yet the legal reality that these exceptions reflect is not identical since
in certain cases the division occurs more as an accounting procedure than as a
specific affectation of property to certain debts and liabilities. Indeed, this pro-
vokes the speculation that in the Civil Code of Quebec, the notion of patrimony
itself is essentially the accounting procedure that the objectivist theory suggests.
83Thus, moveable property of the household may be seized and sold only to recover the unpaid
purchase price, as may instruments of work (art. 2648, paras. 1, 2 C.C.Q.). See also art. 2649.
84Art. 1313, which requires the administrator of the property of another not to mingle personal
and administered assets, is not an example itself of a divided patrimony since the administrator is
not the titulary of the administered property. The power of administration may constitute an ele-
ment of the administrator’s patrimony (giving rise to an asset, if remunerated, and a liability, if the
administration is badly performed), but the property administered itself never enters the adminis-
trator’s patrimony.
850f course, some see these provisions as evidence that the theory of moral personality is defec-
tive. See e.g. Bouchard, supra note 18.
SArts. 1767-78 C.C.Q.
87See art. 1636 C.C.Q.
REVUE DE DROIT DE McGILL
[Vol. 39
18. The most frequent practical application of a notion of divided patrimony
is not even alluded to as such by the Code –
namely the impact of the rules
of prior claims and hypothecs on the affectation of a debtor’s assets to the cre-
ditors’ common pledge. Any security device will generate a preference for a
creditor, but this does not necessarily have a bearing on the composition of the
patrimony as a universality; the preference comes into play only upon the dis-
tribution of the proceeds of a judicial (or analogous) sale. Some security tech-
niques, however, can serve to create separate universalities within that common
pledge. For example, the principle set out in article 2645, paragraph 2, which
now permits limited recourse financing even in the absence of the creditor tak-
ing security, has the effect (like any other separation or division of patrimony)
of creating two distinct asset pools within the debtor’s common pledge.” Again,
while not usually seen as involving the division of a patrimony, the deployment
of financing techniques involving the reservation or recapture of title –
prop-
erty sold under an instalment sale, property being used under a long-term finan-
cial lease, property sold under a right of redemption –
all amount to cases
where some property ostensibly fonning part of a debtor’s patrimony is sub-
jected to a regime of assets and liabilities distinct from that of the other property
of the debtor.89
These various disruptions to the pari passu regime of distribution could be
explained as exceptional, or as marginal to the overall theory of patrimony,
since they will typically involve only a single asset. No such characterization as
exceptional is possible in respect of the hypothec over a universality of move-
able property. While only theoretically possible under the regime of the Civil
Code of Lower Canada,” the Civil Code of Quttbec now explicitly permits (i)
the hypothecation of moveables, (ii) the hypothecation of moveables without
delivery, and (iii) the hypothecation of universalities of moveables, understood
not as a set which must comprise assets later specifically identified but as a true
universality.9 The determination of the scope and contents of the universality is
left to the agreement of the parties. Article 2698 states that they only need spe-
cify the universality with sufficient precision that assets covered by it may be
88Of course, as will be explained below, because the debtor’s other creditors may nevertheless
exercise their rights on the property so specified, article 2645, para. 2 is an imperfect example of
a distinct juridical universality.
89It might be said that this is a “pseudo” division since ownership or another real right in the
thing is never fully vested in the debtor. But this is to take an unduly formalistic view of what con-
stitutes property, for if the entire use-value and fruits of a thing are acquired by the person who
possesses as owner but who has not yet obtained title, then the object does constitute a significant
value in the hands of the debtor. A similar concern about dismemberments led certain classical the-
orists to deny that anything other than corporeal property could constitute assets of the patrimony.
For once the usufruct is dismembered as a separate congeries of rights in the property, it may be
subject to an independent regime of assets and liabilities. This, of course, is why modem concep-
tions of the subjectivist view of the patrimony characterize it as a universality of rights and obli-
gations rather than a universality of things.
9 Exceptional regimes of such universalities existed in respect of the assignment or pledge of
a universality of commercial book debts (art. 1571d C.C.L.C.), the financing of inventory under
the Special Corporate Powers Act, R.S.Q. c. P-16, ss. 27-31, and the Act respecting Bills of Lading,
Receipts and Transfers of Property in Stock, R.S.Q. c. C-53, ss. 11-52.
9’Arts. 2660, 2666, 2697 C.C.Q.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
identified. That is, unlike the case of a legacy by general title, where (at least
on one view) the various possibilities for determining the universality are co-
dally given,92 there are no limitations on the description of the universality to be
hypothecated. The character of the hypothecated property as a juridical univer-
sality is further reinforced by articles 2674 and 2675, which provide for the
transfer of the hypothec by real subrogation into replacement property and into
proceeds of disposition in the ordinary course of business.93
19. The conclusion to be drawn from these different articles is that a patri-
mony, understood as the vehicle by which the common pledge of creditors is
exercised, may sometimes be divided simnply by operation of law, as in exemp-
tions from seizure, Paulian actions, separation of patrimonies in successions,
the family patrimony and the legal matrimonial regime; it may also sometimes
be divided as a collateral effect of an agreement whose primary purpose is to
achieve some other objective, as in partnership or association agreements, fidu-
ciary substitutions and community matrimonial regimes; and a division of pat-
rimony may sometimes arise by explicit act of the parties designed to isolate
assets from the creditors’ common pledge, as in the case of hypothecs over uni-
versalities, limited recourse financing and various title transactions. To group all
these together as examples of a “divided patrimony” is to create a label for a ca-
tegory that, in fact, has no criterion of membership; the notion of divided pat-
rimonies is, consequently, hardly a meaningful legal concept. This examination
of how the multiple division of patrimony by contract or other juridical act has
been facilitated under the Civil Code of Qudbec leads to a consideration of the
second attenuation to the subjectivist theory enumerated by article 2 –
the pat-
rimony by appropriation.
20. The trust is the leading (if not the only) example of the patrimony by
appropriation given by the Civil Code of Quebec. Even though the foundation
also falls within the codal title “Of Certain Patrimonies by Appropriation”,94 in
fact, the universality of property appropriated to it is constituted either through
its attachment to a body having juridical personality, in which case no special
consequence for the theory of patrimony is generated, or by means of a trust,
in which case it is the legal regime of the trust which controls the legal character
of the patrimony so appropriated.9′
Indeed, one even wonders whether, in
grouping the foundation and the trust together, the legislature has not here made
a mistake in categorization. The foundation is a legal institution which has a
patrimony and which may or may not have legal personality. The trust, on the
other hand, is a true patrimony by appropriation –
a juridical universality con-
92Mignault believes that the codal enumeration is exhaustive (P.-B. Mignault, Le droit civil cana-
dien, vol. 4 (Montreal: Thoret, 1906) at 352); others such as Turgeon believe that additional cat-
egories of legacy by general title are possible (H. Turgeon, “Essai sur les legs” (1952) 55 R. du
N. 145 at 167).
93Again, as in the case of limited recourse financing, the affectation of the property to the uni-
versal hypothec does not exclude it from the common pledge of other creditors, and therefore, the
juridical universality is “imperfect”.
94Arts. 1256-59, 1260-98 C.C.Q. See Brierley, supra note 31 at 735-38.
95See art. 1257, para. 1 C.C.Q.
McGILL LAW JOURNAL
[Vol. 39
stituted into a regime for allocating the prerogatives of property –
ridical person.96
and not a ju-
How, then, does the trust bear on the theory of patrimony in the Civil Code
of Qudbec? No longer simply a modality of gifts and wills, the device has
achieved a separate existence as a legal institution: it may be created by onerous
as well as gratuitous act;97 it may be created for public or private purposes; 98 it
may be created for charitable or for business purposes.99 The trust under the
Civil Code of Qubec must be detached from its historical origins as a device
like the substitution, and must be reconceived as a facilitative institution, whose
finalities are no longer substantive and external to it (e.g. the giving of a liber-
ality) but procedural and internal (e.g. the management of property for the ben-
efit of another person or for the achievement of an authorized purpose, by an
independent third person, who acting as an administrator, manages the trust cor-
pus or patrimony as a juridical universality).
21. The essential characteristics of the trust substantially redefine the under-
lying premises of both subjectivist and objectivist conceptions of the patrimony.
While the language of the Code is that of purpose –
thereby suggesting limita-
tion as to form (time) as well as substance –
the trust may be perpetual.”t More-
over, the patrimony can be personalized because the three roles in a trust may be
partly cumulated: both the settlor and the beneficiary may be trustees, and the set-
tlor may also even be the sole beneficiary.” Where the trustee has the control and
exclusive administration of the trust patrimony, and where the titles of which it
is composed are drawn up in his or her name, the trustee acts as the administrator
of the property of another, although the trustee’s powers may be substantially var-
ied in the constituting act.1″2 In addition, because the trust corpus need not be
fixed once and for all, it may be added to, 3 and its assets are to be treated as
a fund, to which the principle of real subrogation applies. 4
To provide that the trust is created by a settlor through the transfer of prop-
erty from his or her own patrimony to another patrimony which is appropriated
96See art. 1260. As noted, the concepts of limited recourse financing and the hypothec on a uni-
versality of moveables also resemble a semi-appropriated patrimony since they serve to affect cer-
tain property to specialized purposes, and to affect certain claims especially to it. However, they
differ from the trust in that these agreements do not exclude other creditors from attaching the des-
ignated property. To achieve the latter result, either incorporation or a trust would be necessary.
97Art. 1262 C.C.Q. It may not, however, be created by judicial declaration except in the specific
case of securing alimentary payments as contemplated by article 591 C.C.Q.
9 Art. 1266 C.C.Q.
99Art. 1269 C.C.Q.
1Art. 1273 C.C.Q.
’01Arts. 1275, 1277-78, 1281 C.C.Q.
12Arts. 1278, 1299 C.C.Q.
l3Art. 1293 C.C.Q.
14Arts. 1293, 1306-1307 C.C.Q. See J.E.C. Brierley, “The New Quebec Law of Trusts: The
Adaptation of Common Law Thought to Civil Law Concepts” in H.P. Glenn, ed., Droit qugbgcois
et droitfran~ais: Communautg, autonomie, concordance (Cowansville, Que.: Yvon Blais, 1993)
382 at 390-92. See also the discussion of real subrogation in this connection in J.E.C. Brierley,
“Bijuralism in Canada” in H.P. Glenn, ed., Contemporary Law; Droit contemporain (Cowansville,
Que.: Yvon Blais, 1993) 22 at 40-41.
19941
RECONCEIVING THE SYMBOLS OF PROPERTY
to the purposes established by the deed of trust, is to provide that from the
moment of such appropriation, any property so transferred is no longer a part
of the patrimony of the settlor.’05 Any beneficial vocation to be derived from the
property of the trust will result from the terms of the trust and not because the
settlor retains ownership of the property appropriated to the trust.’06 Because the
corpus of the trust, even if it is a single thing or a single right, constitutes a pat-
rimony which is “autonomous and distinct” from those of the settlor, trustee and
beneficiary, it follows that the property of the trust is ownerless.” 7 Indeed, the
trust is established and the settlor divested of the property, by the acceptance of
the trustee, whether or not the beneficiary is actually then in existence. 8 As a
distinct patrimony, the trust may be divided under the same terms and condi-
tions as the patrimony of persons. There is, for example, no inherent restriction
on a trustee’s power to hypothecate property, or to agree with trust creditors to
undertake a limited recourse financing arrangement, or even to affect the trust
property to a substitution.”
22. The effort in the Civil Code of Quebec to legislate formally a general the-
ory of the patrimony through a reconciliation of subjectivist and objectivist con-
ceptions would seem, above all else, designed to save appearances.”‘ As noted,
this reconciliation is achieved by postulating as a first principle the subjectivist
view of patrimony: every person has a patrimony, and this general patrimony is
cast as a residue of rights and obligations conceived as a universality, once any
particular appropriations or legally authorized divisions have been accommo-
dated. Then, as a second principle, the Code postulates the objectivist view of
patrimony: in those exceptional cases permitted by law, a person may expressly
divide the patrimony, or appropriate it to a particular purpose, as long as the the-
oretical possibility of the residual subjective patrimony is not compromised.
Through such a stratagem (a stratagem not unlike that which led, in the nine-
teenth century, to the development of limited liability of corporations and the
attribution of legal personality to them), the Civil Code of Quibec seeks to
maintain the subjectivist view of patrimony at the centre of the legal universe,
and to keep up the pretense that this proves the centrality of the human person
to the Civil law.”‘ But the very exercise of reconciliation puts into question the
utility of saving appearances in the first place. What, after all, is the theoretical
and practical utility of the abstract concept of patrimony –
in any of its char-
acterizations?
Some possible answers will now be canvassed. If the idea of the patrimony
is to illustrate that the Civil law recognizes the existence of certain universalities
05Art. 1260 C.C.Q.
1060f course, should the purposes of the trust become frustrated, or should the trust be terminated
for any other reason, in the absence of specific provisions dealing with the winding up of the trust,
the settlor or the settlor’s heirs retain a residual claim upon the assets previously appropriated to
the trust (arts. 1294, 1297, para. 2).
07Art. 1261 C.C.Q.
1’0 Arts. 1264-65 C.C.Q. In certain circumstances, the trust may even be constituted prior to the
trustee’s acceptance (art. 1277).
1’gNevertheless, it is doubtful that a trustee may create a trust upon a trust, given article 1260,
although, by contrast, article 1307 would suggest that trustees do have such powers.
“0See e.g. Commentaires, supra note 5 at 5.
“‘See ibid. at 3.
REVUE DE DROIT DE McGILL
[Vol. 39
understood independently of the particular assets and liabilities that comprise
them at any given moment, then the true root concepts are those of the juridical
universality and real subrogation, not a patrimony attached to a person. That is,
if the idea of the patrimony is to highlight the distinction between juridical and
factual universalities, why not use exactly these expressions? After all, the sig-
nificance of many juridical universalities lies precisely in the ex post facto crys-
tallization of factual universalities at the moment the question of content
becomes relevant: for example, the so-called family patrimony, the partnership
of acquests, the floating hypothec, the hypothec over a universality of move-
ables, and the property of a partnership or an absentee.
If the idea of the patrimony is to explain the traditional notions of universal
successory transmission or the creditors’ common pledge, why are these expres-
sions not sufficient in themselves? Similarly, if the revised idea of the patrimony
is to allow for the possibility that juridical universalities may be divided, or may
be specially appropriated to certain purposes, why not so state, using concepts
such as enterprise, partnership, association, hypothec on a universality, limited
recourse financing, reserved property of the wife, or the trust as the adjectival
theme?” 2 Indeed, given the differences between property forming the common
pledge, property forming the succession of a deceased, and the doctrinal notion
of patrimony itself, one can only be thankful that the latter expression does not
appear in article 2644.
23.
In view of the above alternative formulations of the essential idea, it is
possible to conclude that there is no legally significant consequence which
flows from the use of the word patrimony to describe either that residual uni-
versality of property which attaches to a person, or that special type of patri-
mony appropriated to a purpose. Of course, symbolically, the word carries much
freight within the Civil law tradition. For several generations the term patri-
mony has served as a pedagogical concept for the teaching of basic property
law; regardless of the imprecision of the idea and the specific content that is
attributed to the expression, it is perceived as part of the intellectual structure
of the Civil law. Moreover, the term conjures the notion of a heritage to be
received from one’s ancestors and passed on to one’s descendants.” 3 But given
that universal successory transmissibility does not now apply directly to legal
persons (although corporation legislation continues to provide for amalgama-
tions, fusions and surrender of charters), the symbolism must obviously be
attenuated even under the subjectivist view.
The concept of patrimony also conjures the distinction between patrimo-
nial character and extra-patrimonial character. Yet as has been frequently
observed, the patrimonialization of extra-patrimonial rights is increasing, and
the concept itself provides no specification of the distinction in any event.” 4 In
“12The technique of deploying particular terms to describe the universality in question was that
used in the English language version of the Civil Code of Lower Canada, where property is used
as the generic agglomerating term: property of the deceased is the succession (art. 599); property
of the debtor is the creditors’ common pledge (art. 1980); property of the trust (art. 98 1i); reserved
property of the wife common as to property (former art. 1425a); property of the partnership (art.
1899).
” 3See Sriaux, supra note 42.
14Gray, supra note 26.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
785
all cases, the concept of patrimony has a dual content, depending on whether
successory transmissibility or the creditors’ common pledge is the context in
which it is deployed. The symbol thus adds nothing to the general notion of per-
sons in the law being titularies of property.
Finally, the concept is sometimes used to suggest a purely corporeal crite-
rion for distinguishing between the titularies of different masses of property.
Ordinary patrimonies belong to people (or to the physical); appropriated patri-
monies belong to purposes, or ideas (or more generally to the intellectual). Yet
this distinction simply collapses. Many incorporeal agglomerations are the
reflection of personality. Some corporations are solely-owned. Some trusts are
truly personal (those which have been called, for example, declarations of trust).
Techniques such as limited recourse financing, the hypothecation of universal-
ities-of assets, and title transactions are all functional equivalents that can be
deployed to adjust the scope of the creditors’ common pledge. It follows either
that all patrimonies – divided or appropriated –
are personal (in that the rights
they generate are attributable to legal persons), or that all patrimonies are appro-
priations to purposes (either as mediated by legal personality or directly).
24. Legal concepts are, in the final analysis, rarely just instrumental con-
structs. They are highly charged symbols. So it is with the concept of patrimony.
Yet both instrumentally and symbolically the concept may have outlived its use-
fulness. No longer attached exclusively to the person, it loses much of its liberal
symbolism. No longer a theoretically indivisible concept, it loses its utility in
explaining the creditors’ common pledge. No longer a guide to distinguish the
patrimonial from the extra-patrimonial, since it is now possible to conceive of
certain personality rights as having an economic pendant, it has no raison d’9tre
as an abstraction linking etre and avoh. The Minister’s commentaries specifi-
cally recognize these difficulties with the attempt to define patrimony.”5 Why
then is it appropriate to make explicit reference to a concept which was previ-
ously not specified? Are not some notions of the Civil law best left unexpressed
in the text of the Civil Code? Indeed, might not the codal conceptualization of
a confused notion of patrimony as a central idea of the civil law retard the doc-
trinal development in Quebec of the more embracing, and more analytically
important category –
that of perfect and imperfect juridical universalities giv-
ing rise to perfect and imperfect real subrogation?” 6 These themes will be revis-
ited in the conclusion.
II. Rights, Things and Interests
A. The Invention and Re-Invention of Rights
25. Central to the projection of human personality in the external world is the
idea that juridical persons may invoke the power of the State to enforce civil
claims having economic value. In modem times, the preferred vehicle for arti-
115See Commentaires, supra note 5, discussing article 2 of the Civil Code of Qudbec.
“6To date, the literature on these themes is underdeveloped in Quebec, although it is extensive
in France. See, for a first exploration, R. Demogue, “Essai d’une throrie grnrale de la subrogation
rdelle” (1901) 30 R.C.L.J. 295; most recently, see V. Ranouil, La subrogation rdelle en droit civil
frangais (Paris: Librairie gdn~rale de droit et de jurisprudence, 1985), where the importance of the
distinction between perfect and imperfect real subrogation is fully developed.
McGILL LAW JOURNAL
[Vol. 39
culating the grounds upon which this enforcement may be demanded has been
the concept of a legal right (droit subjecti).”‘ Within the Civil Code, classical
doctrinal expositions categorize patrimonial rights according to their object, and
especially according to whether this object is a thing or the activity of a person:
those rights said to be exercisable directly in relation to corporeal property
(things), whether moveable or immoveable, are termed real rights; those enabling
their titulary to claim performance of an obligation (a prestation) from another are
termed personal rights.’18 While the distinction between a jus in re and a fits in
personam originates in Roman law,”9 just as in the French Code civil, the expres-
sions real right and personal right appear only infrequently in the Civil Code of
Lower Canada. Indeed; the adjective “personal” is invariably deployed to char-
acterize judicial actions rather than as a description of rights themselves.2 Sim-
ilarly, the adjective “real” is most often deployed, at least in English, in connec-
tion with either “real property” and “real estate”” or “real servitudes”‘”
in
both instances suggesting a broader connection with land than with property gen-
erally-” Sometimes the expression refers to the nature of a judicial proceeding
–
but only in article 2016, which describes a hypothec as a
real right, does the Code attempt to use one or the other expression to attribute
specific characteristics to a given legal relationship.”l The Civil Code of Quibec
occasionally uses the term real right, for example, in articles 911, 1119 and 2660,
where a list of such rights is ostensibly provided. The expression personal right,
however, appears only in connection with the elaboration of the registry system,
most notably in articles 2943, 2970 and 2980.
a real action 24 –
–
In France, the distinction between personal and real rights is quite well
articulated in doctrinal commentary, although this is less the case in Quebec.’2 6
T7 For a discussion of the origins and development of the notion of legal rights in the Civil law,
see J. Ghestin & G. Goubeaux, Traitj de droit civil : Introduction g~ndrale, 3d ed. (Paris: Librairie
gdnrale de droit et de jurisprudence, 1990) paras. 163-93.
‘”The theory is trite, although in Quebec, its analytical implications are often not well-
developed. For an insightful discussion see M. Cantin Cumyn, “De l’existence et du rgime juri-
dique des droits r6els de jouissance innomm6s : Essai sur l’6numdration limitative des droits rtels”
(1986) 46 R. du B. 3 [hereinafter “De 1’existence et du rdgime juridique des droits rdels de jouis-
sance innommfs”]; M. Cantin Cumyn, “Essai sur la durfe des droits patrimoniaux” (1988) 48 R.
du B. 3. Compare, however, “Enforcing Rights in Corporeal Moveables: I”, supra note 25, for
doubts about the analytical usefulness of the distinction in determining the remedial consequences
attaching to the exercise of any particular right.
” 9 See e.g. R.W. Lee, The Elements of Roman Law, 4th ed. (London: Sweet & Maxwell, 1956)
120See arts. 739, 877, 880, 2013d, 2190, 2236, 2243, 2246, 2247 C.C.L.C.
12IArts. 379, 382, 389, 571, 1903, 1939 C.C.L.C. In French, the equivalent expressions are,
respectively, “fonds”, “hritage”, “bien-fonds”, “rellement”, “immeubles” and “propriftfs fon-
cieres”.
I22Arts. 414, 499, 546 C.C.L.C.
123This, of course, is the usage revealed in the title of W. de M. Marler, The Law of Real Prop.
at 432.
erty: Quebec (Toronto: Carswell, 1986), and the foreward by P.-B. Mignault.
124See e.g. art. 320 C.C.L.C.
’25Even then, however, the usage was inexact. For discussion, see R.A. Macdonald, “Change of
Terminology? Change of Law?” (1992) 23 R.G.D. 357 at 369-71; and text accompanying notes
188-89.
’26One of the most detailed elaborations appears in G. Baudry-Lacantinerie, Traiti theorique et
pratique de droit civil, t. 5, supp. by J. Bonnecasse (Paris: Sirey, 1930). For a brief summary in
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
Traditionally it has been used to distinguish (i) the remedial structure which a
given right implies –
for example, in derivation from the analogous distinction
of Roman law between real actions and personal actions; and (ii) the opposa-
bility which a given right is thought to command –
for example, whether per-
sons not party to a juridical act by which such rights are created or transferred
will nevertheless be bound to respect them. 27 Other commentators observe that
in contradistinction to personal rights, real rights are, in principle, limited in
number, and that they give their titulary a right of preference. But these are sec-
ondary characteristics not necessarily true of all real rights and certainly not
central to the distinction between the two kinds of patrimonial rights.”
26. The assertion that the distinction between personal rights and real rights is
foundational compels greater specification both of the attributes of each and of
their possible objects. To say that a personal right bears directly upon the activ-
ity of a legal person is, in fact, to affirm that its titulary (a creditor) is empow-
ered to claim the performance of some prestation from another person (a
debtor). Thus, the relationship between creditor and debtor constitutes an obli-
gation, and the liability of the debtor to perform is personal. Obligations are
enforced by a personal action against the debtor (or the debtor’s mortis causa
successors by universal or by general title). Given the principle that all of a deb-
tor’s property is the common pledge of creditors, enforcement may, be executed
by means of the seizure and judicial sale of all the debtor’s property.29
Real rights are said to be constituted directly upon, and only upon, things.
Even though all rights necessarily involve relationships between legal persons,
the titulary of a real right does not normally exercise the right by requiring the
performance of a prestation by another. Ownership is, within this conceptuali-
zation, the paradigmatic real right. It may, however, be fragmented into lesser
rights, *or dismemberments, to the profit of others. These fragmented rights (in
Quebec, traditionally enumerated as usufruct, use, habitation, real servitude,
emphyteusis) are, with the exception of real servitudes, grouped together as real
rights of enjoyment. That is, because their titulary also is said to have a direct
relationship to the thing upon which they bear, they are classified as real rights.
In addition to these rights of enjoyment, some rights in things (the pledge, the
hypothec) are constituted as security for a debt and are termed “accessory real
rights”. While the exact prerogatives attaching to any given real right will vary,
classical theory holds all real rights to be of the same character: they may be set
up against the whole world and are enforceable by “real actions”. 3’
27. Most of the first-order consequences of conceiving patrimonial rights in
such terms are drawn out in doctrinal commentary, although the best indication
of the theory’s basic premises can be gained by examining the narrower set –
relation to Quebec Civil law, see Lafond, supra note 24 at 126-29.
‘ 27Two helpful discussions of the raison d’6tre of the distinction are those of J. Chevalier, Book
Review of Droit riel, proprijte et criance by S. Ginossar (1960) 58 Rev. trim. dr. civ. 600; and
J. Dabin, “Une nouvelle definition du droit r6el” (1962) 60 Rev. trim. dr. civ. 20.
128See Weill & Terr6, supra note 26 at 260-62.
’29Arts. 551-714 C.C.P.
130Notably petitory actions or actions in revendication under arts. 532-40, 712-14 C.C.P.
REVUE DE DROIT DE McGILL
[Vol. 39
real rights.’
If real rights can only bear on individualized corporeal things, then
no real right (for example, ownership) may be asserted in respect of a personal
right (an incorporeal). Traditionally, this idea has been rendered by the observa-
tion that a person may be the owner of a thing, but may only be the titulary of
a claim. Yet it also means that no real right may be claimed in a universality,
conceived as such.’32 Again, no real right can bear on a future thing and, in prin-
ciple, no real right may be claimed on another real right. Finally, the right itself
must be existing and actual. An indeterminate future right or a conditional right
cannot be a real right because, whatever its vocation, it does not directly lie in
a thing. The theory of real rights, and especially the characterization of owner-
ship as a real right, reveals the preoccupation of the Civil law with things, seen
primarily as things in themselves and not as an expression of wealth.’33
28. To a large degree this materialist theory of property succeeded as a doc-
trinal construction because it reflected widely-shared intuitions about the
sources of wealth. The theory presupposed that value resided in corporeal assets
–
especially in their attributes of usus andfiuctus; apart from ownership under
conditions of dismemberment, all real rights of enjoyment implied the physical
detention or control of things.'” The theory also presupposed that obligations
were either a rectification of a wrong (as in a delict), or the counterpart of a ser-
vice rendered (as in most contracts), or a claim in restitution of value appropri-
ated or received (as in quasi-contracts), or a mode of transferring property
rights; obligations in and of themselves were not usually viewed as a species of
property.’35 Today, however, neither of these assumptions still hold, even though
the materialist ideology they reflect remains a dominant idea of the Civil law. 36
Of course, it is not just the underlying assumptions of the materialist view
of property that are problematic. Even at the time of codification, certain insti-
tutions of the Civil law seemed inconsistent with the premises of the theory that
all patrimonial rights were either real rights or personal rights. A century of leg-
islative and jurisprudential development and the progressive refinement of doc-
trinal ideas have also revealed a number of inadequacies of the theory in cap-
turing the complexity of the relationship between rights and things. These
paras. 36-40.
13 1See, for France, F Terr6 & P. Simler, Droit civil: Les biens, 4th ed. (Paris: Dalloz, 1992)
132See above, paras. 8-10.
133For a short comparative essay tracing the implications of these two conceptions of things, see
B. Rudden, “Things as Thing and Things as Wealth” (1994) 14 Oxford J. Leg. Stud. 81.
134While it is theoretically possible for a usufructuary to carve out a separate right of use to the
profit of another, and therefore to be the titulary of a dismemberment of ownership without at the
same time having juridical possession of the object of the usufruct, in practice this is a rare event.
The most frequent cases involve the owner him- or herself granting a right of emphyteusis, or usu-
fruct, or use, and not the sub-dismemberment of a dismembered right.
135Modern usage in French, for example the characterization of savings bonds as “obligations
d’6pargne”, suggests an inchoate understanding of obligaions as property, although it bears notice
that this usage is almost invariably restricted to debt instruments that have a corporeal character.
See the definitions of “obligation” in Private Law Dictionary and Bilingual Lexicon, 2d ed. (Mon-
treal: Yvon Blais, 1991) at 296.
136For an example of the continuing dominance of the classical view, see Lamontagne, supra
note 24 at 1-19.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
789
deficiencies have two general dimensions: some legally recognized patrimonial
entitlements simply do not fit into the categories of either personal or real rights
–
they are tertium or quartium quid; and some codal usages suggest that the
fundamental distinction between real and personal rights is not nearly as clear
as the classical theory suggests.’37
29. The initial scholarly critique of the materialist view came with the recog-
nition that certain “intellectual rights”, be they formally recognized as a’species
of property by legislation (copyright, trademark, patents) 38, or be they simply
jurisprudentially acknowledged within the Civil law (goodwill, the right to a cli-
entele, a professional monopoly or a product quota), 139 do not sit easily within
the traditional framework. These intellectual rights are not personal rights
because there is no identifiable debtor; that is, because an obligation presup-
poses a juridical bond between a specified debtor and a specified creditor, they
cannot be obligations. They are also not real rights because they do not bear on
material things; rather their object is some intellectual (or immaterial) endeav-
our.140 The elaboration of a separate category of intellectual rights (droits intel-
lectuels) by French doctrine was followed in Quebec, where the constitutional
division of powers between the federal and provincial governments amplifies
the apparent uniqueness (and separateness) of certain key components of the
category.’14
Doctrinal writers also soon noticed the theory’s imperfections even in con-
nection with the everyday institutions of the Civil Code. A number of rights uni-
versally opposable have no object external to their titulary. These “personality
rights” (droits de personnalite) –
a person’s name, physical integrity, image,
reputation, etc. –
long relegated to the realm of the extra-patrimonial, have
begun to acquire patrimonial consequences. 4 Once this possibility is admitted,
137An even more serious problem with the classical theory arose because there was some evi-
dence that the right of ownership may actually bear on incorporeals. See Matamajaw Salmon Club
v. Duchaine, [1921] 2 A.C. 426 (P.C.). The correct analysis of this decision is, however, contested
and some commentators argue that the Privy Council was really only recognizing the possibility
that minor real rights could be created by juridical act. For a discussion of the controversy, see S.
Normand, “Une relecture de l’arrt Matamajaw Salmon Club” (1988) 29 C. de D. 807.
138The principal statutes are the federal Patent Act, R.S.C. 1985, c. P-4; the Copyright Act,
R.S.C. 1985, c. C-42 and Quebec’s An Act respecting the Professional Status of Artists in the Visual
Arts, Arts and Crafts and Literature, and Their Contracts with Promoters, R.S.Q. c. S-32.01.
139See generally P. Roubier, “Droits intellectuels ou droits de clientele” (1935) 34 Rev. trim. dr.
civ. 251, for a short history of the emergence and development of the category in French law.
140See the recent summary, in relation to some of the problems, by Y. Gendreau, “Droit d’auteur
et droits de la personnalit6 : Droit frangais, droit qurbrcois et droit canadien” in Glenn, ed., supra
note 104, 291.
141In other words, the federal statutory character of patents, copyrights and trademarks has facil-
itated their doctrinal treatment as a sui generis type of right. Unfortunately, however, this charac-
terization has impeded the development of a more general theory of intellectual rights (as in
France) and relegated analogous Civil law institutions –
clientele, goodwill, market-share quotas
–
to relative obscurity. See e.g. the discussion in Lamontagne, supra note 24 at 45; Lafond, supra
note 24 at 141-42; the decision of the Supreme Court of Canada in Trudel v. Clairol Inc. of Canada,
[1975] 2 S.C.R. 236, 54 D.L.R. (3d) 399.
142For a discussion of the question in France, see P. Kayser, “Les droits de la personnalit6:
Aspects throriques et pratiques” (1971) 69 Rev. trim. dr. civ. 445; for a case in Quebec in which
McGILL LAW JOURNAL
[Vol. 39
classical theory must conceive of them either as real rights – which they cannot
be since they could only be considered as bearing on a thing if the human body
itself were a thing –
or as personal rights – which they cannot be since they
inhere in the human personality and are opposable to everyone. More recently
the scope of cognizable personality rights giving rise to compensation for their
infringement has been expanded by statute.’43 Thus, like intellectual rights, at
least some personality rights are both statutory and codal reflections of property
that cannot easily be reconciled with the classical theory.
30. A greater challenge to the materialist view arises because the Code also
sets out a number of rights that arise within the standard patrimonial institutions
of the Civil law, but that equally clearly do not fit the traditional logic. Some
are in the nature of reinforced personal rights; others are in the nature of defec-
tive real rights.'” Instances of reinforced personal rights have always been
inherent in the Civil law. For example, whenever one person is in custody of a
thing belonging to another, by contract (for example, a borrower, a depositary,
or a mandatary with custody) or as a result of a juridical fact (for example, a
negotiorum gestor), but does not claim a recognized real right in the thing, the
situation has been characterized as that involving a jus ad rem trans personam.
In these cases, it is not overly difficult to maintain the categorization of the right
as a personal right, even though it implies a direct material relationship with a
thing, and even though its titulary is vested with certain actions normally
reserved to holders of real rights. 45
At least two of these reinforced rights, however, resist facile characteriza-
tion as personal rights. The right of the lessee of an immoveable to have “enjoy-
ment” of the thing leased is, in principle, only a personal right against the lessor.
But the lessee under a registered lease may nonetheless set up the lease against
third persons; and in the special case of the residential lease, a number of codal
provisions practically convert the lessee’s status into that of a titulary of a real
right.’46 Similarly, the right of retention vests the retainer with many of the pre-
personality rights were given monetary protection, see Deschamps v. Renault Canada (24 February
1972), Montreal 05-810-140-71 (Sup. Ct.), reproduced in (1977) 18 C. de D. 937.
14 3See, most notably, the rights set out in sections 1-10 of the Charter of Human Rights and
Freedoms (R.S.Q. c. C-12), all of which give rise, under section 49, to an action in damages
(including punitive damages) for their breach. For an insightful discussion of the causes of this
modem elision of the two types of rights, see Catala, supra note 49, paras. 27-29. See also J.
Audier, Les droitspatrimoniaux di caractre personnel (Paris: Librairie gdn~rale de droit et de juris-
prudence, 1979).
1′”The discussion that follows does not consider the question of whether the possibility of
innominate real rights created by juridical act also constitutes an attenuation of the classical theory.
For discussion, see Cantin Cumyn, “De l’existence et du rgime juridique des droits rdels de jou-
issance innommfs”, supra note 118.
145There are several reasons for this: the contract or legal situation typically is gratuitous and
therefore not often the subject of contestation; the detention is temporally precarious in that the
owner may, in principle, demand return of the thing at any time, and the object is invariably a
moveable. For further discussion of the legal regime governing these situations, see R.A. Macdo-
nald, “Enforcing Rights in Corporeal Moveables: Revendication and Its Surrogates – Part Two”
(1986) 32 McGill L.J. 1, paras. 91-104.
146See the discussion in P.-G. Jobin, Le lotage de choses (Montreal: Yvon Blais, 1989) paras.
14-15, 339-46.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
791
rogatives of an accessory real right (including opposability to the whole world),
but it confers only an attenuated right to follow and may be realized only by per-
sonal action. 47 In both cases –
a reinforced personal right of enjoyment and a
reinforced personal right of guarantee –
the essential economic logic of the
institution is protected by a real remedy, and the personal recourse only sanc-.
tions certain formal features of the right.148 As for defective real rights, the Code
provides numerous examples, usually resulting from the fact of their object
being immaterial or consumable. Thus, the usufruct over a claim or other incor-
poreal cannot be a true usufruct since it does not bear upon a thing. Similarly,
the usufruct over a consumable, such as a sum of money, is dematerialized into
value. Doctrinally these are characterized as quasi-usufructs, under which title
to the claim or the money is transferred to the usufructuary subject to an obli-
gation to repay the capital upon the expiration of the usufruct.’49 This solution
is analogous to that adopted in respect of the distinction between the loan for
use and the loan for consumption. In the loan for consumption, the borrower is
not held to have acquired a personal right in relation to the thing (an ordinary
jius ad rem trans personam), as is the case with a loan for use, but rather to have
acquired all of the lender’s right in respect of the thing loaned, subject to an
obligation to render a like thing at the expiration of the loan. The nature of both
these types of hybrid rights –
reinforced personal rights and defective real
rights –
is such that some scholars have even taken to characterizing them as
mixed rights to highlight their bivalent features, and to explain satisfactorily
their actual legal operation.’
The limits of the classical theory are also reached whenever a real right is
only gradually perfected. For example, neither the purchaser under an instal-
ment sale, nor the lessee with an option to purchase, nor the financial lessee, nor
the owner under suspensive condition have a present real right in the thing
which is the object of their rights. Yet the Code permits them to take measures
conservatory of their future rights,’5′ and courts have also permitted future own-
ers in present possession to take petitory actions or to recover compensation for
damage caused to the object of their future rights. Again, the successive attri-
bution of the ownership of property over several generations in the form of the
fiduciary substitution raises doubts about the entitlement of future titularies
prior to the opening of the substitution. At this time the right of the substitute
is not merely personal, because proprietary-like remedies are available to pro-
tect it, but it is not a complete real right of ownership because it has not defin-
itively vested. To account for the particularity of these diverse situations of
147See F. Frenette, “Le droit de r6tention” in Ripertoire de droit: Sfiretds, doe. 5 (Montreal:
Chambre des notaires du Quebec, April 1980). The situation of the unpaid seller in possession who
sets up the exception of non-performance is analogous.
15’For example, art. 1086 C.C.L.C.
148See S. Gaudet, “Le droit
rem” (1989) 19 R.D.U.S. 473.
la reparation en nature en cas de violation d’un droit personnel ad
149See M. Cantin Cumyn, “De l’usufruit” in Ripertoire de droit: Biens, 2d ed. (Montreal:
50For this type of characterization, see F. Znati, “Le droit des biens dans l’euvre du doyen
Savatier” in L’ivohItion contemporaine du droit des biens (Paris: Presses Universitaires de France,
1991) 13 at 18.
Chambre des notaires du Quebec, 1990) paras. 59-61.
REVUE DE DROIT DE McGILL
(Vol. 39
gradual acquisition of real rights, French doctrine has elaborated yet another
category of patrimonial rights –
that comprising future, conditional and even-
tual rights. 5′
31. The above examples demonstrate that the materialist foundations of patri-
moniality, as reflected in the sharp distinction between real and personal rights,
no longer (if they ever did) reflect the living law. First of all, some of the most
important rights of monetary worth simply do not present the features of either
a real right or a personal right: that is, they do not bear on things at all but on
attributes of persons (personality rights) or on ideas and other immaterial con-
cepts (intellectual rights), or even if they seem to bear on things they are neither
claims against persons nor claims in things (rights of pre-emption, rights of
option). Again, some of the most common rights that do bear on things seem
to present characteristics of both real rights and personal rights: that is, they are
either not real rights, but only jus ad rem –
sometimes reinforced with a char-
acter of reality (rights of lessees of immoveables, rights of retention), or they are
degraded real rights because the thing is already dematerialized into its value
(quasi-usufruct, loan for consumption). Finally, some of the central institutions
for the transfer of wealth presuppose the gradual acquisition of the economic
value of the right (or of the thing) prior to its definitive vesting (conditional,
future and eventual rights). Each of these suggests the inadequacy and the
incompleteness of the summa divisio between real rights and personal rights,
although it is acknowledged, none actually presents a radical departure from the
underlying conceptual structure of a legal right itself.153
The most telling reflection of the inadequacies of the classical conception
can be seen in relation to the mechanism of the trust. Even though the notion
of a legacy to fiduciaries was known to the old French law, the characterization
of the tri-partite relationship within the trust resists traditional analysis.” 4
Because of the need to locate an owner for property, courts have tended to the
view that the trustee has a sui generis ownership title.1 5 But because the trust
is not recognized as being a person in the law, to avoid the conclusion that the
beneficiary is also an owner under a sui generis title, courts have held that the
beneficiary is a creditor of the trustee rather than of the trust itself. As a result,
the beneficiary seems at best to be vested with only a personal right as against
the trustee, and the remedies available to vindicate this right are only those
available to ordinary creditors. 156 The fact that other statutes establish quite dif-
152See J.-M. Verdier, Les droits iventuels : Contribution a l’itude de la fornation successive des
1530n this root idea see Dabin, supra note 4 ; P. Roubier, Droits subjectifs et situationsjuridiques
droits (Paris: Rousseau, 1955); Weill & Terrf, supra note 26 at 344-48.
(Paris: Dalloz, 1963).
154 ‘he fiduciary legacy was brought forward into the Civil Code of Lower Canada by articles
869 and 964. Later the insertion of articles 981a-n into the Code in 1888 provided a more complete
canvass of the rights and responsibilities of trustees.
155See Curran v. Davis, [1933] S.C.R. 283; Tucker, supra note 64.
156This, of course, does not really solve the difficulty because the trustee cannot be characterized
as the beneficiary’s debtor in the traditional sense: a creditor of a personal right would not normally
be in a position to demand an accounting of his or her debtor or the latter’s destitution; in addition,
the liability of the trustee to perform the trust exists in relation to the trust property rather than upon
his or her own patrimony.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
793
ferent devices that are also characterized as “trusts”’15 7 creates additional diffi-
culties because neither the Code nor any other legislation sets out a general sup-
pletive law of trusts. Similarly, at least two federal statutes –
the Bank Act ‘
and the Bankruptcy and Insolvency Act 59 –
appear, at least to some courts and
commentators, to rest on notions of legal and equitable title alien to the frame-
work of the Civil law. 6 ‘ In each of the above cases, neither the concept of a real
right nor that of a personal right adequately captures the relationship between
the various parties to a transaction and between these parties and the property
in question.
The trust is, of course, a specialized instance of what may be generally
characterized as the fiduciary relationship: the management of property (con-
ceived as a fund) not belonging to the manager. Although numerous codal insti-
tutions contemplate such administration, the Code provides no general state-
ment of the powers and obligations of such administrators. 6′ In principle,
fiduciaries must conduct their management with the care of a prudent adminis-
trator, may not normally acquire the property in question, and must render an
account at the termination of their administration. Yet the relationships between
the fiduciary and the property under administration, and between the beneficiary
of the administration and the fiduciary, are difficult to describe. Answering the
questions as to who may police the administration, to what extent the property
administered is a fund subject to real subrogation, whether the fiduciary actually
has any rights in the property or merely exercises powers that do not constitute
a species of vested property right,”2 and whether the beneficiary has an inde-
pendent status to exercise proprietary remedies, squarely raises the issue of
whether the regime of personal and real rights is sufficient to analyse the legal
entitlements flowing from fiduciary management relationships.
32. These various difficulties with the materialist (or subjectivist) conception
of property and with the distinction between real and personal rights which it
implies led, in France, to various attempts to re-characterize the types of patri-
monial rights envisaged by the Code. Initially, these attempts were designed to
collapse one category into the other. Thus, just prior to the turn of the century,
some jurists such as Saleilles sought to objectify all rights as real rights. A per-
sonal right is not a right as against a person, but rather as against a thing –
that
157See, for two examples, the Companies Act, R.S.Q. c. C-38; and the former Special Corporate
Powers Act, supra note 90.
’55R.S.C. 1985, c. B-1.
159R.S.C. 1985, c. B-3.
16See R.A. Macdonald, “Security under Section 178 of the Bank Act: A Civil Law Analysis”
(1983) 43 R. du B. 1007.
161A rudimentary regime of investment powers is, however, established by articles 981o-v. For
a detailed list of examples of fiduciary administration, including those cases where the fiduciary
may also have some temporary personal entitlement to benefits arising from the property in ques-
tion, see Brierley & Macdonald, eds., supra note 3, para. 137.
162The notion of powers is not well-developed in Quebec. The most recent treatment of the idea
is that of J.E.C. Brierley, “Powers of Appointment in Quebec Civil Law” (1992) 95 R. du N. 131,
245. This essay, of course, discusses only one type of power –
the power of appointment; more-
over, the power in question may be a fiduciary power or a non-fiduciary power, depending on the
situation.
McGILL LAW JOURNAL
[Vol. 39
person’s patrimony: a personal right is simply an indeterminate real right.’63
This objectivist view, which corresponds to the objectivist view of patrimony
noted above, has the merit of emphasizing that a fundamental characteristic of
a legal right is the economic value that it represents. Yet it was never widely
accepted because, like the objectivist view of patrimony, it seemed to factor the
specificity of the human person out of the notion of a legal right in the Civil
law.164
The opposite approach to collapsing one category into the other was taken
by Planiol, who argued that all rights were essentially personal rights. 6 What
were traditionally called real rights were no more than personal rights affected
with a “universal passive obligation”. The right of ownership, for example, is
conceived as a relationship between the owner (the creditor) and everyone else
in the world (the debtors). For Planiol, to speak of a right as a relationship
between a thing and a person was a non-sens; rights only exist between persons.
This personalist view of legal rights parallels the subjectivist view of patrimony
advanced at the same time, and properly situates all legal rights in the realm of
social relationships. Yet Planiol’s theory rests on a confusion of the notions of
opposability and obligation in the strict sense. Critics observed that while it is
true that real rights are universally opposable, they do not, of themselves, create
identifiable obligations of performance that may be claimed against everyone.
Moreover, even though the specific obligations of a personal right are limited
to the parties to a contract, for example, the contract itself is opposable to every-
one and interference with a contractual relationship constitutes a delict.66
Both of these revisionist conceptions of legal rights ultimately rest on the
detachment of the notion of real rights (especially ownership) from things in
themselves: all rights are, at one and the same time, relationships between people
and relationships between patrimonies (or universalities of value); they are not
either one or the other. The analytical question becomes one of assessing the rel-
ative weight of rights rather than their material object. This is the gravamen of
the more recent, and more telling, critique of the classical theory advanced by
Ginossar.67 For Ginossar, the essence of ownership is the owner’s ability to profit
from the legal object of his or her rights: ownership describes a relationship of
attachment, not the materiality of the attachment. Ownership can be established
in respect of objects or claims.”f What varies as between claims and things is not
the scope of their opposability but the identity of the debtor of the specific obli-
’63R. Saleilles, Etude sur la thgorie ginirale de l’obligation d’aprs le premier projet de Code
civil pour l’Empire allemand (Paris: F. Pichon, 1901).
164Neither Ghestin & Goubeaux (supra note 117) nor Weill & Terrl (supra note 26) even make
reference to Saleilles’ theory. See, however, F. Hage-Chahine, supra note 29 at 712.
165M. Planiol, Traiti glmentaire d droit civil, vol. I (Paris: Librairie gfntrale de droit et de
jurisprudence, 1897) para. 2159.
166For a discussion of these problems with Planiol’s theory, see e.g. Weill & Terrf, sutpra note
26, pam. 250.
167Supra note 29.
16sWhile he did not specifically address the point, presumably Ginossar would hold that person-
ality rights that are given patrimonial recognition can also be owned: either in a corporeal (the body
and body parts), or an incorporeal (one’s image, one’s name, one’s right not to suffer discrimina-
tion).
19941
RECONCEIVING THE SYMBOLS OF PROPERTY
gation they impose. The central distinction is thus between owing and owning,
not between personal rights and real rights. 6 9 Real rights of enjoyment are, in this
understanding, quite different in substance than ownership itself. They are, like
personal rights, simply a species of relative right; what makes an obligation a real
right is only that the obligation which it comprises –
for example, the obligation
of an owner towards a usufructuary –
rests on a specified object. Real rights less
than ownership, personal rights and mixed rights are all species of claims (or rel-
ative rights) that imply a specified debtor and a specified creditor.
The schema advanced by Ginossar produces two major consequences for
the theory of patrimonial rights. In the first place, it is no longer necessary to
multiply categories of sui generis rights in order to account for intellectual
rights and personality rights having a patrimonial reflection; nor is it necessary
to place reinforced personal rights, degraded real rights, and conditional, even-
tual and future rights into one or the other category. Once ownership is sepa-
rated from materiality it is easier to contemplate entitlements in respect of prop-
erty in a fund – whether the property is characterized as corporeal or
incorporeal. Secondly, once one accepts that all rights other than ownership are
rights against persons, the differing weight of rights (for example, of a depos-
itary, pledge, borrower, lessee, user or usufructuary) can be analysed along a
continuum. Thus, what the Civil law has classically described as a patrimonial
right becomes, with the exception of ownership, a legal relationship in respect
of property or value.
33. While the reformulation of the categories of patrimonial rights proposed
by Ginossar seems to overcome many of the difficulties caused by the purported
centrality of the categories of real and personal rights and opens the way to a
Civil law characterization of the trust relationship, it has failed to attract wide-
spread adherence. 7′ Moreover, many jurists explicitly reject it for what appear
to be ideological reasons.17
1 It is argued, for example, that the immaterialist the-
ory advanced by Ginossar, like the personalist theory proposed by Planiol,
reduces the notion of ownership to the simple questions of transmissibility and
opposability regardless of the object of the right. Surely, things as things
deserve a more prominent place in the theory of property rights: an object, say
a work of art, a house, a wedding ring or an heirloom, is more than just a value
it has meaning in and of itself. The specificity of ownership lies precisely in
–
the object, not the relationship. Secondly, the immaterialist theory, like that pro-
posed by Saleilles, relativizes all rights other than ownership to simple incorpo-
real claims in another’s property –
to relationships between patrimonies, or
between juridical universalities. Surely, it is argued (in complete disregard of
modem institutions such as instalment sales and finance leases), effective
169For a contemporary expression of this same theme, although cast in much different language,
see F. Frenette, “Du droit de propri~t6: Certaines de ses dimensions m~connues” (1979) 20 C. de
D. 439.
170See the discussion in Ghestin & Goubeaux, supra note 117, where the theory is presented
summarily, discussed, not rejected, but simply passed over. See also Hage-Chahine, supra note 29
at 712-13. In Quebec, Ginossar’s theory has not even been doctrinally evaluated.
171The classical statement is that of Dabin, supra note 127. Compare the response of Ginossar,
“Pour une meilleure definition du droit r6el et du droit personnel” (1962) 60 Rev,. trim. dr. civ. 573.
REVUE DE DROIT DE McGILL
[Vol. 39
appropriation of the “use-value” of a thing requires founding the beneficiary’s
rights directly in the thing. Finally, as far as the objection to Ginossar’s concep-
tions of property goes, this schema undermines the moral component of an obli-
gation by opening the door to legal recognition of entitlements that are not
rights. Once it is possible to create entitlements in relation to property –
the
enforcement of which is vested in a third person against whom an entirely dif-
ferent claim may be exercised –
the fundamental nexus of debtor and creditor
which founds the law of obligations is destroyed.
B. Saving Appearances under the Civil Code of Quebec
34. These various considerations –
the practical defects of the regime of real
and personal rights and the ideological reservations about any alternative con-
ception of property entitlements – were reflected in the proposal of the Civil
Code Revision Office to reconceptualize basic notions of patrimonial rights.’
A cursory reading of the Civil Code of Quibec suggests that the legislature of
Quebec has also attempted, in its own way, to accommodate at least some of the
deficiencies of the traditional view. This objective is pursued primarily by
reconceptualizing the nature of a real right, especially the right of ownership.’
Indeed, the definition of ownership in article 947 seems to collapse the distinc-
tion between property (les biens) and things (les choses):
947. Ownership is the right to
use, enjoy and dispose of prop-
erty fully and freely … [empha-
sis added].
947. La propri~t6 est le droit
d’user, de jouir et de disposer
librement et compl~tement d’un
bien … [emphasis added].
This article seems to provide textually for the possibility, argued by Ginossar,
that incorporeals (claims) are a species of property that may be owned. Other
articles of the Code also reflect this elision between property and thing. 74
By contrast, articles 953 and 921, among others, seem to continue to con-
template a corporeal conception of ownership:
953. The owner of property has
a right to revendicate it against
the possessor or the person
detaining it without right …
[emphasis added],
953. Le propridtaire d’un bien a
le droit de le revendiquer contre
le possesseur ou celui qui le
detient sans droit … [emphasis
added].
’72See, notably, Draft Civil Code, supra note 10, proposed arts. IV-1, IV-2, IV-20. For a discus-
sion of the Draft Civil Code see F. Frenette, “Commentaires sur le rapport de I’O.R.C.C. sur les
biens” (1976) 17 C. de D. 991.
173Of course, other difficulties such as those flowing from the patrimonial character of certain
personality rights and the conceptualization of intellectual rights, are not resolved in the new Code.
Article 3 purports to announce a category of personality rights without specifying either its patri-
monial content or its nature; and the Code is simply silent on whether there exists a category of
intellectual rights –
either arising through federal legislation or within the Civil law. An oblique
reference is, however, contained in articles 458 and 909, para. 2. For a discussion of intellectual
rights under the new Code, see generally, Y. Gendreau, “La nature du droit d’auteur selon le nou-
veau Code civil” (1993) 27 R.J.T. 85.
174See e.g. arts. 954, 1127, 1784 C.C.Q. Some commentators argue that this elision is salutary
because it clears up an unnecessary confusion of the former law. See Lamontagne, supra note 24
at 2.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
797
921. Possession is the exercise
in fact, by a person himself or by
another person having detention
of the property, of a real right …
[emphasis added].
921. La possession est l’exer-
cice de fait, par soi-m~me ou par
l’intermndiaire d’une autre per-
sonne qui dftient le bien, d’un
droit r6el … [emphasis added].
This alternative conception of the object of the right of ownership seems to be
repeated in several places, most notably in articles 905, 911, 913, 914 and 2698.
It is, however, not only in respect of the possible object of ownership that
the theory of the Civil Code of Quibec is unclear. The Code reveals a fundamen-
tal ambiguity in respect of the juridical nature of the right of ownership itself.
Article 911 is drafted so that ownership appears to be a species of real right.1 75
Yet article 947 does not textually announce such a characterization. This
absence of specification contrasts with article 1119, which provides that various
dismemberments of ownership are real rights, and article 2660, which provides
that the hypothec is also a real right. Hence, it must be concluded either that
ownership is a real right –
in which case the dis-
tinction between real rights and personal rights in the Civil Code of Quebec ulti-
mately collapses, or that ownership is a separate species of patrimonial right that
may bear indifferently on things and claims – Ginossar’s view –
in which
case the substance of proprietary remedies, the rules relating to acquisitive pre-
scription, and the structure of the publicity regime all need to be recast.
the more likely hypothesis –
35. To understand the reason for these alternative conclusions it is helpful to
identify which of the central tenets of the classical theory seem to have passed
into the new Code. First, the Code does, nominally, retain the expressions real
right and personal right, and it does purport to enumerate codal real rights in
articles 1119 and 2660. Second, it does define a personal right as an obligation.
Article 1373-characterizes an obligation as the right to demand a prestation, and
article 2938 provides for a register of personal rights. Third, the Code contem-
plates real rights of enjoyment as independent rights in property whose enforce-
ment does not depend on the exercise of a claim against another person. This
is, for example, the case of the right of a usufructuary under articles 1142 and
1178. In other words, apart from the fundamental ambiguity arising out of ar-
ticle 947, an ambiguity replicated in article 1127 concerning usufruct and quasi-
usufruct, and article 2660 on the nature of the hypothec, the rest of the Civil
Code of Quebec appears to restate traditional notions of personal and real rights
at least in respect of institutions other than the trust under article 1260 et
–
seq. 176
The above observations suggest that, presumably to account for a number
of rights to which it sought to give a character of reality, the legislature has spe-
cified a definition of ownership and real rights which collapses the various dis-
pourtant bien reel” (1990) 21 R.G.D. 739.
175Compare the observations of J. Goulet, “La propri~t6: La perception au figur6 d’un droit
1761t is, however, worth noting that several traditional codal institutions typically directed to
things, are now codified in the language of property. See e.g. arts. 870, 877 C.C.Q. (return of gifts
and legacies), art. 1465 C.C.Q. (act of a thing –
in French, bien); art. 1592 C.C.Q. (right of reten-
tion); and art. 1799 C.C.Q. (giving in payment).
McGILL LAW JOURNAL
[Vol. 39
tinctions it is at pains to draw (or maintain) elsewhere in the Code. The Minis-
ter’s commentaries in this respect are most revealing. They provide that the term
property (bien), not thing (chose), is used throughout the Code in order to high-
light the idea that property comprises things seen from the perspective of the
law, whether they are appropriated or susceptible of appropriation.’77 But this
merely transposes the difficulty from the realm of rights to the realm of property
generally. 7′ Indeed, the absence of any allusion to Ginossar, and the statement
in the Minister’s commentaries that it is not necessary to define property since
everyone knows what it is, lends weight to the conclusion that the elision of the
concepts property (bien) and thing (chose) was not carefully considered.’79
36. There are numerous examples within the Code where the attempted defi-
nitional restructuring implicit in articles 912 and 947 either does not resolve dif-
ficulties with the classical theory, or cannot be sustained. Three of these are suf-
ficiently illustrative of the general problem: mixed rights; the hypothec; and the
legal relationships established within the trust. Most obviously, as under the
Civil Code of Lower Canada, a number of personal rights elaborated by the
Civil Code of Quebec reveal certain features more characteristic of classical real
rights. In Ginossar’s scheme, given the specificity of the right of ownership, and
given that real rights, personal rights and mixed rights are all variations on “rel-
ative rights” in another’s property, there is no need to suppress this third (or
fourth) category. Surprisingly, however, the new Code offers no new character-
ization of these mixed rights, even though the category does not square at all
well with its definition of ownership. Claims for services as against persons are
the paradigmatic personal (or relative) rights in that they cannot be set up
against third persons. 8′ Yet these droits de criance seem to be capable of being
that is, they give rise to a “real right” in their titulary.”8′ Despite the
owned –
fact that ordinary personal rights seem to be real rights, those personal rights of
the jus ad rem trans personam variety continue to be labelled doctrinally as
“mixed rights”, which are “matinf[s] de rdalit6″J.82
Among rights habitually identified as “mixed” are the right of retention
under articles 1592 and 1593, the priority for municipal taxes under article
2651,83 the lessee’s rights to maintenance in the premises, ‘” the right to oppose
employment contracts in contracts of the sale of an enterprise,’
the rights of
177See Commentaires, supra note 5 at 526, 527.
178See Frenette, supra note 172 at 997, for a discussion of the implications of choosing one or
the other answer.
179The different motivations that might have been present in the legislature’s mind when the
regime of ownership was being elaborated are discussed below, para. 41.
180Unless, of course, the Code specifically provides for their publication. See arts. 1397, 2938,
2941, 2970, 1887, 1936 C.C.Q.
du N. 306.
para. 79.
‘1 1Art. 1784 C.C.Q.
182The expression is from Zdnati, supra note 150 at 18. For a commentary to this effect on the
Civil Code of Qubec, see Lamontagne, supra note 24 at 43-44.
183See L. Payette, “Des prioritrs et des hypoth~ques” in La r~forme dit Code civil, vol. 3, supra
note 18, 9.
184See D.-C. Lamontagne, “L’opposabilit6 des droits du locataire et du locateur” (1991) 93 R.
‘t 5 M.-F. Bich, “Le contrat de travail” in La riforme d Code civil, vol. 2, supra note 18, 741,
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
799
substitutes prior to the opening of a substitution, and the rights of those claiming
an eventual or conditional real right under, for example, an instalment sale or
a lease with an option to purchase. As under the Civil Code of Lower Canada,
the right of retention and the lessee’s rights are most revealing of the problem.
Independently of the prior claim which attaches to it under article 2651, the
right of retention has two complementary features: it may be set up against any-
one, except a hypothecary creditor who demands surrender of a moveable under
article 2770, and it gives a right to follow in the case of involuntary disposses-
sion. Article 1592 provides that the detention may be of property, and not just
of a thing as under the Civil Code of Lower Canada, with the consequence, once
again, that a personal right can generate a real right. Similarly, the lessee’s en-
titlement to use property appears to remain, under article 1851, a personal right;
the lessee may, according to articles 912, 921, 1858 and 1863, therefore compel
the lessor to protect his or her rights. But article 1887 provides that a registered
lease may be set up against a subsequent acquirer, and therefore the lease has
a character of reality independent of the fact that the personal right itself may
be owned. Is the lessee’s claim a mixed right by virtue of article 1887, or is it
a real right by virtue of the fact that it is also a personal right (a claim) against
the lessor?
These two examples suggest that even though personal rights may be
owned, traditional distinctions between ordinary personal rights, jus ad rem
trans personam and real rights continue to exist in a number of codal purposes.
Far from accomodating the challenge to the classical theory posed by the differ-
reinforced personal rights, defective real rights –
ent kinds of mixed rights –
the reformulation of ownership in article 947 compounds the theoretical prob-
lem. In short, the procedural operation of the regime of “mixed” rights is not
congruent with its substantive content.
37. One of the most interesting of the new constructions in the Civil Code of
Quebec is the hypothec. At one level, the Code seems to respond to the logic
of most modem regimes of secured financing: it provides for a consolidation of
creditors’ recourses, and it reformulates all conventional security devices as var-
the hypothec. 86 But these modem regimes else-
iations on a single theme –
where also provide that the deployment of title to property as a security device
by means of, for example, instalment sales, long-term leases, consignments,
–
is subject to the same rules or regulatory system
assignments of receivables –
as ordinary security devices. This result is achieved by means of a general
deeming clause which seeks to determine what the substance of the transaction
amounts to, regardless of what the parties might subjectively have said they
intended. The Civil Code of Quebec, by contrast, attempts to generate coherence
in the regime of security on property not by specifying a uniform set of formal-
ities for, and the consequences of, constituting a security right, but rather by
imposing uniformity in the legal nature of the hypothec. 117 Thus, article 2660
186See R.A. Macdonald, “The Counter-Reformation of Secured Transactions Law in Quebec”
(1991) 19 Can. Bus. L.J. 239 at 279ff.
187Contrary to the recommendations of the Civil Code Revision Office, the Canadian Bankers
Association, the Bar, and several other groups, however, the Civil Code of Qubec contains no such
REVUE DE DROIT DE McGILL
[Vol. 39
characterizes the hypothec as a real right, presumably in order to account for the
right to follow and the right of preference accorded to it.
This characterization of the hypothec as a real right was carried forward
from article 2016 C.C.L.C. I5 s and was likely adopted because of the belief that
the essence of security on property can only be expressed by the notion of an
“accessory real right”. Unfortunately, however, this characterization has always
been inexact, and in the Civil Code of Quibec it is radically deficient. By con-
trast with the Civil Code of Lower Canada, the new Code explicitly permits a
hypothec to be taken over future property, indeterminate property, property not
yet in existence, universalities of corporeal property, book debts, computer
entries, intellectual property and intangibles such as goodwill. To take specific
examples, article 2710 renders it possible to hypothecate a claim, and article
2666 provides that universalities may be hypothecated as such. According to the
classical theory, it is impossible to claim a present right of ownership or even
a real right in any of the above property.8 9
Surprisingly, it appears that the legislature has chosen to abandon the basic
conceptual classifications of the law of property in order to achieve a false sym-
metry in the characterization of all hypothecs. But this is at best a Faustian bar-
gain, for at the point of opposability and enforcement, this false symmetry
shows its limitations. Two examples reveal the difficulty. Unlike the case where
a hypothec charges corporeal property which can be seized and sold, a hypothec
on a claim necessarily presupposes the presence of a third party –
the account
debtor. Moreover, the real value of the security in the creditor’s eyes is not the
realization value of the incorporeal should it be brought to a judicial sale or
enforced through one of the four hypothecary recourses under article 2748 et
seq.; it is the value of the unpaid account debt. The Code recognizes as much
by providing, in article 2743, that from the moment of hypothecation, the cred-
itor may enforce the hypothec and collect the revenues produced by the hypo-
thecated claims, even if the amount collected exceeds the amount then due
under the obligation secured by the hypothec”9
A similar intellectual confusion results from the characterization of a
hypothec on a universality of moveable property as giving rise to a real right.
In the case of immoveables, article 2694 requires that charged property falling
within the universality be specifically identified, and article 2949 requires that
the hypothec be registered against each individually. Here the traditional logic
of real rights is maintained. But under article 2698, hypothecs on universali-
ties of moveables need only describe the universality. Whether or not any parti-
deeming provision – be it by means of a “presumption of hypothec”, an “intention of the parties”
rule or a “substance of the transaction” rule. See generally Macdonald, supra note 16.
for the view that hypothecs always create a real right in the property charged.
ISSSee P.-B. Mignault, Le droit civil canadien, vol. 9 (Montreal: Wilson & Lafleur, 1916) at 9,
’89This suggests either that a real right may lie in a personal right, or that an ordinary claim is
a real right, or that the panoply of rights the hypothec gives to a creditor cannot logically be under-
stood as comprising a traditional real right. See Macdonald, supra note 125.
19See R.A. Macdonald & A. Stuhec, The Law of Security on Property (McGill University
course notes, 1994) Topic 6 [unpublished].
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
801
cular asset is charged cannot be determined until the moment of enforcement,
a logic of rights at odds with the conception of a real right in an identifiable
thing.
There was, of course, no inescapable reason for the legislature to have
specified that the hypothec constitutes a real right. Since the primary conse-
quences that would flow from characterizing a hypothec as a real right –
access
to a special set of enforcement recourses, opposability under specified condi-
are each elaborated in
tions, a unique conception of the right of preference –
detail (with their necessary qualifications and attenuations to account for the
diversity of property that may be hypothecated) in the hypothecary regime
itself, the characterization is superfluous.’ Nevertheless, it can be inferred that
the legislature’s commitment to achieving a consolidation of security devices by
means of definitional specification is one of the major reasons why the defmi-
tion of ownership embraces both things and claims.
38. The two previous examples of attempts in the Civil Code of Quebec to re-
concile materialist (property as thing) and immaterialist (property as value) con-
ceptions of property are, fundamentally, extensions of known problems with the
theory of real rights. The various instances of the hybrids between personal and
real rights can be re-characterized as a new species of mixed right without the
need to define them as either personal or real rights. The hypothec can be
extended, as an integrated concept of security device, to claims and universal-
ities of property without the need to define it as a real right. In each case it is
only necessary to specify the extent of the enforceability of the right, its oppos-
ability, and the recourses to which it gives rise – be these mixed security rights,
mixed jus ad rem, mixed personal services rights, or conditional, eventual and
future rights. In other words, the language of rights can still be deployed
(although with some adjustment) to encompass the full range of interpersonal
relationships that these patrimonial institutions presuppose.
39. Such a strategy is not, however, possible in relation to the tri-partite rela-
tionships comprising the trust. 192 However much one attempts to specify the
jural relationships present in a trust, the exercise presupposes concepts other
than classical legal rights. The trust is created by a settlor through the transfer
of property from his or her own patrimony to another patrimony which is appro-
priated to the purposes established by the trust instrument.’ 93 It follows that any
property so transferred is, from the moment of such appropriation, no longer
part of the patrimony of the settlor. The corpus of the trust constitutes a patri-
mony which is “autonomous and distinct” from that of the settlor, trustee and
beneficiary.’94
191Some have argued that all legal definitions are of this nature. See e.g. A. Ross, “Tfi-tfi” (1957)
70 Harv. L. Rev. 812. For present purposes, the argument is simply that patently false definitional
specification should be avoided, especially when the legal regime being enacted is so different
from any other that its detail has to be elaborated in any event.
192See the two texts by Brierley, supra note 104; Brierley, supra note 31. See also R.A. Mac-
donald, “The Trust and Family Breakdown” in Colloque sur les finances de lafamille lors d’un
divorce (Montreal: Institut VWilson & Lafleur, 1994).
,
193Art. 1260.
’94Art. 1261.
McGILL LAW JOURNAL
[Vol. 39
The most telling definitional specification of the nature of the trust is con-
tained in the last clause of article 1261: neither the settlor, trustee nor benefi-
ciary has any real right in this patrimony. If the institution implies no real rights,
can the various trust relationships be characterized as involving personal rights?
Traditionally, a personal right could only exist with respect to a person, which
the trust manifestly is not: the implication of articles 2, paragraph 2 and 1257,
paragraph 2 is that the trust does not have legal personality.’ A fortiori, given
article 3, the relationship in question cannot be a personality right, nor can it be
an intellectual right. It follows that, whatever may be the relationship between
the beneficiary and the trust property, or between the settlor and the trust prop-
erty, it is not a patrimonial right heretofore known to the Civil law.’96 On the
other hand, the entitlement of the revenue and capital beneficiaries is clearly a
species of property under articles 910 and 1254.
In order to assess the legal nature of these beneficial entitlements and the
character of the trustee’s relationship to the trust property, it is helpful to review
the other basic elements of the trust relationship as set out in article 1260 et seq.
First, because a trust is normally established upon the acceptance of the trustee
(except where the court names a trustee under article 1277), and because articles
1264 and 1265 provide that this acceptance is sufficient to divest the settlor of
ownership and to establish the right of the beneficiary, it follows that it is not
necessary that the beneficiary of the trust actually be in existence for the trust
to be constituted. 97 Second, according to article 1278, the administration of the
trust property is exclusively vested in the trustee, and titles are in the trustee’s
name. Third, article 1282 contemplates that the trustee or the settlor may exer-
cise a power of appointment even where only a class of persons is identified in
the trust deed. Fourth, the trust cannot be dismissed as a temporary (even if
lengthy) limitation of the residual rights of the settlor, who would thus retain a
residual ownership emolument, since article 1273 provides that at least certain
types of trusts may be perpetual.’98 Fifth, the various roles in a trust may be
cumulated. Article 1275 provides that either the settlor or the beneficiary may
be a co-trustee as long as there is one trustee who is neither settlor nor benefi-
ciary. In addition, article 1281 contemplates that the settlor may be a beneficiary
–
even a sole beneficiary. It follows that while the trust arrangement envisions
that there are three distinct roles, the Code expressly provides that there need
only be two persons involved: the settlor cum sole beneficiary (and even
co-trustee) and an independent trustee.
195Some commentators argue that the trust has legal personality (is a sujet de droit). While this
approach has no explicit textual support, it does permit the various relationships between trustee,
settlor and beneficiary to be cast in the language of powers of administration and entitlements
familiar to corporate law. See the articles by Cantin Cumyn, supra note 31.
196The Code does, however, use the word “right” to describe these relationships. See e.g. arts.
1272, 1279, 1281, 1284, 1285, 1286, 1289, 1296; but compare art. 1297 where the Code uses the
expression “entitlement”.
197Subject to the qualification that where the trust is constituted by gratuitous act, the beneficiary
must be in existence when his or her right opens (art. 1297).
19SSubject, however, to certain cases where the trust lapses or is terminated under article 1297,
para. 2.
19941
RECONCEIVING THE SYMBOLS OF PROPERTY
40. Given these foundations, it is apparent that the defining feature of the trust
is not the character of the juridical act by which it is constituted, but rather is
the three roles that it envisions –
settlor, beneficiary and trustee. That is, the
trust is, above all else, a status relationship constituted in order to pursue the
purposes as set out in the trust instrument, in a manner which separates the en-
titlement to the benefits produced by the trust property (conceived as a fund)
from the entitlement and duty to administer that property. Subject to a laconic
codal regulation of its underlying structural features, the trust can largely be
crafted to suit the purposes of the settlor and the beneficiary. For example,
although article 1278 provides that the powers of the trustee are, in principle,
those of the administrator of the property of another with full administration,
article 1299 permits these powers to be varied in the trust instrument. It is pos-
sible, therefore, to relieve the trustee of a number of the obligations which are
imposed under articles 1308 to 1370.’ The entitlement of the settlor (as settlor)
is, according to article 1297, paragraph 2, simply to receive the residual benefit
of the trust upon its termination should no other provision have been made, and
according to articles 1291 and 1292, to police the carrying out of the trust pur-
poses. The entitlement of the beneficiaries is, according to articles 1290 to 1292,
to police the administration of the trust and according to articles 1280 to 1284,
to receive what is due according to the law or the trust instrument.
To conclude, the trust is designed as a facilitative institution with very few
imperative rules. Those that are imperative speak primarily to the means of its
establishment, policing and termination, and not to the substance of the rights
which may be allocated among the settlor, beneficiary and trustee. However
restrictive the general attitude of the Civil law to the prerogatives that may
attach to property as thing –
an attitude reflected in notions that there are a
numerus clausus of real rights, and that the essential attributes of real rights can-
not easily be modified by agreement –
this approach is not carried forward into
the trust. If anything, the creativity one associates with the content of private
contracts seems to be reflected in the regulation of the trust. One might even
suggest that the trust permits persons to create a parallel regime of property en-
titlements that operates more or less independently of the scheme of personal
rights and real rights elaborated by the rest of the Civil Code of Qubec. The
trust, in effect, doubles the number of property relationships known to the Civil
law, and it does so without reference to whether ownership may be asserted over
things (choses) or over property (biens) generally.
41. Like the effort to legislate formally a general theory of patrimony, the
attempt to recast the distinction between real rights and personal rights also
seems designed to save appearances.2 Even though article 947 provides that
ownership is a right that attaches to property – both things and incorporeals –
-article 911 suggests that ownership is not a unique type of right, but remains,
199Some rules are, however, of public order. An example is that set out in article 1332, requiring
administrators of the property of another to act by majority. Thus, while a settlor may be named
a co-trustee, the trust instrument cannot provide that in case of disagreement between the settlor
and another co-trustee or co-trustees, the settlor’s view prevails.
2See e.g. Commentaires, supra note 5 at 525-28, 534-35.
REVUE DE DROIT DE McGILL
[Vol. 39
as in classical theory, a species of real right. What is more, other articles of the
Code maintain the traditional distinctions between real rights and personal
rights: rules of possession, acquisitive prescription, publicity of rights and so on.
Through such a strategem (a strategem not unlike that which led under the
former law to the characterization of the trustee’s rights as a sui generis own-
ership title) the Civil Code of Quebec seeks to maintain the concept of owner-
ship as the central property notion of the Civil law. But the very exercise puts
into question the usefulness of saving the appearances in the first place. Given
the possibility of creating an ownerless trust, what is the theoretical and prac-
tical utility of expanding the concept of ownership so as to comprise incorporeal
property?
The Minister’s commentaries suggest a possible answer. It may have been
that the legislature sought to recognize the increasing importance both of incor-
poreal property and the notion of funds (juridical universalities less than the
classical patrimony) in modem society. For example, by defining ownership as
a right bearing on property, it is possible to argue not only that claims may be
owned, but also that intellectual rights,2″‘ and more radically, that personality
rights having a patrimonial character, may also be owned. This, of course, is
consistent with the approach taken by Ginossar, and developed more recently by
Hage-Chahine.2 2 But if the purpose is to promote a unified conception of own-
ership, then one cannot at the same time characterize ownership as a real right.
As noted, the absence of any reference to Ginossar in the Minister’s commen-
taries, and the deployment of traditional vocabulary to describe the secondary
effects of ownership suggest that the elision was not the result of a conscious
effort to redefine basic concepts of property, but rather merely a linguistic
device undertaken to preserve the coherence of traditional property concepts
elsewhere in the Code.
If such a recasting of ownership were undertaken primarily for aesthetic
purposes, the principal culprit would seem to be the new concept of hypothec.
The logic of the new definition proceeds as follows. A hypothec is defined as
a real right by article 2660. According to articles 2665 and 2666, a hypothec
may charge both corporeal property and claims, and may charge individual
property or all the property in a universality. Since, according to classical the-
ory, a real right may not be claimed in either of these types of property, the
hypothec that charges them cannot be a real right unless the classical theory is
modified. Since an accessory real right is thought, like a real servitude, not to
be a real right of enjoyment, but a charge on a thing reducing the economic
value of the owner’s entitlement, the property subject to a hypothec must be
capable of being owned, and the hypothec can only be granted by a person hav-
ing the capacity to alienate the property.23 Consequently, since claims can be
hypothecated, claims must be susceptible of ownership.2 4 But to deduce the
2 01See Gendreau, supra note 173 at 102-108.
2 2See Ginossar, supra note 29; Hage-Chahine, supra note 29.
2 03See art. 2681. Surprisingly, however, article 2670 provides that a hypothec may only charge
2 04A similar conclusion about the logic of a unified regime of hypothecs driving the reformu-
property when the grantor acquires the “right” hypothecated.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
805
character of ownership in this way is to get the logic of a civil code exactly
backwards. The specific application of a particular concept should not deter-
mine the definition of the concept when to do so would compromise the essen-
tial purposes for which the concept exists.
42.
In view of the above observations, ought it to be concluded that no legally
significant consequences flow from the redefinition of ownership in the new
Code? To put the matter slightly differently, would there be any loss were courts
and commentators to conclude that the use of the term property rather than thing
in article 947, and owner rather than titulaiy in article 1784, for example, are
simply mistaken? To answer these questions, it is necessary to recur to the sym-
bolism of property. Despite a doctrinal tradition that conflates the notion with
things and situates ownership as simply the most important species of real right,
the concept has a psycho-social importance that transcends its legal character-
ization. While the new Code seems in part to recognize this symbolism by
extending the concept to incorporeal as well as corporeal property, in at least
two respects the Civil Code of Quebec undermines its own achievement. Per-
haps less importantly, it does not carry the logic of recognition to a dissociation
between ownership and real rights: once scholars begin to develop the conse-
quences of ownership of claims, the intellectual association of ownership with
other real rights will be attenuated. The real failing of the Code, however, lies
in the imperfect extension of the concept to the most fundamental codal inno-
vation, the trust: it may well be correct to proclaim that neither the settlor, ben-
eficiary nor trustee has a real right in the trust property, but this does not account
for the status of the trust patrimony during the period the trust is operative.
To resolve the definitional conundrum, one of two approaches may be
taken. One may attempt to reassert, within the traditional framework of the law
of property, all the diverse types of patrimonial rights. But since the turn of the
century, no particular scheme of legal rights (droits subjectifs) has successfully
accommodated the diversity of property entitlements. Indeed, as G6ny recog-
nized, the project may be a practical impossibility.”5 Alternatively, one can, like
Ginossar, recognize the centrality of ownership as a symbol, dissociating it from
all other types of patrimonial entitlement, and at the same time acknowledge the
diversity of its objects. Such a strategy has the advantage of better accomodat-
ing both the concept of the hypothec and the new set of roles flowing from the
trust. The hypothec becomes the accessory pendant of ownership: fundamental
in its symbolism and diverse in its objects. The entitlements of the beneficiary
of a trust become another species of ownership in the same manner that the en-
titlement of the creditor of an obligation is a new species of ownership. This
approach permits the doctrinal development of a new generic category of prop-
erty relationship –
and this category, by changing the
organizing vocabulary of the law, better accomodates the now recognized
extreme diversity of patrimonial entitlements otherwise sitting awkwardly in the
classical framework. Refusing to define these new entitlements, but leaving
that of an “interest” –
lation of basic property concepts can be reached in connection with the hypothec over a univer-
sality of moveable property.
205Supra note 23.
McGILL LAW JOURNAL
[Vol. 39
them to doctrinal development, might well lead to greater attention being
devoted to the more embracing, and in the modem world, more analytically
important, investigation –
that of the weight of patrimonial entitlements and
their connection to the intensity of interpersonal relationships.2″
Conclusion: Reconciling the Word and the Deed
43. This review of the fate under the Civil Code of Quibec of two of the cen-
tral symbols of property in the Civil law tradition puts into relief a number of
perils of codal reform. But despite its apparent focus on doctrinal or substantive
questions, the object of this exercise has not been to add yet another voice to
the chorus of those who would ask the National Assembly to reform the newly
enacted law.2 7 Whatever else it may be, a civil code is not a regulation or an
order-in-council that can be peremptorily and continually modified. Nor, despite
the complaints about the framing of the law, has this text been concerned to
characterize stylistic, linguistic and first-order conceptual incoherence as funda-
mental flaws in the new Code.208 The processes of last-minute tinkering and
political log-rolling that are inevitably present in late twentieth century law-
making necessarily lead to confusions of vocabulary and definition. Nor, finally,
has this essay been primarily concerned with methodological issues, such as the
respective role of courts (1a jurisprudence) and commentators (la doctrine) in
making sense of the new Code.2″ There is no doubt, however, that the Code
does have a scholastic tenor that will change the character of future doctrinal
commentary, and a judicializing motif that will co-opt the judiciary into a more
overtly legislative role.
My organizing theme has been both more instrumental and more symbolic.
It is this: How, faced with a substantial effort of law reform (ostensibly the pro-
duct of some forty years of collective reflection), 210 whose political purposes are
obscure, and whose intellectual purposes are either contradictory or uncertain
but nevertheless always strongly expressed, ought Quebec jurists –
judges,
advocates and notaries, law professors –
to conceive of and to respond to the
tasks which now confront them?2″‘
26This is, in a first attempt, the exercise undertaken by F. Hage-Chahine (snpra note 29).
2071 confess to having engaged in this largely futile exercise myself. See “The Counter-
Reformation of Secured Transactions Law in Quebec”, supra note 186; “Change of Terminology?
Change of Law?” supra note 125; “Faut-il s’assurer d’appeler un chat un chat ?” supra note 16.
208For a critique of the new Code on these bases, see P. Legrand Jr., “Civil Law Codification
in Quebec: A Case of Decivilianization” (1993) 1 Eur. Rev. Pr. L. 574. On questions of linguistic
usage particularly, see J.E.C. Brierley, “Les langues du code civil” in Le nouveau Code civil : Inter-
pritation et application, supra note 11, 129.
29Some excellent studies of this nature have already been published. See e.g. Bisson, supra note
12; A.-F Bisson, “Dualit de syst~mes et codification civiliste” in Conferences sur le nouveau
Code civil dut Quibec, supra note 9, 39; Brierley, supra note 12; and the entire collection of essays
in Le nouveau Code civil: InterprEtation et application, ibid.
2 100n the tenuous intellectual links between the Civil Code of Quebec and the work of the Civil
Code Revision Office, see Brierley & Macdonald, eds., supra note 3, paras. 73-78.
21’A thoughtful perspective on the complexity of this question may be found in the three essays
published under the title “Les premieres ann6es d’interpr6tation –
exp6riences et prospectives” in
Le nouveau Code civil : Interpritation et application, supra note 11. See, in particular, A. Morel,
19941
RECONCEIVING THE SYMBOLS OF PROPERTY
Implicitly in this essay I have sought to illustrate that the way in which
debate about the new Code has typically been carried on does not conduce to
answering this question. If the effort of the legislature can be understood as fun-
damentally driven by the desire to save appearances –
instrumentally, the
appearance of a civil code as a specific juristic technique, and symbolically, the
appearance of a civil code as a reflection of French legal culture in North Amer-
so too the effort of commentators has a familiar ring of unreality.212 There
ica –
is more to legal analysis than proclaiming newly enacted norms to be good or
bad law reform. Unfortunately, the arguments of progressives and traditionalists
have marched in irreconcilable pairs: the latter advance the classical theses of
reaction –
futility, perversity and jeopardy; the former rely on the historical
necessity, the out-of-touch-with-social-reality, and the imminent danger theses
as intellectual counterweights.213 None of these arguments, however, actually
speaks to what should be done once a new code has been proclaimed in force.
All are framed retrospectively rather than prospectively. But the various cri-
tiques and refutations do reveal that to answer the question as to whether any
particular legislative initiative is good law reform or bad law reform demands
an inquiry that cuts across many dimensions.2″4 Most, although not all, of those
jurists whose lives are centred in the academy are wont to see the quality of law
reform in terms of conceptual coherence above all else.215 Most, although once
again not all, advocates and notaries, on the other hand, are much more willing
to tolerate conflict if the specific outcomes of the new law can be reconciled
with the needs of practice. 216 Still others, among which group one finds a high
proportion of judges for whom achieving a fair resolution for a human problem
framed as a legal dispute is the fundamental value, incline to evaluate law
reform by how well its symbolism mediates lived understandings of justice.217
These first two tendencies –
are the
Scylla and the Charybdis of the reform of private law. For neither can the living
law (the Deed) be constrained to follow passively the forms which the law sets
for it,28 nor can life simply go on in complete abstraction of the prescriptions
the dogmatic and the pragmatic –
Mass.: Harvard University Press, 1991) for an elaboration of these theses.
“L’mergence du nouvel ordre juridique instaur6 par le Code civil du Bas-Canada (1866-1890)”
in ibid., 49.
212In this connection it bears notice that the Civil law was held out as one of the three defining
features of Quebec’s distinct society in the Charlottetown Accord. See Canada, Consensus Report
on the Constitution: Charlottetown (Final Text) (Ottawa: Supply & Services Canada, 1992) at 1.
213See A.O. Hirschman, The Rhetoric of Reaction: Perversity, Futility, Jeopardy (Cambridge,
214See Macdonald, supra note 6.
215For discussion of this academic predeliction, see R. Gordon, “Historicism in Legal Scholar-
216See the comments of Pratte, supra note 64.
217For a discussion of the special perspective of the judiciary in reconciling claims of analytical
coherence, sociological efficacy and moral justness, and the impact of law reform on the judicial
role, see R.A. Macdonald, Economical, Expeditious and Accessible Civil Justice through a Better
Allocation of Civil Disputes: A Framework for Inquiry (Toronto: Ontario Law Reform Commis-
sion, 1994) [forthcoming].
ship” (1981) 90 Yale L.J. 1017 especially at 1045-56.
218The obligatory citation for this insight is Portalis et al., “Discours prliminaire prononc6 lors
de la pr6sentation du projet de la Commission du gouvemement” in P.A. Fenet, ed., Recueil com-
plet des travaux priparatoires du Code civil, vol. 1 (Paris: Au drp6t, 1827) 463. For a contempo-
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of the law (the Word).219 The instrumental power of law may indeed be limited
in the face of recalcitrant social practice, but its symbolic power to control the
vocabulary and metaphors of this same social practice is extensive.22 All this
is to say that whether law reform is good or bad cannot be judged uniquely by
whether it is coherent (or can be made coherent), nor by whether it works (or
can be made to work).22
44. Recodification, like codification, is a special brand of law reform that,
despite the suggestions of some of its artisans to the contrary,2″ is an especially
symbolic endeavour.223 And yet, even as a symbol –
as a civil (or social) con-
stitution –
a new code has its limits. To characterize a code as a “projet de
socidt6” or even as the reflection of a “mouvement de soci6t6 ”2 24 is to forget that
a civil code must in the final analysis reflect, more than construct, the values of
the society for which it purports to speak.2′ This deference of the private law,
over the vast bulk of its domain, to the patterns and practices of everyday human
interaction is necessary because the instrumental efficacy of any rule of private
law (especially those rules designed to construct or modify patterns of behav-
iour) is tributary to the symbolic efficacy of the entire code as a social consti-
tution, and because a society’s values are not univocal. Just as the 1866 Code
was required to mediate between sharply conflicting values,226 so too is the
Code of 1991.227 This mediation can take several forms, as the Civil Code of
Lower Canada well illustrates: a code may simply enact, in parallel, legal insti-
tutions that rest on competing principles, leaving citizens the choice to select the
desired vehicle through which to pursue their purposes; 228 or a code may largely
rary reference in which the point is comprehensively developed, see R.C. Ellickson, Order without
Law: How Neighbors Settle Disputes (Cambridge, Mass.: Harvard University Press, 1991).
219 0ne of the most enlightening sociological studies of the replication of law in lay conscious-
ness is S.E. Merry, Getting Justice and Getting Even: Legal Consciousness among Working-Class
Americans (Chicago: University of Chicago Press, 1990).
220For a discussion of the power of legal symbols, albeit in a constitutional context, see M.A.
Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).
221For an enlightening discussion of how different tendencies in legal theory highlight one or
other of these ambitions, see H.J. Berman, “Ibward an Integrative Jurisprudence: Politics, Moral-
ity, History” (1988) 76 Calif. L. Rev. 779.
222See Draft Civil Code, supra note 10 at xxiii-xxix.
223See the symposium, Codification : Valeurs et langage, supra note 12.
2 24 See Commentaires, supra note 5, front cover.
225Compare the papers collected in Enjeux et valeurs d’un Code civil moderne, supra note 11,
with those in Le nouveau Code civil : Interpritation et application, supra note 11 and especially
that of J.-M. Brisson, “Le Code civil, droit commun ?” in ibid., 292. The papers in the former are
in the tradition of the Code as legislation; those in the latter are in the tradition of the Code as writ-
ten common law. See also E-G. Jobin, “Chronique du droit qu6b6cois: Le nouveau code civil”
[1993] Rev. trim. dr. civ. 911.
2 26See Brierley and Macdonald, eds., supra note 3, paras. 36-41.
2 27See Macdonald, supra note 2, for a discussion of how it does so.
22Several examples may be found in the Civil Code of Lower Canada: the juxtaposition of a
default regime of intestate succession, resting on the concept of an inter-generational family her-
itage, with the concept of freedom of willing (initially deployed to favour the successoral entitle-
ments of surviving spouses); the juxtaposition of a default regime of community property with the
concept of conventional separation as to property; the juxtaposition of a traditional regime of prop-
erty entitlements with a liberal regime of contracts.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
withdraw from a field of private law, leaving citizens to develop their own legal
regimes;22 9 or a code may even contain conflicting or contradictory articles, the
resolution of which requires the counsel of experience and the wisdom of
judges.2o
45. But there are at least three important respects in which the codification
project of 1991 differs from that of 1866. First, in overall timbre: the Civil Code
of Quibec has a didactic and hortatory (some might even say pedagogical) char-
acter not salient in the former Code. It has often been observed that the initial
codification was primarily the work of judges – of those whose daily life con-
sisted in applying the rules of the Civil law to the competing claims of liti-
gants.2 However much its substance reflected the concerns of the petite bour-
22
its form was directed to solving problems that were perceived to be
geoisie,
of daily concern. 3 By contrast, the new Code is much more the work of law
professors and civil servants in the legislative policy branch of the Ministry of
Justice – neither of whom are normally required to reconcile juristic logic and
lived experience in the resolution of quotidian legal disputes. Hence, it is per-
haps not surprising that pedagogical legal definitions proliferate.
Of course, legal concepts and legal classification are inescapable;’
but
their value depends largely on how well they express lived social relations. 5
The Minister’s commentaries about the definition of patrimony repeat the wis-
dom of the 1866 codifiers” 6 and recognize exactly these difficulties with scho-
229This has, until recently, been the general attitude of the private law to pecuniary relationships
within the family prior to the dissolution of marriage; it has also been the general tenor of the law
of contractual obligations in non-consumer matters.
23tTwo examples suffice to show how such contradiction is inherent in the codification exercise:
the interpretation of article 1054, para. 1 as being either a special exception to article 1053, or an
alternative basis of civil liability is not foreordained by the Code; the interpretation of articles 1546
and 1971 as an indication either that retroactive giving-in-payment clauses could (or could not) be
validly inserted into deeds of hypothec also has no conclusive explanation in codal texts.
231See J.E.C. Brierley, “Quebec’s Civil Law Codification: Viewed and Reviewed” (1968) 14
McGill L.J. 521.
232Traditionally, the values of the Civil Code of Lower Canada have been expressed in terms of
some conception of the integrity of the Civil law or the fundamental characteristics of French Cath-
olic rural society. See, for discussion, Brierley & Macdonald, eds., supra note 3, paras. 61-63.
More recently a class analysis of the 1866 Code has begun to emerge. See e.g. B. Young, George-
Etienne Cartier: Montreal Bourgeois (Montreal: McGill-Queen’s University Press, 1981).
233See, in particular, the remarks of the codifiers in Codifiers’ Report, supra note 75 at 8, 10:
The inexpediency of making definitions of this class part of a code is affirmed by the
Roman law, and is apparent in the criticisms which they receive from the commentators
on the French code. Almost all of those specified are shewn to be inaccurate, and they
are declared by Toullier to be of little practical utility.
234Compare the remarks of Gdny, vol. 1, supra note 23 at 155: “[L]a division ou classification
sera, en droit, un instrument principalement technique, qui fasse entrer les rdalit6s en des cadres
destinrs ?t en prdciser les contours et h rendre plus aisre et plus sore l’adaptation de la discipline
juridique t ]a vie.”
235See H. Motulsky, Rialisation mithodique du droit privg (Paris: Sirey, 1948) at 24.
236See Codifiers’ Report, supra note 75 at 10:
As reasons then for their rejection, it may be stated, 1st. that they are not and cannot
easily be made exact, and may therefore occasion doubts and difficulties; 2nd. they are
not complete, as they do not include mixed contracts, contracts principal and accessory,
McGILL LAW JOURNAL
[Vol. 39
lastic defimitions. 7 And yet, the Civil Code of Quebec is replete with legal con-
cepts originating in scholastic definition more appropriate to the doctrinal mis-
sion.2″
46. A second difference between the 1866 and 1991 Codes –
the neologic
vocabulary of the latter –
can be traced to their ostensible juridical purposes.
The nineteenth century exercise was intended as a codification above all else,
not as an exercise of law reform: notwithstanding the codifiers’ authority to pro-
pose modifications to the existing law, reformulation (the container) rather than
reform (the contents) was the intellectual framework adopted.239 Absent detailed
evidence about whether the Code changed the practice of either lawyers, nota-
ries and judges or the daily routine of citizens, one can only assume that the sub-
stantive intent was in fact realized. The new Code, by contrast, has been expli-
citly justified on the basis of a pressing need to reform the law.24 The needed
reform was threefold: sociological –
closing the gap between codal rules and
lived experience; methodological –
consolidation and rationalization of con-
flicting currents in judicial interpretation; symbolic –
integrating extra-codal
legislation so as to reassert the centrality of the Civil Code as text. None of
these, in and of themselves, justify global recodification. On the one hand,
rarely do new codes embody institutions that amend the Civil law much beyond
the position to which judicial interpretation, legislative amendment within or
outside the Code, or the developments of practice had already arrived. On the
other hand, there is no evidence of any great social clamour for general recodi-
fication of the private law.
Nevertheless, because over the past decades a variety of reforms in relation
to the three or four central themes of a civil code (What is a person? What is
a family? What is property? How may it be deployed? How free should contract
be? How central is fault to civil liability?) were thought necessary, recodifica-
tion rather than incremental readjustment could be justified. And even if the
project itself has had at least three generations with quite different objectives –
an initial attempt in the 1950s, based on the French precedent, to re-centre the
Code so as to preserve its traditional values; a second attempt in the 1960s and
contracts subject by law to certain forms and those not so, and other distinctions
equally well founded; 3rd. they are of no practical utility even if rendered exact and
complete. Moreover, they belong to a class of subjects which, by a sound philosophical
adjustment, ought rather to be committed to the learning of the courts, than confined
within the inflexible terms of positive legislation. The only definitions which should
be adopted, are those which are imperative and sacramental, and those which involve
some rule of law, or are so inseparable from a particular rule, that by their omission
it would become ineffectual or obscure.
237See Commentaires, supra note 5, discussing article 2 of the Civil Code of Quebec:
I1 n’a pas sembI6 utile de drfimir la notion de patrimoine; l’absence d’une telle d~fini-
tion dans le droit antrrieur n’a pas soulev6 de difficultds, et, par ailleurs, cette notion
constitue une rralit6 complexe, difficile h exprimer dans une definition simple qui
rpondrait h toutes les questions throriques.
238The hazards of legal definition, even in the doctrinal context of a private law dictionary, are
brilliantly elaborated in the study by N. Kasirer, “Dire ou drfinir le droit?” (1994) 28 R.J.T. 141,
2390n the mandate of the Commission, see Brierley & Macdonald, eds., supra note 3, paras.
24-32.
24See Crpeau, “Civil Code Revision in Quebec”, supra note 10.
1994]
RECONCEIVING THE SYMBOLS OF PROPERTY
1970s to deploy the Code instrumentally in the service of the post-Quiet Revo-
lution Quebec; and a third attempt in the 1980s and 1999s to give the Civil Code
a symbolic currency for a new Quebec –
as a project its achievement became
irresistible. These three elements –
preservation and purification of a heritage,
technical rationalization and modernization, recognition and legitimation of a
social project – make specific demands on the legislator. One cannot rely on
a changing social function of an unchanged legal norm to reconcile practice and
text or to satisfy expectations nurtured by the political process.24′ The organiza-
tion, presentation and vocabulary of the Civil Code of Quebec must be novel,
even in those cases where its substance is not.242
47. Finally, the two codes differ in their conceptions of the foundation of pri-
vate law. Whatever may have been its ancillary effects, the codification of 1866
sought to provide facilitative rules and institutions within which citizens could
live their own normative lives more or less independently of the institutions of
the political State. Neither administrative bodies – public curators, consumer
protection offices, adoption agencies – nor the courts were seen to be funda-
mental to the private law. In their place, a variety of normative institutions –
the church, the community, the family, even the market –
each reflecting an
overlapping but distinct legal order, were believed to provide the essential
framework of daily life.243 The project of 1991 is, by contrast to the explicitly
pluralistic conception of the 1866 Code, a true reflection of what has come to
be known as legal centralism. Law is fundamentally the prerogative of the State.
It is the explicit creation of written rules generated by an authorized “legislator”.
Its scope is unlimited, and it can only be authoritatively interpreted and applied
by the official institutions of the State.2′
Given this ideology that even the private law is the child of the political
process, and that no field of law (from the intimate decisions about the names
of spouses and children to the global decisions about the definition of property)
is exempt from its regulation, it is hardly surprising that the pitch of codal rules
has become much more detailed. Once the enterprise of private law is seen prin-
cipally as a means of social control, the degree of specificity required to impose
the required control is heightened. In the Civil Code of Quibec, much more so
than in the 1866 Code, “general principles pregnant with consequences” have
been abandoned in favour of regulatory ordinances directed to specific situa-
tions. Necessarily, and even in the absence of a conscious political choice to
replace the existing social institutions that wield decision-making authority with
the courts, a code, the text of which purports to announce solutions to legal
problems rather than lines of inquiry for conceiving these problems, will make
241See, for a challenging elaboration of this feature of codified private law, K. Renner, The Insti-
tutions of Private Law and Their Social Function, trans. 0. Kahn-Freund (London: Routledge &
Kegan Paul, 1949).
See the discussion in Brierley, supra note 208.
242
243For a discussion of this view of the private law, see Macdonald, supra note 2, paras. 24-56.
24For a discussion of alternative conceptions of private law, even in modem societies, see R.A.
Macdonald, “Recognizing and Legitimating Aboriginal Justice: Implications for a Reconstruction
of Non-Aboriginal Legal Systems in Canada” in Royal Commission on Aboriginal Peoples, Abo-
riginal Peoples and the Justice System (Ottawa: Supply & Services Canada, 1993) at 232.
REVUE DE DROIT DE McGILL
[Vol. 39
an application to the court the primary recourse for resolving interpersonal con-
flict.245 That the new Code should explicitly reinforce such a tendency by enu-
merating a plethora of instances where any disagreement is subject to judicial
mediation, is merely the logical concomitant of a statist conception of private
law.
2 46
48. How then do these three dominant characteristics of the Civil Code of
Qudbec –
its pedagogical timbre; its neological vocabulary; and its statist and
judicialized forms –
bear on the tasks now confronting jurists? They change
technique; but they do not change objectives. As much as jurists want to believe
that the Code itself is the dominant legal artifact of modem society, their day-
to-day routine belies the belief. After all, codification is a wager that it is pos-
sible to use a non-technical language, cast at a level of abstraction so as to have
a degree of permanence, to give a structure to legal argument that nevertheless
permits life to continue as if it did not exist.
In respect of a recodification, and especially in respect of a recodification
which in part is designed to eliminate conceptual confusion, this underlying
objective rarely can be accomodated by taking an absolute position on one side
or another of a doctrinal controversy. This is because doctrinal controversy –
be it between objectivist and subjectivist conceptions of patrimony, or between
materialist or immaterialist characterizations of rights in things –
is not simply
the product of the proclivity of scholars to argue about definitions. It is also a
representation of, and surrogate for, other more enduring conflicts. These con-
flicts – whether epistemological or ontological –
are endemic to sociallife.
No code can resolve them, for they are generated, articulated and disputed in all
facets of human interaction. How well a civil code permits jurists to conceive
and to reconceive law’s symbols in a manner that is both responsive to and edu-
cative of this everyday activity, and that ultimately effaces reference to a spe-
cific text as the defining characteristic of private law, is the true measure of its
success.
245For an examination of the effectiveness of such a strategy, see Macdonald, supra note 6.
246Tis is one of the themes addressed in Legrand, supra note 208.
