THE ARTICLES OF THE CIVIL CODE ON THE PRIVILEGES OF
THE BUILDER: SOME OF THE PROBLEMS THEY POSE AND
SUGGESTED AMENDMENTS THERETO
John W. Durnford*
Privileges are an exception to the rule that all creditors rank rateably in
relation to the assets of their debtor (articles 1981 and 1982 C.C.), and unlike
hypothecs, which can be created by private agreement, privileges exist only in
those instances provided for by law. Consequently, the only claims that are
privileged are those listed as such in the Civil Code (the privileges on moveable
property are set forth in articles 1993 and following, and those on immoveable
property in articles 2009 and following), together with a number of additional
privileges especially created by statute, e.g. under the Quebec Succession Duties
Act (1943, 7 G. VI, ch. 18), government claims for succession duties are also
privileged.
Why are certain claims declared privileged? Article 1983 C.C. states that
the cause of the preference granted to the privileged creditor is based on the
origin of his claim. In other words, certain claims are declared privileged
because of their special nature rather than because of the personality of the
creditor. Accordingly, funeral expenses are privileged because of the desirability
of the dead being buried rather than with a view to favouring the undertaker
over other creditors. This is in contrast to hypothecs, which are designed to
protect certain creditors. In a conventional hypothec, it is the specific creditor
who has demanded the security who is protected. Perhaps a more apt example
would be the legal hypothec, which results, like privileges, from the law alone
but which is applied for the protection of certain creditors because of the particu-
lar qualities of those creditors –
thus, for example, married women have a
legal hypothec to secure certain claims against their husbands (article 2029
C.C.), and minors and interdicts have a legal hypothec upon. the immoveables
of their tutors or curators for the balance of the tutorship or curatorship
account (article 2030).
From the foregoing, we can presumably deduce that it is by reason of the
special nature of the claims of the workman, supplier of materials, builder and
architect that the same are declared to be privileged. As the said claims find
their origin in work done on buildings, it might be suggested that this rule is
a corollary to the principle set forth in article 1688 C.C. that the builder and
architect will be jointly and severally liable in the event of the perishing of the
building within five years, this provision being one of public order and conse-
quently not susceptible to being derogated from by private agreement1 .
In
*Associate Professor of Law, McGill University.
‘Mignault, Le Droit Civil Canadien, VII, p. 407; Faribault, Traitide DroitCivil dsQidhbec, XII, p. 440.
No. 3]
PRIVILEGES OF THE BUILDER
other words,
it being in the public interest that buildings be properly
constructed, the securing of the claims of the builder is not only a necessary
and desirable but also an equitable counterpart to the heavy onus placed on
him2. There is, however, apparently another equitable cause for the existence
of these privileges, namely, the builder having added to the value of the
property, it would not be fair if the other creditors of the debtor were allowed
to benefit from the additional value at the builder’s expense –
thus the provision
for him to be disinterested first. Let us now consider whether the Code articles
contain adequate provisions to secure the claims of the builder.
The provisions of the Civil Code as to the construction privileges have
suffered from many vicissitudes, having been amended in 1894, 1895, 1904, 1916,
1924, 1947 and 1948. The mere fact of so many changes in the law discloses in
itself an unsatisfactory situation, and the articles were not all models of good
and clear drafting at their various stages of amendment. In the case of Archibald
v. Maher4, Mr. Justice Brodeur was moved to say:
(at pages 470-471)
il y a des oublis bien 6vidents et qui nous d~montrent bien que toute
cette lgislation a 6t& r&lig6e bien hitivement et qu’elle donne lieu A certain doute et i une
certaine ambiguit6 qui doivent nous faire rechcrcher l’intention du l6gislateur (art. 12 C.C.).
…
Mr. Justice Mignault, in the same judgment, described the articles as:
(at page 476)
…
this frequently amended and somewhat unskilfully drafted legislation.
It should be noted, however, that this judgment, while it was rendered in
1921, was applying the law in force prior to the 1916 amendments, which were
substantial. Moreover, of the post-1916 amendments, the 1924 one only affected
article 2013e and the 1947 and 1948 ones merely altered the method of registra-
tion of the privileges. This means that the rules governing the construction
privileges have not been altered in substance for a respectable length of time.
As the large scale of building activity that has occurred has caused this part
of the Code to be frequently applied and subjected to litigation, the lack of
further amendments might be taken as an indication that the articles as they
now stand have on the whole proved satisfactory. While this may be true in
a general way, there are nonetheless various improvements that could be made.
Article 2009 C.C. lists those privileges that affect immoveables. In seventh
place is found:
The claim of the workman, supplier of materials, builder and architect, subject to the
provisions of articles 2013 and following;
We then find that article 2013 C.C. reads as follows:
The workman, supplier of materials, builder and architect have a privilege and a right
of preference oter all the other creditors on the immoveable’, but only upon the additional value
given to such immoveable by the work done or by the materials.
2As to the notion of equity, see the remarks of Brodeur, J., in Archibald v. Maher (1921). 61 S.C.R.
465 at 467.
Masson v. Salomon (1937), 62 K.B. 50, at 53 and 58-60.
4(1921), 61 S.C.R. 465.
wTe italics are mine.
McGILL LAW JOURNAL
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According to this latter article, the builder ranks first (even though this
will only be in relation to the additional value he has brought about and he
will not rank as a privileged creditor at all on the rest of the immoveable’s
value), but this is in contradiction to his having been classified as ranking in
seventh place in article 2009. It may well be that the phrase in article 2013 is
merely to give the builder precedence over a hypothecary creditor 6, but the
article does not say so. Marler 7 , in referring to this article, merely italicizes
the words “by preference over all other creditors” with a view to underlining
their importance and thus seems to infer that they cause the builder’s privilege
to override the six preceding privileges listed in article 2009, but he does not
actually say so. Giroux8 , on the other hand, is of the definite opinion that the
construction privileges will rank after the other six, but tempers this by sug-
gesting that of those six only law costs and assessments and rates are likely as
a general rule to outrank the construction privileges, the rest of the six being
rarely claimed at the same time9 .
The difficulty that we are faced with here may have been caused by a mis-
interpretation of articles 2009 (7) and 2013. It has been frequently held that
the builder’s privilege affects only the additional value”0 . Is this accurate?
If the two articles are read together, do they not mean that the builder ranks
first as regards the additional value he has given to the immoveable and seventh
as regards the balance of the immoveable’s value?
In any event the exact meaning of the articles is not clear and it is submitted
that an amendment should be made to clarify the situation.
In whose favour do the construction privileges avail and for what services
performed and materials supplied? Are they limited to pure construction and
then only when performed directly in relation to the building being erected?
That these privileges will rank before a hypothcc appears from: Marler, The L aw f Real Pr pcr,
pp. 342, 376 and 377; Giroux, Le Frivil?,ge Ouier, pp. 34, 37, 46 and 407-408; ‘!Des Privieges et des
Hypothiques” by Philippe Demers, J., Journes du Droit Civil Frangais, p. 527; “Etude sur 1a loi
des privileges” by Oscar Desautels (1927-28), 30 R. du N. 144 at 145; La Perrelk Lxhw
Ce. Ltd. v.
Langlois (1939), 77 S.C. 1 (Pratte, J.) (where the hypothec was registered on May 2, the end of the
work occurred onJuly 16 and the privilege was registered on August 6); Supttest Petrltaw Cwprution
Ltd. v. Jaqaes-Cartier Automobiles Inc., [1960] S.C. 329 (Edge, J.) together with the case comment
thereon by Roger Comtois (1960-61), 63 R. du N. 109 (but it should be noted that the judgment is
presently under appeal).
7Te Law of Real Properry, p. 362.
ie Privilge Ourktr, pp. 404-407.
9Se Ethier v. Dugmay, [1961] R.P. 399 (Marquis,J.), at p. 404, where the law costs and assessments
and rates were made to rank before the privilege of the supplier of materials.
“Ethier v. Duguay, [1961] R.P. 399 (Marquis, J.); Gadbois v. Stimson-Reeb Builders Supply Company,
[1929] S.C.R. 587 at 594; In re: Legault (1939), 67 K.B. 356; Marler, The Law of Real Propert, p. 354;
Giroux, Le Privillge Ounier, pp. 390 and 407.
No. 3]
PRIVILEGES OF THE BUILDER
In Bernier v. Foucault”, the Court of Appeal held that workmen engaged by
a supplier of materials to cut stone in a quarry that was to be furnished for the
construction of a church (situated at about 95 miles from the quarry) had no
privilege on the church property for their wages, their work not having been
done on the immoveable in question. This unquestionably is a sound decision
on the provisions of the Code, and if the privileges, which are by nature
exceptional, are to be kept within any reasonable bounds (i.e. work done
directly on the immoveable itself), the law on the point appears to be fair.
Similarly, it would only seem right that where a workman is engaged for the
levelling of a vacant lot and the planting of sod thereon, he should have no
privilege on the property, no building construction being involved (as was held
in Boileau v. Terreault’2).
We are faced with a more borderline situation, however, where we see a
supplier of materials being denied a privilege in connection with the furnishing
of gravel for the levelling of ground around a building being erected’.
It is
true that article 2013e grants a privilege to the supplier of materials “.
. . on
the immoveable in the construction of which the materials supplied to the
proprietor or builder have been used .
.”, but as good building is regarded
by the law as being in the public interest, and as the construction of a building
in the larger sense is not complete until the ground has been properly levelled
around it, can it not be argued that he who has participated in such levelling
has made a contribution to the construction entitling him to a privilege?
It is submitted that an amendment might possibly be in order here.
.
A far more serious problem, however, poses itself. Suppose a building needs
a new roof. This would be classed as a repair. Or suppose an old building is
modernized and/or substantially renewed or altered; this would be renovation.
It is in the public interest that good buildings be constructed –
is it not just
as much in the public interest that buildings be kept in good repair and
condition? It might be objected that if anybody doing repair work on a building
were to be granted a privilege, e.g. a plumber for replacing a pipe, a bricklayer
for repointing a few bricks and a painter for repainting a few rooms, the door
would be opened to a flood of privileged claims which would run contrary to
the policy of the law: namely, that a privilege constitutes an exception to the
general rule that all creditors rank equally. Is this objection well foanded?
The same limiting factor would apply as already affects all construction privi-
leges – namely, that the privilege would only affect whatever additional value
might be given to the property by the work done or by the materials furnished
(article 2013). Thus the mere replacement of a pipe, the repointing of some
bricks and the repainting of a few rooms would probably not confer any
privilege on the plumber, the bricklayer or the painter because of the absence
11(1941), 70 K.B. 315.
12(1935), 73 S.C. 129 (Chase-Casgrain, J.).
13Robert v. Bauliane, r1956! R.L. 446 (Drouin, J.”.
McGILL LAW JOURNAL
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of additional value, in just the same way as a person partaking in the original
construction whose work or materials failed to add to the value would have no
privilege either.
Do the courts hold that repairs and renovations are eligible to be declared
privileged? There is no clear-cut answer to this question as the courts have
wavered in the face of unclear Civil Code provisions.
In the case of Rochon v. Garneau’, Mr. Justice Chase-Casgrain held that the
work that plaintiff plasterer had done was nothing more than repairs to the
interior of the building consisting of maintenance work and decoration which
were not necessary to prevent the perishing and deterioration of the building
and did not constitute construction work, which alone was accorded a privilege
by the Civil Code. However, it should be noted that the court held that plaintiff
was too late in any event, and it seems unlikely that the work met the criterion
of article 2013 of adding value to the property.
In the very same volume of the Superior Court reports, a diametrically
opposed decision was rendered by a highly regarded judge, Mr. Justice Philippe
Demers, in the case of Masson v. Solomon”. He cited Troplong and Pothier to
show that in the old French law the privilege covered repairs. This was
reproduced in the famous Registration Ordonnance passed by the Special
Council in 184116 of which section 31 reads in part as follows:
31. Et qu’il soit de plus Ordonni et Statu6,
les crianciers privdikgirs, des privilages ct
qu
droits et r&lamations privilgi~s desquels il
sera et pourra ftre enregistr6 des somniires en
conformitt avec cette Ordonnancc, sont ct
seront d&claris acrc les suivants, savoir.–
… Quariimenent les Architectes, construc-
cents, ou autrcs ouvriers, employks I l*&ifica-
tion, reconstruction, ou reparation de bitisses,
canaux, o autres travaux on ouvrages,…
31. And be it further Ordained and Enacted,
that the privileged creditors, of whose privi-
leges and privileged rights and claims, memo-
rials shall and may be registered, in pursuance
of this Ordinance are, and shall be adjudged
to be, the following, that is to say:.-…
Fourthly, Architects, builders, or other work-
men employed in the building, re-building, or
repair of buildings, canals, or other erections
or works;…
Much the same wording was used when these provisions were reproduced
in the 1861 Consolidated Statutes for Lower Canada 17.
26. Les crianciers privil~gi~s dont les rcla-
mations devront 6trc enregiscr&s dans Ic but
de conserver lenr priort6 d’hypothaque I cet
igard, sont les suivants:
26. The privileged creditors whose claims
shall be registered in order to preserve their
priority of hypothec thtrefor, arc the follow-
Mng:
4. Les architecctes, constructcurs on aunrs
ouvriers employ&s i la construction on re-
reparation de bitisses,
construction on
canaux on autres 6dificcs et ouvrages;…
4. Architects, builders or other workmen
employed in the building, re-building or
repair of buildings, canals, or other erections
or worls;…
Having referred to the foregoing old law, the judge pointed out that the
codifiers were obliged to reproduce the old law in the Code. He dealt with the
objection that the codifiers employed only the word “construction”
in the
14(1935). 73 S.C. 5.
1(1935), 73 S.C. 196.
154 Victoria, chapter 30.
“7 Chapter 37, section 26.
No. 3]
PRIVILEGES OF THE BUILDER
French text by saying that they also dropped the mention of “canaux ou autres
ouvrages” and that in the English version the word “works” was used in place
of the words “building, rebuilding and repairs” of the old law, and that under
article 2615 it is the English text reproducing the previous law which prevails.
It should be noted that this discussion by the judge is based on the original
text of 2013 as prepared by the codifiers (and which had been replaced in the
meantime by the present article 2013 in 1916), the relevant part of the article
then reading as follows:
2013. Le constructeur, ou autre ouvrier Ct
l’architecte ont droit de pr~f&ence seulement
sur la plus-value donn6e a l’hritage par leurs
constructions …
2013. Builders, or other workmen, and
architects, have a right of preference … only
upon the additional value given to the im-
moveable by their works …
Thus he concluded that the Code had not changed the law and that
accordingly the privilege covered repairs as well as construction. Moreover,
he held that this was also true under the present version of article 2013 which
speaks of “travaux ou mat&iaux”:
2013. L’ouvrier, le fournisseur de mat&iaux,
Ic constructeur et l’architecte ont un privilage
et un droit de’pr~f&ence sur lFimmeuble, mais
seulement quant i la plus-value donn& a cet
immeuble par leurs travaux ou mat&iaux, 1
l’encontre de tous les autres cr~ancicrs.
2013. The workman, supplier of materials,
builder and architect have a privilege and a
right of preference over all the other creditors
on the immoveable, but only upon the addi-
tional value given to such immoveable by the
work done or by the materials.
Furthermore, Mr. Justice Demers argued that the word “constructeur” was
not limited to “celui qui b.tit”, but that instead a “constructeur” does all
kinds of work: construction work, improvements and repairs.
In support of his view that the privilege covers repairs as well as construc-
tion, Mr. Justice Demers cited Desbiens v. lVilandre”‘, in which Chief Justice
Sir Franqois Lemieux said “I1 est de doctrine que le mot constructeur s’entend
de l’entrepreneur de travaux tant de construction proprement dite que de r~pa-
ration” (but it should be noted that in that case it was held that the builder
had lost his privilege through tardy registration, which detracts from the
weight of the opinion expressed); Langelier ” , who said (in commenting on
article 2013) “Comme vous voyez, le privilege mentionn6 dans cet article ” est
pour garantir toute cr~ance rEsultant de travaux faits sur un immeuble pour v
construire un Edifice, ou le r~parer- (but apparently he did not expand on this
bare statement); and the following statement in the head note of the Supreme
Court decision in Riordon Co. Ltd. v. John TV. Danforth Co. 21: “A person who
has supplied work and material in the construction or repair of a building and
who under provincial law has acquired a lien or privilege upon the increased
Ht(19 23 ), 61 S.C. 124 at 125.
“‘Cours de droit civil, VI, p. 228.
20Article 2013 was no longer in its original form but was not yet in its present form. At the time
that Langelier wrote, it conferred a privilege”.., upon the additional value given to the immoveable
by the work done (travaux faits)”.
21(1923-24), 4 C.B.R. 248 at 249.
McGILL LAW JOURNAL
[Vol. 8
value of the real property by reason thereof is a ‘secured creditor’ for the
amount of such lien or privilege within the definition of sec. 2 (gg) of the
.” (but there seems to be an absence of remarks in the notes
Bankruptcy Act. .
of the judges supporting this statement that repairs are privileged).
The judgment of Mr. Justice Demers was taken to appeal under the name of
Masson v. S”alomon2 2. In appeal it was argued that while under the old French
law and under the Napoleonic Code repairs were included, our law had been
changed by our Civil Code in that repairs were omitted. The Court of Appeal
maintained the trial judgment but with two out of the five judges dissenting
(Dorion and Rivard, JJ.), Chief Justice Sir Mathias Tellier held that the
builder’s privilege included repair work as well as new construction work
(though of course only insofar as the same gave additional value to the prop-
erty), and pointed out that under article 2013 a privilege is conferred on the
builder et al when “par leurs travaux ou mnatriaux” they have added to the
property’s value, it being irrelevant whether the work or materials are applied
to the erection of a new building or the repair of an old one, there being no
distinction in the Code.
Mr. Justice Walsh was of the opinion that ordinary repairs would not give
rise to a privilege. This statement was probably meant to be modified by a
subsequent statement to the effect that the builder and workmen should be
protected if their work and material enhanced the value of the immoveable,
which would apparently not exclude those repairs which qualified. However,
there is no escaping the fact that Mr. Justice Walsh was in favour of granting
the privilege only on the basis of there having been renovation to the point
of partial reconstruction. He felt that there was such partial reconstruction
in this instance.
Mr. Justice St. Jacques said it was unnecessary to compare the French and
English versions of the Code to come to the proper answer; that the answer lay
in the principle common to all legal systems that as a matter of equity all
works done on an immoveable will give rise to a privilege; that the omission
from the Code of specific reference to repair work did not exclude the same;
and that the real criterion was that the builder’s privilege was based on the
increase in value resulting from the works done.
Mr. Justice Dorion, dissenting, said that if a privilege existed for repairs,
it could only be if the Code articles in their latest amended form provided for
it, and because of the various amendments that had occurred it was not per-
missible to have reference to the pre-Code law or to the opinion of Pothier.
This statement is based on unanswerable logic, and Mr. Justice Dorion then
proceeded to interpret the Code in the following manner: the articles speak
only of construction, not repairs, e.g. article 2013 uses the word “constructeur”
(builder), and in article 2013a is found the word “construction” both in rela-
tion to the definition of the term “end of the work” and of the term “supplier
22(1937), 62 K.B. 50.
No. 31
PRIVILEGES OF THE BUILDER
183
of materials”. The judge did admit, however, that provided that repairs
comprised partial constructions or reconstructions, they would qualify for the
privilege but only insofar as they constituted construction.
In other words,
besides the necessity for the work and materials to have met the criterion of
having added to the value of the property, the judge is holding that they
must also constitute construction.
Mr. Justice Rivard (also dissenting), after stating that privileges are to be
interpreted narrowly, pointed out that the Legislature deliberately omitted
repairs and that repairs could not be included in construction, as the latter
means to build according to a plan, the act of building being to erect on the
ground works of masonry or woodwork (or to enlarge a building already
built), whereas repairs of an already existing house will not constitute construc-
tion. It is significant that Mr. Justice Rivard dismissed the work done in the
present case as being mere decorating work and the repair of deteriorated
surfaces, unlike Mr. Justice Walsh who labelled it renovation or partial re-
construction and consequently entitling the contractor to a privilege which
the latter judge stated would not exist for ordinary repairs.
Thus the decision of the Court of Appeal in the case of Masson v. Salonon
on the question of repairs being eligible for a privilege is a weak one. Only
two of the judges, Tellier and St. Jacques, JJ. held that repairs were covered,
the two dissenting judges disagreed, and Mr. Justice Walsh was of the opinion
that ordinary repairs did not qualify, but only renovations amounting to partial
reconstruction.
In a comment on the foregoing Court of Appeal judgment2:, Me. Henri
Turgeon was inclined to feel that the view of the dissenting judges that repairs
were not privileged would prevail. He relied in part on the opinion of Giroux
,
who cites article 2013f to the effect that the builder (constructeur) has a
privilege on the immoveable for the work he has done as such, ar.d then defines
a builder as one “..
. qui b~tit, qui difie, qui construit”, i.e., one whose
activity constitutes construction work. From this Giroux concludes that a
person is only entitled to the privilege of article 2013 if he is a builder (cons-
tructeur) and does construction work, which he defines as consisting of the
erection or enlargement of a building. The following passage is of particular
interest:
(Page 85-86)
. . . il doit, pour Etre appcIc Itc nstructeur de ‘article 2013, faire des travaux
dc construction sur on imincuble; il doit done &iger tout un 6dificc ou une partie; ii doit faire
un assemblage de mat&iaux d’oa r~sulte un bitiment ou de scs ocuvres vives; il doit faire les
travaux, soit au total soit pour une partie, pour qu’une bitisse existe comme bitisse; en un
mot, il doit, parson oeuvre, soit cr&r un Edifice, soit en transformer un. Les travauxdeconsrruc-
tion ne sont donc que ceux qui font existcr un Edifice ou qui
‘agrandissent; ne peuvent done
prter cc nom, tous les divers travaux qui ont pour but de maintenir en b )n ordre une propri&E,
Cl’orner, de 1’embellir, dc la d&corer ou de lui adjoindre des commodit&s. En consequence,
ne concourant pas ?i ]a construction d’un Edifice, ne peuvent Etre It constructeur de l’article 2013
et jnuir d’un privilege comme tel, ceux qui font sur l’immeuble des travaux d’entreten, z,. .
2(1936-37), 39 R. du N. 381.
24L Pririlge Ourrier, pp. 84-86, 113-121. It should be noted that this book was published in 1933.
McGILL LAW JOURNAL
[Vol. 8
ceux qui r~parcnt le syst~me de chauffage, qui posent du papier de tenture sur les murs d’une
piace, qui vernissent des planchers, etc.; ceux qui font sur l’irmeuble des travaux de r~paration,
v.g. ceux qui refont unc couverture, qui placent du ciment dans les interstices des pierces d’un
or, qui refont plancher, qui rcplacent du pltrc sur les nours, etc.; ceux qui font surl’immeublc
des travaux d’embellissement, v.g. ceux qui posent des tapisserics, des boiseries, qui d~corcnt
un appartement, qui y disposent les tentures, ceux qui y placent Its tapis, qui y entrent les
meubles mcublants ou qui les choisissent, etc.; enlin, tous crux qui, par lcurs travaux, aug-
mentcnt les services et l’utilit6 d’une proprikte, v.x. ceux qui y installent des machineries,
bouilloires, frigidaires, en un mor, toute la s~rie d’objers mobiliers suscepribles de dcvcnir, par
Ic service qu’ils procurent a une proprit6 ou par lenr attache matrielle, immeublcs par desti-
nation; et, pour terminer, ceux qui amnagent un terrain en parce, en jeu de tennis, etc.
The author seems to go somewhat further in the following passage taken
from page 118:
… Mais ne peuvent faire naitre deprivilcges ouvriers: tous les travaux d’entretien d’un
6difice; tous les travaux de d~coration ou dornementation d’une propri6tE; tous les travaux de
r~parations; tous les travaux de r6fection, v.g. remplacer par un toit plat une couverrurc A
ignon, transformer en magasin le rez-de-chauss~e d’une maiscn rsidentielle, modifier les
tivisions d’un appartemenr, convertir en plusicurs logements une proprift6 A un soul logement,
etc.;…
It seems to be going rather far to suggest that it is not construction to
replace a flat roof by a gable one, to convert the ground floor of a house into
a store, and to convert into several lodgings a property which consists of a
single lodging.
With the rather weak decision of the Court of Appeal in the Massot; v.
Salomon case and Giroux’s hostile opinion as background, what subsequent
views have been expressed on the question of repairs?
Mr. Justice Duranleau, in Sirois v. Novis”-5, in connection with the claim
for wages of a workman (a carpenter)-hired by the contractor for repair work
which the latter was carrying out, was very definitely of the opinion that
repairs were included, and he held that in this instance the repairs and additions
(which were not specified in the reported judgment) were important and of a
nature to add to the property’s value.
On the other hand, Mr. Justice Denis, in the 1945 decision of Hvdon v.
Clitsky2 , expressed grave doubt as to whether repairs were included, but he
was able to avoid ruling on the issue because he held that the repairs had not
added to the property’s value. In Bellefeuille v. Eellefeuill2
, Mr. Justice P.
Cousineau held that a claim for painting was not eligible for a privilege.
Demers, in Traittde Droit Civil du Quebec, XIV, at pages 167-168 says the
following:
o .. II couvre lcs rravaux de construction, dc mEme que ceux dc r~paration ou d’am~liora-
tion pourvu quc ces dcrnic-rcs r~parations et ameliorations, aicnt donn6 I la Ixltissc
cn question
unc plus-value r~elle et appreciable. Car s’il ne s’agit que de r~parations ordinaires qui nc
servent qu’i remettre en 6tat des choses endommages ou vicillieson ne pent prctendre quil
a 1 one plus-value quelconque de dcnne a l’Idifice. C’est 1 que peut entrer en jeu Ic caractarc
de 1’dificc dans l’appriciation de ia plus-value. Pour one construction donn~e, les rparations
peuvent ne pas donner une plus-value, pour une autre, c’est diffrent…
21[1943] R.L. 418.
” [1945] S.C. 201.
2 [1953] R.L. 170.
No. 3]
PRIVILEGES OF THE BUILDER
Thus the Courts are divided on the issue as to whether repairs are included.
It is the opinion of the writer that the present provisions of the Code are not
satisfactory on this subject. There is, first, the criterion that the work or
materials must have resulted in an additional value. There is, secondly, the
other criterion of rather doubtful application that the additional value must
have resulted from construction. Is there any reason why the repairer should
not be entitled to a privilege just as much as the builder who constructs insofar
as additional value is given to the property, or insofar as the repairs prevent
a diminution of the value of the property by preventing or forestalling deteri-
oration? It might be argued that repairs that are such as to have added to the
value of the property must necessarily constitute construction and therefore
qualify for the privilege. This will undoubtedly be true in many instances.
However, there are repairs (e.g. painting an old house) which will in no way
constitute construction but which may nevertheless add value. Is it sound,
then, to have any criterion other than the addition of value to the property
by work done or by materials? Would it not be better to omit the requirement
that construction be involved?
It is-suggested that it should be borne in mind that this privilege is based
in part at least on the equitable principle that a debtor’s other creditors should
not benefit from the additional value given to a debtor’s property by a particular
creditor without first disinteresting that creditor. Is it relevant how the addi-
tional value was brought about? Furthermore, we have seen that it is in the
public interest that good buildings be built. It is just as important that build-
ings already erected be properly maintained.
It is therefore submitted that the Code should be amended so as to confer
the privilege on all those who add to the value of an immoveable by work
done or by materials and whether by construction or otherwise, and so as to
confer the privilege also on those who by their work or materials prevent the
deterioration of a building which would lead to a diminution of its value.
That these ideas are neither revolutionary nor new appears from the following
passage from Marler:
(page 354) The creditor who has done any work whatsoever on an immoveable which
has given to it an additional value is entitled to the privilege for what is due him.
and from the following passage from the notes of St. Jacques, J. in Masson v.
Salomon (supra):
(page 60) L’id~e dominante de notre loi en cettc matiare de priviliges accord~s 1 l’ouvrier,
ou fournisseur de matiriaux, au constructeur er 1 1’architecte, procide de ce principe: que la
plus-value donne a l’6difice ou A l’immeuble par leurs travaux doit Etre attribuce lorsqu’il y
a concours entre les cr~anciers, au paiement des travaux qu’ils ont faits, et cc, dans la mesure
et jusqu’! concurrence de l’augmentation de valeur.
Cest RA, A mon avis, le vritable critare pour dterminer de quelle fagon se partagera le
prix de vente d’un immeuble lorsqu’il est insuffisant pour acquitter toutes les criances qui
aff ectent.
The valid exercise of construction privileges depends on their being
registered and/or sued on within specified delays reckoned from the date of the
M GILL LAW JOURNAL
[Vol. 8
“end of the work”, failing which the privileges are lost. It is therefore crucially
important to be able to determine when this date occurs. The definition of
article 2013a is exceedingly vague, perhaps deliberately so in order to give
the Courts latitude in deciding individual cases 28 :
The words “end of the work” mean the date at which the construction is ready for the
use for which it is intended.
The Courts have filled out this definition with a series of rules that on the
whole have been consistent and logical. Thus the occupation of the building
by the owner or tenant is not in itself conclusive evidence that the end of the
work has been reached 29; the end of the work occurs only when all or sub-
stantially all the work has been accomplished3 0, and the end of the work has
been held to have been reached even though other work was subsequently
carried out only where the circumstances were somewhat special, e.g. the
additional work was very minor or did not form part of the work contracted
for 31; and where the work is abandoned, the end of the work occurs on the
date of abandonment3 2, but where the work is merely suspended, the delays
for exercising the privilege run only from the date of final completion”3 , with
“SBillet v. Loranger, [1945] S.C. 160 (Forest, J.).
29Marler, The Law of Real Property, p. 357; Demers, Traiti d Droit Civil dii
orAec, XIV, p. 174;
Walter S. Johnson Q.C., “The ‘End of the Work’ ” (1951), 11 Rev. du B. 245, at 247ff; Giroux, Le
Privilige Ouzrier, p. 300; La Bawque Jacques-Cartier v. Picard (1900), 18 S.C. 502 (Langelier, J.);
Quintal v. Bhnard (1901), 20 S.C. 199 (Langelier, J.); Letelier de Saint-Jlwt v. Blanchete (1912), 21
K.B. 1; The Brunswick Balke Collender Company v. Racette (1916), 49 S.C. 50 (Court of Review); J. L.
Vachon & Fils, Lie v. Coreil (1929), 35 R.L.n.s. 453 (Walsh, J.); Ctwmission des Ecoles Catheliqous
de Montrial v. Canada Iron Works Co. (1935), 58 K.B. 565 at 570ff; Kirallah v. Gagnon (1936), 61 K.B.
264; La Perrelle Lumber Co. Ltd. v. Langlois (1939), 77 S.C. 1 (Pratte, J.);Jubirville v. Dagmais, [1942]
S.C. 475 (Loranger, J.); Asconi Building Corporation v. Creswell-Portroy Ltd., [1942] K.B. 718, at 720
and 722.
3oa Banque Jacques-Cartier v. Picard (1900), 18 S.C. 502 (Langelier, J.); Qaintal v. Bluard (1901),
20 S.C. 199 (Langelier, J.); The Brunswick Balke Collender Company V. Racette (1916), 49 S.C. 50 (Court
of Review); Blouin a. Dame Martine u(1925), 63 S.C. 73 (Lecellier, J.); J. L. VFachon & Fils, Lte
v. Corkil (1929), 35 R.L.n.s. 453 (Walsh, J.); Commission des Ecoles Catholiques de Motral4 v. Canada
Iron Works Co. (1935), 58 K.B. 565 at 570ff; Kirallah v. Gagnon (1936), 61 K.B. 264.
“1Desbiens v. Vilandre (1923), 61 S.C. 124 (Sir Franois Lemieux, C.J.); Pafoon v. BeAachamp (1931),
69 S.C. 139 (Philippe Demers, J.); Sclndtt United Propertie (Lad.) v. Germain (1932), 53 K.B. 386;
Alppi v. Hamel (1939), 66 K.B. 448; Lio Perault Ltle v. Easterrok, [1943) S.C. 79 (Mackinnon, J.).
12L&o Perrault Limite v. Bramit, [1957] Q.B. 827; Rochon v. Garnea (1935), 73 S.C. 5 (Chase-Casgrain,
J.); Blais v. Blais, [1958] S.C. 715 (Marier, J.); Dorval v. Plante, [1951] S.C. 359 (Casgrain, J.); there
is also Cook v. Archibald (1920), 29 K.B. 364, which was confirmed on different grounds by the Supreme
Court, under the name of Archibald v. Maher (1920), 61 S.C.R. 465-however, see the remarks made
in Leo Perrault Limitle v. Brault (supra) concerning the reasoning of the Supreme Court, and see also
Walter Johnson, “The ‘End of the Work’ ” (supra) at pp. 256-257. There is as well the borderline
decision of Billet v. Loranger, [1945] S.C. 160 (Forest, J.). See the discussion by Giroux, Le Prcillge
Ouier, pp. 309ff.
33In re: Leblanc, [1960] Q.B. 661; Provost v. Dinardo, [1946] S.C. 477 (Mackinnon, J.); Jobinvilh v.
Dagenais, [1942] S.C. 475 (Loranger,.J.); Kirallah v. Gagnon (supra); there is also the borderline
decision ofJ. L. Vachon & Fils, Lte v. Corleil (1929), 35 R.L.n.s. 453 (Walsh, J.).
No. 31
PRIVILEGES OF THE BUILDER
the additional fact of the owner going into bankruptcy not constituting in
itself conclusive evidence of an abandonment”. There is, however, one problem
still not entirely settled, and that is as to whether the end of the work occurs
only on the completion of the whole building or following each stage of
construction. In other words, where a workman has been employed only on
the building of the foundations, does the end of the work occur for him on the
completion of the foundation or of the building as a whole? In Vezio v. Lessard ,
Mr. Justice Duclos held that in the erection of a building there are several
constructions, that of the walls, of the roof and so forth, and that when, for
example, the construction of the foundations is completed, the end of the work
has occurred, as they have become ready for the use for which they are intended,
namely to receive the walls. The workman who was suing consequently lost
his privilege by reason of not having taken action within thirty days after
the foundations had been finished. The writer feels that this is an untenable
position based on an excessively” narrow interpretation of the phrase “. . .the
date at which the construction is ready for the use for which it is intended”.
Surely the Legislature was contemplating the use for which the completed
building was intended. A number of strong judgments”6 have put Ve'(io v.
Lessard into a minority position. However, certain remarks of the Court of
Appeal in Asconi Building Corporation v. Creswell-Ponerovy Ltd.3 7 disclose that a
certain danger still exists of this theory rearing its head again. Moreover, the
danger is made the greater by the fact that Demers in the Trait6 du Droit Civil
du Qu’bec35 simply reiterates the holding in Ve;io v. Lessard and the remarks in
Asconi Building Corporation v. Creswell-Pomeroy Ltd. In view of the foregoing, it
is submitted that the Code should be amended so as to make it clear that the
end of the work will occur only when the construction in its entirety is ready
for the use for which it is intended.
Where the supplier of materials contracts with the builder (i.e. a general
contractor), instead of with the owner himself, he must notif-
the owner of
his contract with the builder for the delivery of materials, and he will only
have a privilege as regards the materials delivered after the giving of notice,
31In re: Leblanc (supra); Re: Legoult (1939), 67 K.B. 345; and see also Walter Johnson, “The ‘End
of the Work’ – (supra) at pp. 257-258. Contra: Demers, Traite Cie Droit Ciril da Quibec, XIV, p. 175.
-3(1926), 64 S.C. 298; this judgment was commented on by Oscar Desaurels in “‘Etude sur la loi
des Privilkges” (1927-28), 30 R. du N. 144 at 151ff.
2See especially Rajrmon,l r. Tremblay, [1955) R.P. 399 (Challies, J.) and Ficard ‘. Rome, [1959;
S.C. 23 (Brossard, J.) together vith a comment on the latter judgment by Hubert S~n&al, (1959-60),
6 McGill L.J. 131.
37[1942] K.B. 718; see the criticism of this judgment by Walter S. Johnson, Q.C. in “The ‘End
of the Work’ ” (1951), 11 Rev. du B. 245 at 253-255.
38XIV, pp. 174-175.
McGILL LAW JOURNAL
[Vol. 8
so that if he gives no notice, he will have no privilege (article 2013e). This
article stipulates that such notice must be in writing. This makes it compar-
atively easy to establish whether the owner was notified or not, and whethcr
the terms of the notice were adequate.
The sub-contractor is in a position similar to the supplier of materials-he
too must give notice to the owner where he has been engaged by the general
contractor (article 2013f). Probably through legislative oversight, however,
the form of the notice is not specified. Consequently the notice need not be
in writing. If a verbal notice was given, its proof will depend on the applica-
tion of the complex general rules of evidence. If the owner does not actually
admit having received the notice, there might at least be a commencement of
proof in writing opening the door to testimony on the part of the sub-contractor.
But in the absence of an admission and of a commencement of proof in writing
and where the amount in question exceeds fifty dollars (which it is almost sure
to), the only other ground on which the sub-contractor could use testimony
would be if the matter were commercial for the owner (article 1233, para. 1).
Here the sub-contractor will run up against the well-known general principle
that immoveables cannot be the objects of commercial contracts3 . An excep-
tion to this rule is that a contract affecting an immoveable will be commercial
where the owner of a commercial enterprise (e.g. a store) engages a builder to
enlarge his store for the purpose of furthering his business4″. Consequently,
where the sub-contractor is working on a house, he will be out of luck; he will
only be able to testify that he has given notice if the matter happens to be
commercial for the owner41. From the foregoing, it will be seen that the sub-
contractor’s right to prove that a verbal notice has been given will depend on
varying factors which detract from the consistency and relative certainty that
would exist if a written notice were required. It is, therefore, submitted that
article 2013f should be amended so as to provide for the notice by the sub-
contractor to be in writing.
There is a certain anomaly in the jurisprudence as to the obligation of the
supplier of materials and the sub-contractor to advise the owner in the notice of
the price of the materials or the sub-contract. In either case the owner may
retain out of the contract price a sufficient amount to cover the claims (article
‘5 Perrault, Traiti de Droit Commercial, Volume I, p. 327.
4″Blais v. Paradis (1933), 54 K.B. 495.
‘1 The following are judgments on the question of the admissability of testimony to establish that
a verbal notice has been given: Richman v. The Seni Constructin Co. LWi. (1929), 67 S.C. 400 (Archer,
J.), also reported at (1929), 35 R. deJ. 193; Billet v. Loranger, [1945] S.C. 160 (Forest, J.); Belisle v.
Rierdeau, [1950] S.C. 39 (Duranleau, J.) and see brief write up of this case in (1949-50), 52 R. du N.
452; Norio v. Better Homes Builders Ltd., [1960] S.C. 224 (Andr6 Demers, J.); Renaud v. Roudsel, [1961]
R.P. 384 (Ste. Marie, J.).
No. 3]
PRIVILEGES OF THE BUILDER
2013e and 20130. However, while article 2013f sets forth a procedure (by
reference to article 2013d) whereby the owner may ascertain a suitable amount
to be retained (to protect himself against the sub-contractor’s claim) (by means
of the sworn certificate of an architect or engineer) article 2013e does not provide
for any such procedure in the case of the supplier of materials. Despite this, it
has been held that the sub-contractor’s notice must indicate the nature of the
sub-contract and the price for which it is being carried out so as to enable the
owner to ascertain the amount he should retain firom the contract price4″;
whereas on the other hand it has been held that the supplier’s notice need not
mention the price of the materials nor indicate to the owner the amount which
he should retain.41 Thus in the case of the supplier of materials, not only does
the supplier not have to state the price of materials, but there is no procedure
for their value to be fixed by an architect or engineer. How is the owner to
know what amount he should retain?
It is submitted that the foregoing gives rise to the need for amendment.
Should this amendment be to the effect that the notice must mention the value
and price of the materials or set up a procedure for an architect or engineer to
give a certificate of evaluation? The former would appear preferable –
it
would be simpler, and the price of materials is easier to establish than the
value of a workman’s labour and of a sub-contractor’s work.
*
*g
*
While this is not the place for a detailed examination of the nature and
effect of resolutory clauses in deeds of sale and of dation en paiement clauies
in deeds of loan and of the problems posed by the same, an article on the
desirability of amending the Code in relation to the construction privileges
would be incomplete if the effect on these privileges of the exercise of these
clauses were not pointed out.
A contractor erects a building for Jones, the owner of the property. He does
so on the comfortable assumption that if Jones does not pay him he will have a
privilege on the property which will secure his claim.
If the contractor is
informed that a balance of price is owing by Jones to his vendor, he will logically
answer that his privilege will rank before that of the vendor (article 2009).
If he is told that Jones has borrowed money and that the loan is secured by a
hypothec on the property, the contractor will rightly point out that there is
strong authority to the effect that as regards the increased value he has brought
“Hamelin v. Pcrron (1941’, 79 S.C. 418 (Archarnbault, J.); Renaud v. Roussel, [1961] R.P. 384 (Ste.
Marie, J.); Demers, Traiti de Droit Civil du Quibec, XIV, p. 191.
43Papillon v. Birubl, [1946] K.B. 310; Morissett v. Pichete, [19551 S.C. 231 (Choquctte, J.); Faille
v. Lefranfois (1927), 33 R.L.n.s. 100 (Trahan, J.); Depers, Traite de Droit Civil d Qu hec, XIV, p.
186. Contra: Millen et Frcre Lthe v. Rene (1940), 78 S.C. 534 (Chase-Casgrain, J.).
McGILL LAW JOURNAL
[Vol. 8
about to the property his privilege will rank before that of the hypothecary
creditor even though the hypothec mayhave been registered before the privilege44 .
What a shock may come to the unfortunate contractor! Jones runs out of
funds and fails to pay the contractor, who then registers his privilege within
thirty days after the end of the work. Jones also fails to meet the payments
due to his vendor or the hypothecary creditor, as the case may be, and one of
these now strikes with the aid of the resolutory clause (in the sale) or of the
dation en paiement clause (in the loan). What happens? The vendor or
hypothecary creditor rebecomes/becomes
the owner of the property retro-
actively to the date of the sale/loan, free and clear of the contractor’s privilege
by reason of the stipulation in the clause providing that the property shall be
free of all privileges and other encumbrances. And all this without regard to
what may be owing to the vendor/lender – hence if the balance owing is
only $5,000, be will nonetheless get clear title to a property worth $100,000
of which the contractor may have contributed $75,000 through the erection of
a building, leaving the contractor with only a personal claim against the
insolvent owner. Highway robbery! And yet the contractor will not have any
right to claim from the vendor/lender on the basis of unjust enrichment, which
recourse does not lie where the enrichment has been caused by a clause in the
contract between the owner and the vendor/lender”. Not everyone agrees that
these clauses are valid or desirable insofar as they extinguish the builder’s
privileges46. Demers, for his part, gives the advantage to agile lawyers by
taking both sides of the question in one book47 without making any cross-
references:
(page 157-158) La. jurisprudence a cu souvent i &udier Ic cas oil un immeuble est vcndu a
une personne qui par ]a suite fait des amiliorations pour lesquclles les fournisseurs dc mati-
tiaux ou les constructeurs enregistrent un privil’gc. Qu’advient-il alors de ces privilees?
Subsistent-ils ou Ics voit-on tomber tout simplement? La Cour suFprieure avair prononce en
faveur du maintien duprivilkge (1934 C.S. Lamoureux v. Robert, 41 R.J. 29.) cc 1’ann& sui-
vante la Cour du Banc du Roi d&ida Ic contrairc (1935 B.R. Vachon v. Deschanes, 59 B.R. 193).
Plus tard la Cour su &icure revint a la charge en maintenant le privilkge (1936 C.S. Gowan
v. Laftire Lt&e, 43 R.L. 190) et il semble, pour les raisons donn6es dans cc jugement, que c’est
cettc derniare dbcision qui cst la plus juste. En effet, dit le jugement, il est injuste que cclui
44Article 2013 C.C.; Marler, The Law of Real Property, pp. 342, 376 and 377; Giroux, Le Privilge
Ouvrier, pp. 34, 37, 46 and 407-408; “Des Priviliges cc des Hypothaques” by Philippe Demers, J.,
Journes du Droir Civil Frangais, p. 527; ‘Etudc sur la loi des priviliges” by Oscar Desautels, (1927-
28), 30 R. du N. 144 at 145; La Perrelle Lumber Co. Ltd. v. Langlois (1939), 77 S.C. 1 (Pratte, J.) (where
the hypothec was registered on May 2, the end of the work occurred on July 16 and the privilege
was registered on August 6); Supertest Petroleum Corporation Ltd. v. Jacques-Cartier Atomobiley Inc.,
[1960] S.C. 329 (Edge, J.), together with the case comment thereon by Roger Comrtois, (1960-61),
63 R. du N. 109 (but it should be noted that the judgment is presently under appeal).
45Reference should be made to Challics, J., The doctrine of unjustified enrichment in the law of the
Province of Quebec, 2nd edition, pp. 104-108, and to Andr6 Morel, L’I’olution de la doctrine de l’enri-
chissement sons cause, pp. 104-107.
4 Marler, The Law of Real Property, pp. 365-366; Faribault, Traiti de Droit Ciril du Qulbec, XI, pp.
‘De la clause dite ‘dation en paiement’ dans les contrats de prats hypo-
345-346 and 525; Bergeron,
thcaires” (1960) 4 Cahiers de Droit, page 5.
47Traiti de Droit Civil du Quebec, XIV.
No. 3]
PRIVILEGES OF THE BUILDER
qui reprend sa proprigt6 profite de la plus-value donnc 1 son immeuble sians encourir de res-
ponsabilitL D’autant plus que le jugemcnt de la Cour du Banc du Roi daus la cause de Vachon
1′. Desckesnes a souvent reu une fausse interpretation; le contrat de vente qui y est discut6
contenait certaines conditions de resolutions qui concernaient spEcialement les amEliorations,
et comme l’acte &tait enregistr6, la Cour du Banc du Roi lui a donn6 un caract~re public qui
rempla~ait l’avis et la connaissance du fournisseur.
(page 169) . .. la rhsolution de vente (1934 C.S. Dussault v. Grenier, 72 C.S. 138; 1936
C.S. Gowan v. Lafitte Lte, 43 R.L. 190; Contra: 1939 C.S. Lanthier v. Rink 78 C.S. 20; 1935
B.R. Vachon v. Desch~nes, 59 B.R. 193), ne le (the privilege) fait pas disparairre, autrement
on violerait le principe de justice qui d6fend a quiconque de s’enrichir sans cause aux d~pens
d’autrui.
(page 185) . . .s’il s’agit d’une vente avec clause r~solutoire et que la vente soit annul&e
en vertu de cette clause, l’annulation fait disparaitre le privilege du fournisseur (1939 C.S.
Lanthier v. Rink, 78 S.C. 70).
(page 189) . .. Ic constructeur ne perdra pas son privil~ge sous prztexte que la propri&t
est retourn6e entre les mains du vendeur en vertu d’une clause r6solutoire faute de paiement.
Le vendeur ne peut s’enrichir sans cause aux d~pens du constructeur (1933 B.R. DechZne v.
Rochon, 56 B.R. 160; 1934 C.S. Dussault v. Grenier, 72 C.S. 138; 1899 C.R. Latour v. L’Heureux,
16 C.S. 485).
(page 237) La clause r~solutoire contenue au titre d’acquisiticn ne rendra pas le d-biteur
incapable de consentir une hypothaque, mais si plus tard la vente est annul&e en vcrtu de cette
clause r~solutoire, les hypothques consenties entre la vente et son annulation tomberont et
seront purges. (1937 B.R. Krukowsky v. Par6, 63 B.R. 126; 1939 C.S. Pilon v. Amiot, 42
R.P. 340.-Tout comme nous avons vu que le privilge du fournisseur de mat~riaux 6tait
purgE par l’annulation de ]a vente en vertu de la clause r~solutoirc: 1939 C.S. Lanthier v. Rink,
78 C.S. 70. 1935 B.R. Vachon v. Deschesnes, 59 B.R. 193.-1936 B.R. St. Pierre v. Lefcbvre,
61 B.R. 168. Contra 1934 C.S. Lamoureux v. Robert, 41 R.J. 29).
No one will quarrel with the hypothecary lender or with the seller to whom
a balance of price is owing that he is entitled to security adequate to ensure
payment. Surely the hypothec or vendor’s privilege above is designed by the
law to constitute in itself sufficient security –
this is reflected in the fact that
the builder’s privilege may only be exercised against the additional value which
his work or materials have given the property, thus leaving unaffected that
part of the value of the property affected by the hypothec or vendor’s privilege.
To this it might be objected that where the loan is being made for construction
purposes, i.e. the borrower needs the money in order to build, the privileges
will affect the whole of the value of the building and will rank entirely before
the hypothec of the lender. To this the answer would be in the maxim:
IVigilantibus non dormientibus juvat lex. The lender should not advance the
proceeds of his loan until the construction is well under way, because should the
building remain uncompleted the lender will in any event have virtually no
security. He should also make sure that the accounts of the architect,
contractors, sub-contractors, suppliers of materials and workmen are being paid
and/or they have waived their privileges. In this way, the lender will have
proper security on the house as originally constructed.
Even were it to be granted, however, that the lender should have the
additional security of the dation en paiement clause (or the vendor of the
resolutory clause), surely the exercise of such right should be subjected to the
builder’s privilege, for while technically speaking the builder’s claim against
the owner will not fall into the category of unjust enrichment on a technical
basis, it certainly constitutes an unjust enrichment in the larger sense.
McGILL LAW JOURNAL
[Vol. 8
The Courts in the majority of the reported cases have maintained the
exercise of the resolutory and dation en paiement clauses 45 . The justification
for depriving the builder of his privilege is that he should have conducted a
search at the registry office before undertaking the work. As the law now
stands this would indeed be a wise precaution. However, it would add con-
siderably to the contractor’s costs to arrange for the title examination, and it
would be no answer to this objection to suggest that such examinations be
limited to the instances where large contracts are involved, for a small contract
is just as important to the small contractor as a large one is to a big contractor.
It is therefore submitted that the Code be amended so as to provide that
where a resolutory clause or a dation en paiement clause is exercised, it be
subject to the builder’s privilege.
One final plea! The Civil Code represents one of the finest and most valuable
parts of our Province’s heritage. Its original provisions stand out for the beauty
of their drafting. The same may not, alas! be said for all the amending pro-
visions. While the articles on the builder’s privileges may, as a result of their
numerous changes, meet most of the requirements in this field, they do not
attain the standard of true civil law drafting as is found in the Code as
originally drafted. Instead of setting down principles to be interpreted and
applied by the courts, they are a poorly drafted attempt at detailed regulation.
A heavy responsibility lies on the shoulders of those whose task will be
the revision of our Civil Code, not only to bring the same up to date with
modern conditions, but also to transform the vile-looking amendments that
have been made in the long intervening years since 1866 into a style befitting
that of the original codifiers.
48As to the resolutory clauses: Latour v. L’Heureux (1899), 16 S.C. 485 (Court of Review); Provost
v. Paquin (1913), 44 S.C. 511 (Court of Review); Vachon v. Deschenes (1935), 59 K.B. 193; Lanthier
v. Rink (1940), 78 S.C. 70 (McDougall, J.). Contra: Dussamlt v. Grenier(1934), 72 S.C. 138 (Bouffard,
J.), but see the critical comment by Henri Turgeon, (1934-35), 37 R. du N., 540; Lamoareex v. Robert
(1935), 41 R. dc J. 29 (Trahan, J.); Gowan v. Laffitte Limitle (1937), 43 R.L.n.s. 190 (Chase-Casgrain,
J.); Barbeas v. Chalifour (1926), 41 K.B. 536. See also the general cases of Krakm.jky v. Part (1937),
63 K.B. 126; Pilon v. Amiot (1939), 42 R.P. 340 (Forest, J.); Perras v. Godin, [1956] Q.B. 871; Sharpe
v. Purity Flour Mills Ltd., [1959] Q.B. 633; Dansereau v. Boirsy, [1955 S.C. 385 (Brossard, J.); Char-
bonneau v. Doucet, [1958] R.L. 186 (Brossard, J.); Fortier v. Roy, [1957] Q.B. 664; Vol Morin Mtixai
Ledge Inc. v. Laperle, [1961] Q.B. 410 and comment thereon by Roger Comntois, (1961), 21 Rev. du
B. 530. As to dation en paiement clauses: G. A. Brown Inc. v. Dame Allan, (1953] S.C. 349 (Lalonde,
J.); Dame Dumbry v. Dame Moquin, [1959] S.C. 184 (Privost, J.) and see the comment by Roger
Comtois, (1959-60), 62 R. du N., 165. See also the general cases of Plouffe et Cie Ltle v. Aubin (1931),
50 K.B. 280; Goldsmith v. Montreal Motor Transport (1934), 72 S.C. 277 (Mackinnon, J.); Decari v.
Dame Decarie (1922), 60 S.C. 143 (Mercier, J.); In re: Michelin (1958-59), 37 C.B.R. 101 (Montpetit,
J.) and see the comment thereon by Roger Comtois, (1958-59), 61 R. du N. 224; In re: Beauchatd
Construction Inc., [1961] S.C. 145 (Brossard, J.); In re: Frank Ireland, unreported judgment of Mr.
Justice Bernier, S.C.Q. 6791-F (1961); Dame Goulet v. Coco Island Inc., [1961] S.C. 402 (Ferland, J.);
Cdte v. La Caise Populaire de Montmorncy Village, [1958] S.C.R. 121; Alarie v. Credit Mauricien Inc.,
(1956] Q.B. 693; Thibeault v. Dame Lafaill, [1951] S.C. 188 (Lalonde, J.).
THE REGULATION OF ACTIVITIES IN EXTRA-AERONAUTICAL
SPACE, AND SOME RELATED PROBLEMS
Ren6 H. Mankiewicz*
Introduction
Space and pre-space law
The time has finally come to put an end to the interesting, but purposeless
discussion of the question whether and in what manner existing legal rules,
particularly those regarding sovereignty over airspace, apply or whether they
may be construed in such a manner as to make them apply to the status and
legal regime of extra-aeronautical space. It is gratifying to note that speakers
at the Fourth Colloquium on the Law of Outer Space, held at Washington in
October 1961, were less concerned with finding out where the outer limit of
airspace lies under the present law, and concentrated instead on the more
practical problem of where actually to draw the lower limit of extra-aeronautical
space which, it seems now agreed, is not subject to the sovereignty or juris-
diction of the underlying State. On the other hand, it is urgent indeed to
develop and to agree on the rules to govern the steadily expanding and
increasingly daring space activities.’
Space activities have presented humanity with a “novel case”. Hence, it is
useless to attempt to base the legal regime of outer space on the traditional law
of nations or on the existing rules of international air and maritime law.2
Like any “case of first impression”, a legal system for outer space, including its
geographical scope, will be established by decisions of an essentially political
character, even though some attempt will be made to vest these decisions with
a semblance of legal respectability by the use of such juridical alibis as
restrictive, extensive, literal or historic construction of existing rules, analogy
*The author is a member of the Legal Bureau, International Civil Aviation Organization, Montreal.
The views expressed in this article are, however, purely personal.
‘Writings on this subject have become so abundant that even a select bibliography becomes
unwieldy. An important selection of papers and a comprehensive bibliography have been published
in March 1961 by the Legislative Reference Service of the Library of Congress, Washington, under
the title: “Legal Problems of Space Exploration – A Symposium,” for the use of the Committee
on Aeronautical and Space Sciences of the United States Senate – Senate Document No. 26, 87th
Congress, 1st Session.
5 rhe question of the bearing of article I of the Chicago Convention on the legal status of outer
space has been authoritatively discussed in many publications and statements by J. C. Cooper. See in
particular: “Legal Problems of Upper Space” (1956) Journal of Air Law and Commerce, p. 308;
Proceedings of the American Society of International Law (1956), p. 84; “High Altitude Flight and
National Sovereignty” (1951) International Law Quarterly, p. 411; Hearings of the Select Committee
on Astronautics (Washington, 1958), p. 1277; set also my comments in Annuaire frangais de droit
international (1959), p. 129 and p. 149 ct seq., and E. Pepin, “The Legal Status of the Air Space in the
Light of Progress” in Aviation and Astronautics, (Publication No. 2 of the Institute of International
Air Law, Montreal, 1957).
