McGill Law Journal ~ Revue de droit de McGill
UNAUTHORIZED DISPOSITIONS OF TRUST PROPERTY:
TRACING IN QUEBEC LAW
Lionel Smith*
The trustee of a Quebec trust is an admin-
istrator of the property of others, with full ad-
ministration. As such, he holds a wide range of
powers over the trust property; typically, his
powers will exceed his authority, in the sense
that it will be possible for him to make unlawful
dispositions of the trust property. In such a
case, he will be liable of course, but sometimes,
particularly if the trustee is insolvent or absent,
it will be important to understand the effects of
the unauthorized dispositions on the trust
property. For example, it may be possible for
beneficiaries or other interested parties to an-
nul a disposition of trust property; in this way,
the property may be restored to the trust pat-
rimony. Somewhat more difficult is the case in
which the trustee has improperly disposed of
trust property in exchange for some other prop-
erty, in an attempt to misappropriate trust as-
sets and turn them to his own benefit. If it is
not possible to annul the disposition, might it be
possible to claim that the proceeds of this unau-
thorized disposition are themselves held in
trust? This paper examines the extent to which
the idea of real subrogation can be used to pro-
tect the trust patrimony. Although the Supreme
Court of Canada has suggested that Quebec law
does not have a general principle of real subro-
gation, the author argues that this principle has
a role to play in protecting universalities of law
and that it can appropriately be invoked in the
context of unauthorized dispositions of trust
property.
Le fiduciaire dune fiducie qubcoise est
un administrateur du bien dautrui, charg de
la pleine administration. ce titre, il est dot
dun vaste ventail de pouvoirs sur les biens en
fiducie; il est pourtant possible que le fiduciaire
fasse des dispositions illgales des biens en fi-
ducie et outrepasse ses pouvoirs. Il engagera
alors sa responsabilit personnelle, mais dans
les cas o le fiduciaire est insolvable ou absent,
il peut tre important de connaitre galement
les effets de ces dispositions non autorises sur
les biens en fiducie. Par exemple, les bnfi-
ciaires ou toutes autres parties intresses peu-
vent faire annuler une disposition illgale; de
cette faon, les biens sont remis dans le patri-
moine fiduciaire. Par contre, si le fiduciaire a
dispos dun bien en fiducie en change dun
autre bien, dans le but de semparer des biens
en fiducie et den profiter personnellement, la
situation devient plus complexe. Sil nest pas
possible dannuler la disposition, est-il possible
de prtendre que le produit de cette disposition
non autorise entre lui-mme dans le patri-
moine fiduciaire? Ce texte examine comment la
subrogation relle peut tre utilise pour prot-
ger le patrimoine fiduciaire. Bien que la Cour
suprme du Canada ait suggr que le droit
qubcois ne connat pas de principe gnral de
subrogation relle, lauteur soutient que la no-
tion a un rle jouer dans la protection des
universalits de droit, et quelle peut justement
tre mise en uvre dans le contexte des disposi-
tions non autorises des biens en fiducie.
* James McGill Professor of Law and Director, Paul-Andr Crpeau Centre for Private
and Comparative Law. I thank Alexandra Popovici for her valuable comments and Car-
oline Cassagnabre for her assistance with research in French law.
Citation: (2013) 58:4 McGill LJ 795 ~ Rfrence : (2013) 58 : 4 RD McGill 795
Lionel Smith 2013
796 (2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
Recovery of Original Property
Recovery of Proceeds
III. Real Subrogation
A. Definition and Examples
B. Kinds of Real Subrogation
C. Real Subrogation and the Quebec Trust
Patrimony
797
798
800
802
802
803
805
Conclusion
809
UNAUTHORIZED DISPOSITIONS OF TRUST PROPERTY 797
Introduction
The coming into force of the Civil Code of Qubec (CCQ) brought with
it a wholly renewed trust institution. Given that robust protection for
beneficiaries is an important aspect of any law of trusts, one aspect of the
new regime that attracted some initial commentary was whether the
Quebec trust could admit of a form of tracing. John Brierley argued that it
could, by the civilian technique of real subrogation.1 But very little has
been written since then, and there is no significant jurisprudence. This
paper seeks to explore some of these possibilities, albeit in a preliminary
way.
When a trust is managed well, there is usually little cause for com-
plaint. But a trust can be badly managed by a trustee in a whole range of
ways. This paper is concerned with one particular kind of mismanage-
ment: the unlawful disposition of trust assets. Typically, this involves an
attempt by a trustee to misappropriate the value held in trust, either for
his own benefit or for the benefit of someone else.
There are two distinct problems that must be addressed in this con-
text. One is the problem of trust assets improperly transferred to another
person: can they be recovered? The other is the problem of an asset that
has been improperly acquired by using trust assets: can those new assets
be treated as trust property?
There is a tendency to conflate these two issues, for example by treat-
ing them as variations on a single question: in light of what has happened
to the trust property, can it be recovered in whatever guise it bears now?
But they are juridically distinct possibilities. This can be illustrated by
considering a simple example. The trustee misappropriates $10,000 from
the trust and uses it to buy a car, registering himself as the owner. We
may be tempted to think merely in terms of a single question: can the
misappropriated property be traced? But there are two distinct possibili-
ties in this scenario. One is to argue that the $10,000, even though it has
been paid to another person, is recoverable as property that still belongs
to the trust. The other is to argue that the car, having been acquired with
trust property, is itself trust property. Not only are they distinct, they are
probably theoretically inconsistent with each other; on ne peut pas avoir le
beurre et largent du beurre.
1 John EC Brierley, The New Quebec Law of Trusts: The Adaptation of Common Law
Thought to Civil Law Concepts in H Patrick Glenn, ed, Droit qubcois et droit
franais : Communaut, autonomie, concordance (Cowansville, Que: Yvon Blais, 1993)
383 at 390-92. See also John B Claxton, Studies on the Quebec Law of Trust (Toronto:
Thomson Carswell, 2005) at paras 1.70-71, 17.14-15.
(2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
798
When we are following original assets into different hands and trying
to recover them, we may call this following.2 When we are attempting to
lay claim to assets that have never been trust assets, on the basis that they
were acquired with trust assets, we are doing something different. In this
paper, this is what is meant by a claim that is based on the process of
tracing.3
The focus in this paper is on trusts. However, if tracing is available in
the context of misappropriated trust property, it is quite possible that the
same technique could operate in other contexts; for example, where a
mandatary misuses property belonging to the mandator, or an adminis-
trator of the property of a natural person misuses property under admin-
istration.
I. Recovery of Original Property
The main technique for recovering trust property that has been im-
properly disposed of will be via the annulment of the relevant disposition.
If the trustee were simply to give trust property away, for example, to
a family member, the donation would clearly be null. The reason is that,
except in very limited circumstances, an administrator of the property of
others has no power to make gifts of the property being administered.4
Although the CCQ is not entirely clear, this appears to be a relative nulli-
ty.5
Once the donation is annulled, the general conclusion is that the own-
ership of the property in question will return to the trust patrimony.6 The
regime of restitution of prestations will apply.7 One interesting question is
that of who can demand annulment of such a juridical act. This standing
belongs to the person in whose interest the nullity is established;8 nor-
mally, this means a person who was party to the juridical act in question.
2 Hence, when a person with a real right seeks to assert that right even though the thing
is in the hands of a new person, we speak of the persons right to follow or droit de
suite.
3 Quebec cases suggest that the French terminology for the process of tracing may be re-
traage: see e.g. Fonds Norbourg Placements quilibrs (Liquidation de), 2006 QCCS
4072, [2006] RJQ 1848, affd 2007 QCCA 1076, [2007] RJQ 1890; Bouloud (Syndic de),
2010 QCCS 4840, [2010] RJQ 2478.
4 See arts 1307 a contrario, 1315 CCQ.
5 See Madeleine Cantin Cumyn, Ladministration du bien dautrui (Cowansville, Que:
Yvon Blais, 2000) at paras 341, 349 [Cantin Cumyn, Ladministration du bien].
6 See art 1422 CCQ.
7 See arts 1699-707 CCQ. See also Brierley, supra note 1 at 395.
8 Art 1420 CCQ.
UNAUTHORIZED DISPOSITIONS OF TRUST PROPERTY 799
But in the case of the trust, the solution is more complicated. The benefi-
ciaries are not parties to the act that is null, but the nullity exists to pro-
tect them. It seems to follow that they are able to invoke it.9 It appears
that the nullity may also be invoked by those to whom the CCQ gives
powers of supervision over the trust.10
Let us take a slightly more difficult case: not a donation, but a sale.
Moreover, let us assume that the sale is made to the trustee: to use the
earlier example, the trustee misappropriates $10,000 from the trust and
uses it to buy a car. We may assume that the sale is unlawful, being ei-
ther contrary to the terms of the trust or made in breach of the trustees
duty of loyalty. Either of these conditions is enough to make the sale null,
in principle.11 But it is likely to be much harder to annul the sale, for a va-
riety of reasons. Of course, if the seller of the car was or should have been
aware of the trustees breach of trust, the sale can be annulled, and the
money can be recovered according to the regime for restitution of presta-
tions, with such a seller surely treated as one in bad faith. But the other
possibility is that the seller was in good faith and neither knew nor had
reason to know that the trustee had misappropriated trust property. In
this case, the seller will be protected by the law, because although the
trustee lacked or misused the power to enter into the sale, the third party
had no way to know this. The latters reliance, in good faith, on the ap-
pearance of regularity will afford him a defence to an action in nullity.12
9 See Cantin Cumyn, Ladministration du bien, supra note 5 at para 342. Cantin Cumyn
suggests that only beneficiaries with an existing interest, and not an eventual interest,
have standing: ibid n 973. Japanese law explicitly allows trust beneficiaries to annul
unauthorized juridical acts of the trustee, even though the beneficiary is not a party to
the act in question: Trust Act, Law No 108 of 2006, art 27 (Japan), online: Japanese
Law Translation
sponsored by the Japanese Ministry of Justice).
10 See arts 1287-92 CCQ; Cantin Cumyn, Ladministration du bien, supra note 5 at para
149. These persons include the settlor or his heirs, the beneficiaries, in some cases a cu-
rator or the Public Curator (see art 1289 CCQ), and for some purposes, any … interest-
ed person (see arts 1290-91 CCQ). One example of such an interested person might be
a successor trustee or co-trustee to the trustee whose juridical act is null. The supervi-
sory organ contemplated in article 1288 has not been created.
11 See Cantin Cumyn, Ladministration du bien, supra note 5 at para 329 (lack of power to
carry out the juridical act); ibid at para 331 (power exists but is used for an improper
purpose).
12 See ibid at paras 345-48. Cantin Cumyn notes that a great deal will turn on context:
ibid at para 348. For instance, if the trustee were the seller of immovable trust property,
then the land register would probably show him as owner of the land in his capacity of
trustee: see art 1278 CCQ. In this case, the buyer would not be able to say that he was
unaware of the trust, although he may still be able to show that he believed, in good
faith, that the trustee was acting lawfully. Apart from protection based on appearances,
there are of course other possible defences to an action in nullity, including prescription.
(2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
800
II. Recovery of Proceeds
This brings us, then, to the question of proceeds. In our example, if the
trustees purchase of the car cannot be annulled, is it still possible to
claim that the car itself is held in trust? There will, of course, be a claim
for compensation for any loss caused to the trust patrimony by the trus-
tees breach. But if, for example, the trustee is insolvent, this claim may
be worthless. It may be important, in such a case, to know whether the
car can be claimed as trust property. Another context in which this may
be important is one in which the acquired property has increased in value.
Assume that the trustees breach consisted of an unauthorized purchase
of securities or land or some other investment. It is possible that the value
of these purchased assets may be greater than the amount of trust money
that was unlawfully used to acquire them. In such a case, the trust bene-
ficiaries would be aided if the law permitted them to claim that the pro-
ceeds of an unauthorized disposition of trust property are themselves held
in trust.13
In the context of the Quebec trust, the question can be formulated in
terms of patrimonies. Let us return to the original example of the car pur-
chased with trust property. The question is whether the car (or, we might
better say, ownership of the car) is in the personal patrimony of the trus-
tee or rather is in the trust patrimony.
In an ordinary case, this question would be answered by an examina-
tion of the effects of the relevant juridical acts. In the Quebec law of sale,
ownership of a car is translated to the buyers patrimony by the effect of
the contract itself.14 It seems to follow that, since both the seller and the
buyer (the trustee) intended that the effect of the contract of sale would be
to transfer ownership of the car to the trustees personal patrimony, this
would indeed be the effect. Such a result may seem to follow even more
strongly if the property in question is such that there is a register or some
other documentary evidence of ownership. In our example of the car,
there is a vehicle registration. To take another example, if the property
acquired in breach of trust is a number of corporate shares, there will be a
shareholder register that indicates who holds the shares from time to
time.15 Similarly, if the property acquired by the trustee is an immovable,
13 The possibility of laying claim to traceable proceeds is quite developed in the common
law. For some discussion of these and other motivations for using this technique, see
Lionel D Smith, The Law of Tracing (Oxford: Clarendon Press, 1997) at 24-47 [Smith,
Tracing].
14 See art 1453 CCQ. The effect, however, may be delayed, as in an instalment sale: see
arts 1745-49 CCQ.
15 The shareholder register is is not necessarily determinative if the shares are held
through a securities intermediary. In this case, there will be other records showing the
UNAUTHORIZED DISPOSITIONS OF TRUST PROPERTY 801
there will be an entry in the land register. In all of these cases, if the trus-
tee is acting unlawfully and seeking to misappropriate the property, the
documentary evidence will not indicate that he holds the land in his ca-
pacity as trustee. It would seem to follow that the property in question is
in the personal patrimony of the trustee and not in the trust patrimony.
The same considerations can apply in relation to some kinds of intan-
gible property. If the property is a credit balance in a bank account, as
where the trustee misappropriates trust money and deposits it into his
own personal bank account, the account is a debt governed by a contract;
the debt is owed by the bank to the person with whom it has contracted.
Since the contract in this case is with the trustee in his personal capacity,
and all the documentation will reflect this, the conclusion would seem to
follow that the bank balance is in the trustees personal patrimony, not in
the trust patrimony.
In these cases, where there is some documentary evidence of the own-
ership of property, it is clear that if the trustee had been acting lawfully,
the relevant documents would reveal that the assets belonged to the trust
patrimony; they should mention the trustee as the holder of the relevant
property, while indicating that he is acting in his capacity as such.16 Does
it follow that, if the documents do not mention that the trustee is acting in
his capacity, the property in question must be in his personal patrimony?
I would argue that it does not follow. We are assuming that the trus-
tee has improperly purchased an asset using trust property, and that it
was the common intention of the transferor (who may or may not have
known about the trust) and of the trustee that the trustee should become
the owner of the asset. The question under consideration is whether such
an asset does indeed fall into the personal patrimony of the trustee, on the
basis of this common intention; or, on the contrary, whether the law can
override their intention, and reach the conclusion the asset instead falls
into the trust patrimony, on the ground that the asset was acquired with
property improperly taken from the trust patrimony.
If the law can override their intention in this way, then it must be
possible whether or not there is any documentary evidence of ownership
of the asset. In relation to many kinds of propertyfor example, gold bul-
lion or a paintingthere will be no such documentary evidence. But even
where such documentation exists, it is only accurate insofar as it reflects
the legal position. If the parties intention is not always determinative of
ownership, it would simply follow that in such a case, the ownership doc-
security entitlements: see An Act respecting the transfer of securities and the establish-
ment of security entitlements, RSQ c T-11.002, s 103(1).
16 See art 1278 CCQ.
(2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
802
umentation was inaccurate, just as it may be in cases involving mistaken
or fraudulent transfers of property.
III. Real Subrogation
A. Definition and Examples
What is the legal technique that may be capable of overriding the
common intention of the seller and the trustee, thereby allowing us to
draw the conclusion that the purchased asset falls into the trust patrimo-
ny? The most relevant possibility is real subrogation. This technique, or
doctrine, can be defined as the [r]eplacement of … property for other
property in a juridical relationship.17 As in French law, there are some
specific codal provisions that provide in different ways for real subroga-
tion.
For example, articles 450451 of the CCQ set out what is the private
property of a spouse, in the matrimonial regime called the partnership of
acquests. Private property is excluded from division when the regime
comes to an end. The CCQ provides that private property includes both
property that is acquired to replace private property and property that is
acquired with private property.18
Another example is seen in the provisions on the substitution, which
exists where a person receives property by a liberality with the obligation
of delivering it over to a third person after a certain period.19 The first
person is called the institute, and the other is called the substitute; the
CCQ provides that the institute is the owner of the substituted property,
which forms, within his personal patrimony, a separate patrimony in-
tended for the substitute.20 At the opening of the substitution, when
ownership passes to the substitute, the institute must deliver the relevant
property to the substitute; and the CCQ provides that [w]here the substi-
17 F Allard et al, eds, Private Law Dictionary and Bilingual Lexicons: Property
(Cowansville, Que: Yvon Blais, 2012) sub verbo subrogation. In the same sense, see
Encyclopdie juridique Dalloz : Rpertoire de droit civil, looseleaf consulted on 23 March
2013, Subrogation relle by ric Savaux, No 1.
18 See arts 450(3), 451 CCQ. Article 451 goes into more detail on the outcome in situations
where property is acquired partly with private property and partly with other property.
See also art 457 CCQ.
19 Art 1218 CCQ.
20 Art 1223 CCQ.
UNAUTHORIZED DISPOSITIONS OF TRUST PROPERTY 803
tuted property is no longer in kind, the institute delivers over whatever
has been acquired through reinvestment.21
As a final example, real subrogation may apply in the case of a hy-
pothec. Where a creditor holds a hypothec on a universality or on an indi-
vidual thing, the hypothec can extend to property that replaces the origi-
nal property, if the latter has been alienated.22 In the case of a hypothec
on an individual thing, if there is no replacement, the hypothec can ex-
tend to property acquired with the original thing.23
There are, therefore, a number of codal examples of real subrogation,
often using the language of replacement, reinvestment, acquired
with, or of proceeds. As in French law, these discrete examples create
the following difficulty: do these provisions illustrate a more general prin-
ciple, which may operate in other contexts without specific legislative au-
thority? Or do they instead show that the general principle is that real
subrogation does not operate, unless there is such specific authority?24 As
we will see, it is possible that the answer lies somewhere in between.
B. Kinds of Real Subrogation
Although the phrase real subrogation has a pleasingly technical ring
to it, its meaning and scope are far from clear. It is sometimes used in
what may be called a merely descriptive sense. Consider the discussion of
real subrogation in Aubry and Raus classic analysis of the patrimony:
Taken in its broadest sense, real subrogation is a fiction accord-
ing to which one object replaces another so that it becomes the prop-
erty of the person who owned the first object and is clothed with that
objects juridical nature.
… Where an act resulting respectively in the alienation and ac-
quisition of property causes an object to leave a universality of law, it
stands to reason that the alienated object be replaced, as an element
forming part of this universality, by the object so acquired.25
21 Art 1244, para 2 CCQ. Failing any property acquired by reinvestment, the institute
must transfer the value of the property at the time of the original alienation to the insti-
tute.
22 See art 2674, paras 1-2 CCQ.
23 See art 2674, para 3 CCQ.
24 See Frdric Zenati-Castaing & Thierry Revet, Les biens, 3d ed (Paris: Presses
Universitaires de France, 2008) at para 156.
25 C Aubry & C Rau, Cours de droit civil franais daprs la mthode de Zachari (Paris:
Imprimerie et librairie gnrale de jurisprudence Marchal et Billard, 1873) vol 6 at pa-
ra 575(2). For an English translation, see Nicholas Kasirer, Translating Part of
(2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
804
Whether fiction is the right label has been much discussed.26 But there
is some consensus that this broadest sense is not particularly useful. In
the case discussed by Aubry and Rau, a person alienates an asset, trans-
ferring it out of his patrimony, in order to acquire some other, new asset.
But real subrogation is not needed in order to explain why the acquired
object forms part of the patrimony; the intentions of the parties adequate-
ly explain the result. This can be demonstrated by considering the case in
which a person receives a donation. The gifted property forms part of his
patrimony, but there is no substitution of one thing for another. In other
words, we need only say that, as a starting point at least, rights fall into
the patrimony of the person to whom they are transferred; real subroga-
tion is neither necessary nor sufficient to explain this.27
Leaving aside this very wide sense of real subrogation, there are still
other distinctions that can be drawn. Just as with personal subrogation, it
is possible to differentiate conventional real subrogation from legal real
subrogation.28 Within legal real subrogation, one can distinguish different
effects. Building on the writing of the glossators, many civilian systems
draw a distinction between real subrogation in universalities and real
subrogation relating to particular assets.29 In the former, the technique of
real subrogation is used to justify the conclusion that, where a thing be-
longs to a universality, then if it be alienated, the price received will itself
belong to that universality. The kinds of universalities that exist may
vary from one system to another, but we have already seen examples in
Quebec law: the private property of a spouse in a matrimonial regime, the
property in a substitution, or property subject to a hypothec of a univer-
sality.30
As for real subrogation relating to particular assets, in this context the
technique is used in this situation to transmit a juridical characteristic
from one thing to its substitute in the same patrimony. An example in
Frances Legal Heritage: Aubry and Rau on the Patrimoine (2008) 38:2 RGD 453 at
476-77 [footnotes omitted].
26 See Vronique Ranouil, La subrogation relle en droit civil franais (Paris: Librairie
gnrale de droit et de jurisprudence, 1985) at 57-63.
27 This observation was made long ago: see Henri Capitant, Essai sur la subrogation r-
elle (1919) 18 RTD civ 385 at 392. See also Savaux, supra note 17, Nos 26, 37.
28 Ibid Nos 13, 17.
29 See the discussion in Magdalena Raczynska, Parallels Between the Civilian Separate
Patrimony, Real Subrogation and the Idea of Property in a Trust Fund in Lionel
Smith, ed, The Worlds of the Trust, Cambridge University Press [forthcoming in August
2013] 454 at 465-69. Capitant was skeptical of the value of les vieux brocards des Bar-
tolistes (supra note 27 at 391-93).
30 Another typical example would be a succession before liquidation: in Quebec law, see
art 780 CCQ.
UNAUTHORIZED DISPOSITIONS OF TRUST PROPERTY 805
Quebec law, mentioned earlier, is that a hypothec on a particular thing
extends, if the thing be alienated, to its replacementor, if there be no
replacement, then to the price received.31 The price falls into the hypothec
of the debtor, just as the original thing did; neither falls into a special
universality.
In this paper, no attempt is made to develop a theory of real subroga-
tion. The goal is to answer the question set out earlier: namely, whether
the technique could be applied so as to conclude that the proceeds of an
unauthorized disposition of trust property should themselves be held to be
trust property, regardless of the intention of the trustee and any third
party with whom he dealt. It is, however, important to mention that, if
real subrogation can operate in this way, it would be an example of real
subrogation in universalities. The reason this is important relates to the
question mentioned abovethat is, whether the possibility of real subro-
gation depends upon the existence of a disposition of law. Many authors
are of the view that it does so depend in the context of particular assets
but not in the context of universalities.32
C. Real Subrogation and the Quebec Trust Patrimony
In his 1919 study, Capitant argued that real subrogation could operate
in a number of situations without the need for a legislative disposition. At
least two of these deserve attention in the present analysis.
One of them was the case in which a person (A) holds a real right in a
thing and another person (B) has alienated the thing in such a way that
the real right is lost. The typical example is an instalment sale by A to B,
followed by a sale of the thing by B to a third party. A remains the owner
of the thing after the instalment sale, but for reasons related to the pro-
tection of third parties who rely in good faith on appearances, B may be
able to transfer ownership to such a third party.33 In this kind of case,
31 See art 2674, paras 2-3 CCQ.
32 See e.g. Zenati-Castaing & Revet, supra note 24 at para 157; Raczynska, supra note 29
at 468. It is unclear, however, whether this distinction can hold. If one takes a wide
view of the meaning of universality, then every case of real subrogation may be a case of
subrogation in universalities. On this point, see Roderick A Macdonald, Reconceiving
the Symbols of Property: Universalities, Interests and Other Heresies (1994) 39:4
McGill LJ 761 at 779 (expressing the view that the CCQ implies that there is a division
of the patrimony whenever some property falling within it is not subject to the ordi-
nary rules governing the common pledge of creditors at 778-79). A division of a patri-
mony is a kind of universality. This also invites the question whether patrimonial sub-
rogation might be a better label than real subrogation, since the new asset might it-
self be a personal right.
33 In Quebec law, publication is required in some instalment sales: see art 1745, para 2
CCQ. Where publication is required and has not been made, As ownership is not op-
(2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
806
Capitant argued, there should be real subrogation of the price received
from the third party for the thing sold, so that A becomes the owner of the
price. This was a strong argument, inasmuch as such an example is usu-
ally considered to be a case of real subrogation relating to particular as-
sets.34 In that category of case, it is often thought that real subrogation is
allowed only where a legislative text exists to support it. And indeed there
was such a text, in certain cases, but Capitant argued that real subroga-
tion should be available even without one:
Il serait inique de refuser ce propritaire dpouill et rduit la
qualit de crancier dindemnit, le droit de se faire payer par prf-
rence sur le prix d par lacqureur. Il faut donc, ici encore, dcider
que le prix est subrog la chose.35
His article described how some courts had been willing to go beyond
the relevant legislative texts and grant a wider scope, in this context, to
real subrogation. What is particularly interesting is that, in subsequent
decades, French courts have continued to allow a wide scope to real sub-
rogation in this situation, enabling it to operate beyond the relevant legis-
lative texts.36
This context may seem distant from the law of trusts, but the trustee
who unlawfully disposes of trust property is selling property that does not
belong to him, without authority, in a way that may allow the buyer to be-
come the owner. In this perspective, the contexts are not wholly dissimi-
lar. If anything, the claim to real subrogation in the trust context should
be stronger, because the instalment seller is engaging in a commercial
transaction that, on its own terms, will ultimately lead (if all goes well) to
the transfer of ownership according to the contract. In the trust context,
by contrast, the trustee is not the would-be purchaser of the trust patri-
mony but only the administrator of it.
posable to third parties. Even if publication is not required, if Bs sale was in the ordi-
nary course of business, A may have to reimburse the third party as a precondition to
annulment of the sale to him: see art 1714 CCQ.
34 See text following note 30, above. On the other hand, one might say that the issue is
whether the price falls into As patrimony or Bs patrimony; in this light, it could be
seen as an example of real subrogation in universalities. Again the distinction between
the two different kinds of real subrogation may not be sustainable: see supra note 32.
35 Capitant, supra note 27 at 411.
36 See Vincent Sagaert, Cour de cassation franaise, 26 avril 2000: Priority Conflict
Between the Seller Under Title Retention and the Assignee of the Resale Claim (2002)
10:6 ERPL 823 (especially at page 826). See also Zenati-Castaing & Revet, supra note
24 (referring to a 1991 decision of a sale of property held in indivision: La subrogation
relle est dsormais clairement admise comme un principe gnral … : dcider, sans texte,
quun prix de vente peut tre substitu la chose nest-ce pas appliquer un principe gn-
rale ? Nest-ce pas la mise en uvre de la thse de Capitant, selon laquelle le prix doit
toujours tre subrog la chose ? at 251 [reference omitted]).
UNAUTHORIZED DISPOSITIONS OF TRUST PROPERTY 807
In Quebec, it has been argued that there is no place for real subroga-
tion in the context of instalment sales.37 There are two cases in the Su-
preme Court of Canada that seem to point in this direction. The more re-
cent of them did not deal with the question of who owned assets but ra-
ther with that of whether assets were unseizable.38 The bankrupt held a
pension that was unseizable but withdrew the funds and placed them into
another kind of plan that was, in principle, seizable and available to his
creditors. He argued that real subrogation should apply so that the new
asset should be unseizable. The Courts rejection of this argument, how-
ever, should not be read as a ruling that there can never be real subroga-
tion without a legislative text. The Court was concerned about the infinite
prolongation of unseizability that would result if this characteristic could
be projected onto the proceeds of any number of generations of substitu-
tion.39 But this concern does not obviously extend to the trust context; on
the contrary, one might think that the trust patrimony should be protect-
ed wherever possible. Although the Court stated that investment and re-
investment cases are exceptional, and are expressly provided for in the
law,40 it would be going too far to conclude that this pronouncement, in
the context of the seizability of assets, has implications for the civil laws
ability to maintain the integrity of the trust patrimony.
It is true that the Court said, in a wide pronouncement:
The earlier case was decided under the Civil Code of Lower Canada.41
Daprs les principes gnraux de la loi de la province de Qubec, il
nexiste pas de droit rel ou droit de suite sur largent ou le prix pro-
venant de lalination dune chose.42
It is not clear, however, that this judgment should be seen as foreclosing
the possibility of real subrogation in instalment sales generally, still less
in relation to trusts. The plaintiff in this case was not a seller who re-
tained ownership; he had transferred security certificates to his broker af-
ter having endorsed them in blank to make them negotiable. The account
between the plaintiff and the broker was nothing like a trust, not even
like an instalment sale; the plaintiff had himself effectively authorized the
37 See Louis Payette, Les srets relles dans le Code Civil du Qubec, 4th ed
(Cowansville,Que: Yvon Blais, 2010) at para 2137.
38 Poulin v Serge Morency et Associs Inc, [1999] 3 SCR 351 at paras 35-39, 177 DLR (4th)
283.
39 Ibid ([w]here do we draw the line? Is the property unseizable in perpetuity, regardless
of what use is made of the sums declared to be unseizable? at para 36).
40 Ibid.
41 Grondin v Lefaivre (Trustee), [1931] SCR 102, (sub nom Grondin v Lefaivre) [1931] 2
DLR 114 [cited to SCR].
42 Ibid at 111.
(2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
808
broker to use the securities like money, and the arrangement between
them was a running account between debtor and creditor.43 When the
broker became insolvent in the stock market crash, the plaintiff should
not have been surprised by the decision that he was not allowed to re-
characterize the relationship as a kind of deposit, which would have al-
lowed him to claim a right of ownership of the proceeds of his securities.
He had authorized the broker to sell his holdings if need be, not as a trus-
tee but on a running account, and this is exactly what had happened.44
Be that as it may, we can conclude this part by considering another
situation in which Capitant argued that real subrogation could operate
without the need for any legislative text:
La seconde rgion du domaine de la subrogation relle comprend les
cas o un patrimoine appartenant une personne se trouve, soit
parce que son titulaire est absent, soit parce que, sagissant dune
succession, le vritable hritier ne sest pas encore fait connatre, entre
les mains dun possesseur qui a le droit den disposer. La subrogation
relle empchera la confusion entre ce patrimoine et celui du dten-
teur.45
Of course, Capitant did not mention the trust; and we might now pre-
fer to say qui a le pouvoir den disposer.46 But the generic juridical de-
scription that he provided seems perfectly to capture the situation of the
Quebec trust, in which the trustee, as administrator of the property of an-
other, has powers over the trust property, though it does not belong to
him. In the type of situation that he addressed, Capitant noted that, without
the operation of real subrogation, the person in control of anothers patri-
mony would be able to deplete that patrimony and reduce its holder to a
mere creditor. That is exactly what would happen in the Quebec trust if
real subrogation did not operate. Where a trustee misappropriates and
spends trust property, the trust patrimony is reduced. The claim for
breach of trust is a purely personal claim, which may be worthless if the
trustee is insolvent. And in that case, in the absence of real subrogation,
the trustees other creditors would take an unjustifiable benefit: if the
price received for trust property should fall into the trustees personal
patrimony, then the assets in that patrimony will have been inappropri-
43 See ibid at 105-106.
44 The same result applies to this situation under the common law: see Smith, Tracing,
supra note 13 at 100.
45 Supra note 27 at 407.
46 See e.g. Madeleine Cantin Cumyn, Le pouvoir juridique (2007) 52:2 McGill LJ 215.
UNAUTHORIZED DISPOSITIONS OF TRUST PROPERTY 809
ately increased at the expense of the trust patrimony, simply by the un-
lawful act of the trustee.47
Since 2007, French law has had a fiducie.48 French authors have sug-
gested that, where trust property is improperly alienated, real subroga-
tion should operate so that the property acquired in exchange falls into
the trust patrimony.49 The same result should follow in Quebec, where the
autonomy of the trust patrimony is much clearer than in France.50
Conclusion
The Quebec trust has been structured as a distinct and autonomous legal
institution, which offers many measures of supervision and protection for the
trust patrimony and the beneficiaries. There seems every reason to think
that the principles of real subrogation should operate in cases of unau-
thorized dispositions of trust property. This would mean that the proceeds
of such dispositions would themselves fall into the trust patrimony, re-
gardless of the intentions of the trustee acting in breach of trust, or of the
third parties (however innocent) with whom the trustee has dealt. The
law itself is competent to decide that such proceeds rightly belong to the
trust. If they did not, there would be an unjustifiable windfall to personal
creditors of the breaching trustee, at the expense of the trust and its bene-
ficiaries.
47 Writing of the Scottish trust, which forms a separate patrimony with the trustee as its
titulary, George Gretton states that it would be absurd if real subrogation did not op-
erate in a case of an unlawful purchase by the trustee using trust property: George L
Gretton, Constructive Trusts: I (1997) 1:3 Ed L Rev 281 at 297-98.
48 See arts 2011-30 C civ.
49 See Zenati-Castaing & Revet, supra note 24 at para 278. The authors state that real
subrogation also operates in the case of a lawful, authorized disposition of the trust
property, although the idea of real subrogation seems not to be necessary in this case:
see text following note 26, above. See also Nicolas Borga, Le fiduciaire responsable
(exgse de larticle 2026 du Code civil) ?, Revue Lamy Droit des Affaires 47 (March
2010) 83 at para 14. Borga also discusses a problem addressed earlier in this paper (see
Part I, above), namely whether it is possible to recover original trust property trans-
ferred unlawfully to a third party. He concludes that the disposition may, if the third
party is not in good faith, be annulled by the beneficiary (Borga, supra note 49 at paras
25-27).
50 Some provisions of the French Code civil reduce the autonomy of the patrimony of the
fiducie. By article 2025, the settlor of the fiducie is personally liable for debts created in
its operation if the assets of the fiducie are not adequate. By article 2029, the fiducie
comes to an end when the settlor dies, if he or she is a natural person, or if the trustee is
dissolved or disqualified.
