334-Cantin Cumyn Civillawproperty Fall2004

7/28/2019 334-Cantin Cumyn Civillawproperty Fall2004

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Civil Law Property Kirk ShannonSummary

CIVIL LAW PROPERTY - SUMMARY 2004Semester 1 Cantin-Cumyn

PART 1: INTRODUCTION TO THE CIVIL LAW OF PROPERTY.................................................................................. 3

CHAPTER I HISTORICAL BACKGROUNDTO CIVIL LAW PROPERTY........................................................................................ 3A.M. Patault, Introduction historique au droit des biens .............................. ................................ ................................. ....................... 3

A.M. Patault, Introduction historique au droit des biens .................. .............. ............... .............. .............. .............. .......... 3

CHAPTER II THEORYOF PATRIMONY..................................................................................................................................... 3

S.2 Definition of Patrimony................... .............. .............. .............. .............. .............. ............... .............. .............. .............. 3

S.3: Role of theory of Patrimony in the Civil Law Tradition................... .............. .............. .............. .............. ............... ..... 4C. Aubry & G. Rau, Cours de droit civil franais daprs la mthode de Zacharie...... ................................. ................................. ....... 4

C. Aubry & G. Rau, Cours de droit civil franais daprs la mthode de Zacharie............ ............... .............. .............. ..... 4J. Ghestin, Trait de droit civil : Introduction gnrale ................................ ................................ ................................. ........................ 4

J. Ghestin, Trait de droit civil : Introduction gnrale ....................... ............... .............. .............. .............. .............. ........ 4J.-L. Baudouin & P.-G. Jobin Les obligations ................................. ................................. ................................. ................................. . 5

J.-L. Baudouin & P.-G. Jobin Les obligations ............. .............. .............. ............... .............. .............. .............. .............. ...5M. Cantin-Cumyn, La fiducie, un nouveau sujet de droit ?................................ ................................. ................................. ................ 5

M. Cantin-Cumyn, La fiducie, un nouveau sujet de droit ?.......................... .............. .............. ............... .............. .............. 5

S.4 Classification of subjective rights based on the concept of patrimony...........................................................................6B. Respect of the body as an extra-patrimonial right ................................. ................................ ................................. ...................... 7

B. Respect of the body as an extra-patrimonial right .................. ............... .............. .............. .............. .............. ............. 7C. Respect to image, reputation and privacy............. ................................. ................................. ................................. ...................... 7

C. Respect to image, reputation and privacy................... .............. .............. ............... .............. .............. .............. ............ 7Case: Torrito v. Fondation..........................................................................................................................................................7Case: Laoun v. Malo................................................................................................................................................................ ...8Case: Laprairie Shopping Centre................................................................................................................................................9

E. Extra-Patrimoniality of the Family Relationship.......... ................................. ................................. ................................. .............. 9

E. Extra-Patrimoniality of the Family Relationship....................... .............. ............... .............. .............. .............. ........... 9

PART 2: CLASSIFICATION OF PROPERTY (OR PATRIMONIAL RIGHTS) AND OF THINGS..............................9

CHAPTER I: DISTINCTIONB/N REAL RIGHTS, PERSONAL RIGHTS, INTELLECTUAL RIGHTS....................................................10

S. 1 Real Rights................... .............. .............. .............. ............... .............. .............. .............. .............. .............. ............... .. 10S. 2 Personal Rights ............. .............. .............. .............. .............. ............... .............. .............. .............. .............. ............... 11

Case: Ouimet v. Guilbault.........................................................................................................................................................12S. 3 Comparison b/n Real Rights and Personal Rights ......................................................................................................12

S. 4 Intellectual Property................... .............. ............... .............. .............. .............. .............. .............. ............... .............. . 15Case: Diffusion YFB v. Les Disques Gamma...........................................................................................................................16Case: SOQUIA v. Robert Libman.............................................................................................................................................17

S. 5 Observations on the use of Terminology......................................................................................................................18

CHAPTER II: DISTINCTIONB/N MOVABLESAND IMMOVABLES...............................................................................................18

S. 1 Origin of the distinction and classification...............................................................................................................18

S. 2 Classification in the CcQ -- Comparison b/w Codes................................................................................................18Case: Belair.................... ................................. ................................ ................................. ................................. ................................. ... 19

Case: Cablevision................ ................................ ................................. ................................. ................................. .............................. 19

S. 3 Relevance of Classification Today............................................................................................................................21Case: Horn Elevator............. ................................. ................................. ................................. ................................ .............................. 21

Case: Nadeau v. Rousseau.................. ................................. ................................. ................................ ................................. ............... 21

Case: Construktek.............. ................................ ................................. ................................. ................................. ................................ 22

Case: Axor Construction........ ................................. ................................. ................................. ................................. .......................... 22

What is at stake when classifying an object as immovable under 901 or 903............................................ ................................. ........ 23

CHAPTER III: OTHER CLASSIFICATIONS.................................................................................................................................. 24

S. 1 Capital and Fruit/income ....... .............. .............. .............. ............... .............. .............. .............. .............. ............... .24

S. 2 Fungible / Consumable.................. .............. .............. ............... .............. .............. .............. .............. ............... ......... 25

S. 3 Things in Commerce, res nullius, res communes......................................................................................................25

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S. 4 Legal Characterisation of Water................... .............. .............. .............. ............... .............. .............. .............. ........ 26Cantin Cumyn, L'eau, chose commune: un statut juridique confirmer................................. ................................. ........................... 27

Cantin Cumyn, L'eau, chose commune: un statut juridique confirmer............................................................................27Case: Morin v. Morin................................................................................................................................................................28

PART 3: PROPERTY IN RELATION WITH PERSONS (SUBJECTS OF RIGHTS IN LAND)...................................29

CHAPTER II: PRIVATE OWNERSHIPOF LANDANDITSORIGIN.................................................................................................29S. 1 The Seigneurial System and its abolition..................................................................................................................29

S. 2 Permanent Consequences of abolition of tenure system..............................................................................................30

S. 3 Private Ownership of Land (or private domain); multiple sources; content of title...................... .............. .............. . 31Case: Houde..............................................................................................................................................................................31

Watercourses Act............................. ................................ ................................. ................................. ................................. .................. 32

Case: Auger..............................................................................................................................................................................32S. 4 State Ownership of Land (or Public Domain)............... .............. .............. ............... .............. .............. .............. ...... 33

Case: Batiments Kaladart.........................................................................................................................................................34CHAPTER II: RIGHTSIN LANDOF NATIVE PEOPLES................................................................................................................35

PART 4: THE RIGHT OF OWNERSHIP..............................................................................................................................37

CHAPTER I: CONCEPTOF OWNERSHIPIN QUEBECANDINTHE CIVIL LAW............................................................................37

S. 1 The Paramount Legal Right......................................................................................................................................38

S. 2 Attributes of Ownership.................. .............. ............... .............. .............. .............. .............. ............... .............. ........ 40

S. 3 Characteristics of Ownership................. .............. .............. .............. ............... .............. .............. .............. .............. . 41Individual right....................... ................................. ................................ ................................. ................................. ........................... 41

Exclusive right....................... ................................. ................................. ................................. ................................ ............................ 42

Perpetual right....................... ................................. ................................. ................................. ................................. ............................ 42

CHAPTER II: RESTRICTIONSINTHE EXERCISEOFTHE RIGHTOF OWNERSHIP........................................................................43

S. 1 Relations b/n Neighbours: Abnormal Inconveniences distinguished from abuse of right and encroachment........ .44Case: Lessard v. Bernard...........................................................................................................................................................44Case: Gourdeau v. Letellier.......................................................................................................................................................45Case: Barrette v. Ciment St-Laurent.........................................................................................................................................45

S. 2 Other Codal Restrictions ............... .............. ............... .............. .............. .............. .............. .............. ............... ....... 46Articles in relation to Art 976................................. ................................. ................................. ................................ ............................ 46

Articles in relation to Art 976............... .............. .............. .............. .............. .............. ............... .............. .............. ............. 46

Prevention of conflict b/n neighbours (owned by different people real rights)................. ................................ ................................ 47Prevention of conflict b/n neighbours (owned by different people real rights)....................... .............. .............. ............ 47

Procedures to avoid encroachments with regards to buildings.................. ................................. ................................. ......................... 48

Procedures to avoid encroachments with regards to buildings..........................................................................................48Case: Themens v. Royer...........................................................................................................................................................48

S. 3 Expropriation and other instances of non-consensual Acquisitions.........................................................................49Case: Sula v. Cit de Duvernay................................................................................................................................................. 49

S. 4 Other sources of limitation: Special Legislation found outside of the Code:........................................................50

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Civil Law PropertySummaryK. Shannon

Part 1: Introduction to the Civil Law of Property

Chapter I Historical Background to Civil Law Property

A.M. Patault, Introduction historique au droit des biens

The affirmation of jus disponendi (associated with the right of ownership)

The power to dispose of material, to alienate and modify, not only to enjoy its possibilities. This power is held only by hewho fully possesses the immovable, not by he who only enjoys its utility.

Lopposition proprit / droits sur la chose dautrui

Servitude Art 1177: A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, thedominant land, belonging to a different owner.

A right exercised on the thing of another, un asservissement du fonds amput.Usufruct Art. 1120: Usufruct is the right of use and enjoyment, for a certain time, of property owned by another as onesown, subject to the obligation of preserving its substance.

Notes : Customary Law : The immovable is the source of wealth and therefore property law is based on the notion ofownership

Chapter II Theory of Patrimony

S.1 Origin of the Patrimony: NOT Roman law, but is much more recent: first stated by Zachariae (Germanjurist) around 1810, then introduced into France by Aubry and Rau around 1850. However, looking at the SUBSTANCE ofpatrimony, it ties together many inter-related ideas that were well-established in Roman law and then evolved over time.

S.2 Definition of Patrimony

Patrimony is an aggregate of rights and liabilities, in which the rights guarantee the liabilities. (Ghestin)

A legal universality that groups rights or charges (present or future) where the rights guarantee the performance ofobligations (Baudouin)

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S.3: Role of theory of Patrimony in the Civil Law Tradition

C. Aubry & G. Rau, Cours de droit civil franais daprs la mthode de Zacharie

Theory of the Patrimony : The ensemble de biens of a person (united and indivisible). It has a pecuniary value andincludes debts as well as property. It is an outcome of the personality and an expression of juridical power. In pure theory,

the patrimony comprises all property indiscriminately, notably innate or unborn property and property yet to be acquired.

3 Principles1) Physical or moral persons have one patrimony (art 2)2) Every person has a patrimony even if they own nothing3) The same person can only have one patrimony in the true sense of the word

Art 2 Every person has a patrimony.

The patrimony may be divided or appropriated to a purpose, but only to the extent provided by law.Art 302 Every legal person has a patrimony which may, to the extent provided by law, be divided or appropriated to a

purpose. It also has the extra-patrimonial rights and obligations flowing from its nature.

o Unity and indivisibility codified [art. 2644]Art 2644 The property of a debtor is charged with the performance of his obligations and is the common pledge of his

creditorso Pat. cannot be divided, all property of the person could eventually be used to live up to obligations

Necessary link b/n person (physical and/or legal) and a Patrimony:o Only a person can have one according to Aubry and Rauo Pat of persons is either 1) Pat of Human being and 2) Pat of Legal being both have rights and

obligations

J. Ghestin, Trait de droit civil : Introduction gnrale

Extra-Patrimonial rights: Those that cannot can be evaluated from a monetary standpoint (do not have pecuniary value).

Patrimonial Rights: Group of laws governing present and future property and debt. A universality in law made up of rightsand obligations in which the rights (Active) respond to the obligations (passive).

Universality de driot the patrimony unites rights and debts at the same time; it consists of assets and liabilities that areinseparable from each other.

o For example, the right of the creditor is the power to demand from another the execution of a prestation. Atthe same time, there is a corresponding charge weighing on the debtor: the obligation. If the debtor does not

perform his prestation voluntarily, the creditor can simply impose an indirect sanction: the alienable rightsof which the debtor is titulary are sold by authority of justice and the price is attributed to the creditor. Inother words: THE RIGHTS GUARANTEE THE EXECUTION OF OBLIGATIONS.

o This is the factor of cohesion that allows the acquiring of new rights and obligations and is sustained evenwhen certain elements disappear.

o Patrimony is the ONLY judicial universality in Civil LawEssential link between rights and liabilities: Art 2644 The property of a debtor is charged with the performance ofhis obligations and is the common pledge of his creditors. Art 2645 says this includes property immovable andmovable, present and future, except property forming part of a legally sanctioned division of patrimony.Dynamic: Content changes over time because owner can always enter into new agreements. Not just content,therefore, but also container.

o Art 2. says that patrimony may be divided or appropriated to a purpose, to the extent provided by law.

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The Patrimony has 2 Characteristics (NB the pat NOT pat rights):1. Indivisibility :

a. One sole patrimony per person.i. Moral persons (eg. Corporations) can also have a patrimony.

2. Not transferrable between living persons

Exceptions to the Patrimony

1. Trust:Patrimony of appropriation is an exception to the rule (art 1260). Que allows establishment of trusts andfoundations, effectively a new patrimony.

2. Family patrimony: is another exception to the rule(art 414) i.e., identifying net family property is not really a newpatrimony, rather a conceptual distinction.

J.-L. Baudouin & P.-G. Jobin Les obligations

Droits extrapatrimoniaux : lensemble des droits possds par une personne qui ne sont pas en eux-mmes apprciables enargent. Mme les personnes morales peuvent jouir de droits extrapatrimoniaux lis leur nature (libert dexpression).Droits patrimoniaux : lensemble des droits de caractre conomique et apprciables en argent, dtenus par une personne

physique ou morale.Il y a trois sortes de droits patrimoniaux : droits rels, droits personnels et droits intellectuels.

Patrimoine : lensemble des droits (actif) et des obligations (passif) dune personne physique ou morale, possdant unevaleur pcuniaire ; cest essentiellement une notion conomique. Au dcs du titulaire, il se transmet ceux qui constituent sa

personnalit.

- A legal universality that groups rights or charges (present or future) where the rights guarantee the performance ofobligations

Assets Rights Obligations Liabilities

M. Cantin-Cumyn, La fiducie, un nouveau sujet de droit ?

- Patrimoine daffectation Patrimony of appropriation- La fiducie as something separate, an autonomous entity (distinct from both the idea of trust in common law andfiducia in Roman law.)

- Fiducie is not personalised that is, it is not considered a moral person but rather a patrimony of appropriation- Avoids irreducible incompatibility b/n the trust and the corporation in the common law tradition- Actually, a human being, the subject of law and the person are three different things- Fiducie becomes debtor, creditor and owner of its own biens it becomes the subject of law.

2 Consequences of this as it cannot be said that la fiducie is a moral persono 1. Has no rights to extra-pat rights (ie. driot de la personne)o 2. Unable to hold an office (Exercer une charge), administer the property of another, act

as fiduciary or as proxy Can declare bankruptcy

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S.4 Classification of subjective rights based on the concept of patrimony

A. Subjective Rights (both Patrimonial and Extra-patrimonial): The prerogative that a titulary exercises in his owninterest.

1. Patrimonial rights = PROPRETYa) Tramissible /can be alienated inter vivos, by gift, ormortus causa.

Are governed by Kinter-vivosb) Seizable by creditors and can be liquidated to pay debts.c) Extinguishable by non-use (except ownership) or by prescription (art. 2921). (Although it is not stated

explicitly in 2921, the provision only applies to patrimonial rights.) Art 2644 only property (i.e. patrimonial rights) can be reached by creditors Art. 614; 625 only property can be involved w/in successions Art. 903 wills can only involve property

d) Monetary or Pecuniary ValueExceptions to these:

(eg, the inalienability of prop see art 1212) as well as certain objects (see CB. p.74 CCP Art 553) Pat. rights may also be extinguished at death (usufruct)

2. Extra-patrimonial rights have an opposite regime.a) Inalienable They are not freely the object of contract/devise

Art. 8 No person may renounce the exercise of his civil rights, except to the extentconsistent with public order.

Art. 9 In the exercise of civil rights, derogations may be made from these rules of thisCode which supplement intention, but not from those of public order.

Art 10 re: inalienability Art 24 Consent to infringement of the integrity it can be withdrawn (even verbally) Art 1412 The object of a K is the juridical operation envisages by the parties at the time

of its formation, as it emerges from all the rights and obligations created by the K. Art. 1413 A contract whose object is prohibited by law or contrary to public order is

null. Art. 1610 the right to damages in personal actions cannot be TFd but in very certain

circumstances.b) Not seizable;c) Non-prescriptible (will not become extinct).d) Extinguished at death (heirs have right to take action for pre death breach (art 625)

However, recent authors have challenged this distinction (Cantin thinks rightly so). Now we see extra-patrimonial rightsas rights giving value to fundamental and inalienable rights in our society. (i.e. civil status/capacity, citizenship, indiv. rts.)

- View Buffered by Art 3 Every person is the holder of personality rights, such as the right to life, the right tothe inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.(2)These rights are inalienable. and Quebec and Canadian Charters

Patrimonial Rights :

- Transferable inter vivos (with exceptions 1212 andCCP art 553)

- Transferable at death (exception : usufruct)- Seizable (exceptions : 552-553)- Prescriptive extinction (exception : Right of

ownership except for Acquisitive Prescription)- Pecuniary value

Extra-Patrimonial Rights (Art. 3, 10, 24, 25, (10-31))

- Innate rights- Cannot be dissociated from the person- Not transferable- Unseizable- Non-prescriptables- Not affected by non-use (cannot be extinguished)- social and human values- Those that involve the integrity of the person- Protection of privacy and rep

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CAN BE OBJECT OF CONTRACT- Extra-patrimoniality of familial relationships

CANNOT BE OBJECT OF CONTRACT

B. Respect of the body as an extra-patrimonial right

Art 10Every person is inviolable and is entitled to the integrity of his person.(2) Except in cases provided for by law, no one may interfere with his person without his free and enlightenedconsent.

Art 24Consent to care not required by a persons state of health, to the alienation of a part of a persons body, or toan experiment shall be given in writing.(2) It may be withdrawn at any time, even verbally.

Art 25The alienation by a person of a part or product of his body shall be gratuitous; it may not be repeated if itinvolves a risk to his health.(2) An experiment may not give rise to any financial reward other than the payment of an indemnity ascompensation for the loss and inconvenience suffered.

Respect to the human body not as property See art 10-31, 42-49

Dead or alive is not property There are no ownership rights Human cannot be the object of a K:

human cannot be the object of a K (that would be akin to slavery thus our employment Ks now arestrikingly distinct from slavery type (a.2085,2094)

adoption cannot proceed on the basis of K, must follow legal procedure (a. 543) procreation/gestation Ks are null (a. 541) no transaction or arbitration can be made with respect to status/capacity of persons (a.2632, a. 2639)

Le droit des personnes physiquesE. Deleury and Goubau :La personne en son corps ; lclatement du sujetArt. 11-25

Il est important de noter que dans le nouveau code civil, le lgislateur fait de la gratuit une condition imprative pour ledon dune partie du corps humain. Ce faisant, il garantie la libert du consentement. Art 25.Le corps humain est tout la fois sujet et objet, sujet dans lexpression de sa libert, mais objet aussi quand les impratifsde la sant publique sont en cause et quil sinfiltre dans les mcanismes du march sous la forme de choses.

Hidden Trade in Albanian babiesorgans (newspaper article)Albanian prosecutors suspect that the organs of missing children are being sold for transplant and that other infants are beingstolen for adoption abroad.

Another article deals with: Kidney trade in SA and Brazil

Regarding Employment: Slavery before, but now we have the principle of equality--- stringent rules that deal with contracts of employment.

You can break contracts if you desire:Art 2085 defines contract of employmentArt 2094 states that you can break an employment if you desire (with a serious reason)-Prostitution is against public order.

C. Respect to image, reputation and privacy

Refer to Articles 3, 35, 36 (and others to up 41)

Case: Torrito v. Fondation

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Torrito v.Fonation Lise T. pour le respect du droit a la vie [1995] C.S.et a la dignit des personnes lourdement handicapesFacts: Pl. seeks an interlocutory injunction. PLs daughter severely handicapped and dies D was care-giver during life of childe and forms

foundation using the name and photos of the child toassist persons in similar situations. D did not obtainconsent for use of name, image, story.

Issue: Use of childs name, image and story without

consent Claims by parents on dead childs behalf for privacy Claim by parents as to their own right of privacy

Decision: Interlocutory Injunctiongranted

Ratio:Affirms that the right to name, image and story are not a

property right, therefore are inalienable - can only be usedwith consent and, after having given consent, one does not

give up right to image. Does not matter if pics taken in good faith The event did not take place too long ago (occurred

quite soon after photos used) PL did not renounce privacy it was assumed that

there was a renunciation of privacy, but, renunciationmust be proven NEVER assumed in Civil Law

Public Interest does not apply as only applies incertain cases public person, people in politics

NOT FOR PRIVATE PERSON

Notes: Injunction: parents claimed and were granted an interlocutory injunction in order to have the pics stop being used

immediatelyIn Torrito, parents wearing 2 hats: Claiming damage for invasion of their own privacy. Tried to claim as heirs of their daughter (Art. 625(3)) (took pics of girl while she was alive without permission,

contra art.35 & 36) Although personality rights are extinguished at death, the right to take action for the personalityright is transmitted to the heirs. Had privacy been invadedpost mortem the heirs would have had no right to claim.

Case: Laoun v. Malo

Laoun v Malo [2003] C.A. QueFacts:

PL (Malo) agrees to use her image in advertisementfor Silhouette signed K with D and was paid

D later reused photo of PL without getting theconsent of PL Claims breach of personality rights Art 35, 36

Issue: To what extent original authorization would permit

further use of the imageDecision:

Decision Image and right to privacy is non-transferable

Damages for both patrimonial and extra-patrimonialrights

Ratio:Consent of the PL to Silhouette to use the image of the PLdoes not bring with it the consent for the D to use the image

One contract of consent does not extend tocontinued use of the same image unless thecontract otherwise specified

One does not presume that one renounces the rightto ones privacy Renunciation can not beassumed

Person may have copyright of photo (which mayvery well be the case) does not give the right to usethe image for purposes other than that authorizedfor by the PL

Not transfer of privacy temp. renunciation

Notes: B/c one allows the use of the image, one does not give up the right to that image Use of that image only

extents as far as contract allows it to extend Must balance freedom of information with right of privacy

Cantin on Laoun v. MaloHow are we to characterise that contract? (Imagine that payment is made)

Not a transfer of right of that image or right to privacy (art 3(2)) Not a contract of transfer Close to a contractfor services

Person signing such a contract is renouncing the right to privacy and therefore must be interpreted very narrowly Could reneg on contract as is not a transfer of right (would have to give back money) but is renunciation

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Person allowed to use the image cannot allow another to use image as there is nothing to transfer

D. Professional secrecy rights are personal and extra-patrimonial rights.

Case: Laprairie Shopping Centre

Laprairie Shopping Centre Ltd. (syndic bankruptcy) v. Me Reevin Pearl [1998] C.A. QueAppl. acting as trustee in bankruptcy. Resp. is a lawyer previously representing bankrupt, objected to one of app.s questionsduring interrogation re: bankrupt. App. advised resp. that it was renouncing the privilege of confidentiality. Resp. says thatapp. cannot renounce this privilege.Issue: Do the powers of the trustee extend to the rights attached to the person of the bankrupt?Held:

First, the trustee is a hybrid, being at the same time the assignee of the debtors rights and the representative of thecreditors.

However, no authority has dared suggest that the trustee in bankruptcy continues the personality of the bankrupt inquestions other than those linked to his property or pecuniary rights, whether they be corporeal or incorporeal.

The trustee in Bankruptcy cannot renounce the personality rights of the bankrupt extra-pat rightCantin on Laprairie

Professional secrecy rights are personal and extra-patrimonial rights. Taking account of the non-transmissibility whichflows from this, and the fact that the trustee does not continue integrally the person of the bankrupt, we must concludethat the right to confidentiality does not devolve to the trustee and that he cannot therefore consent to renounce it.

NB if one is a big fan of market forces then one will not like this application Regarding the sale of a business, usually the contracts of sale include the files and clients. Cantin-Cumyn: people

probably do not think about what they are doing, but it is problematic to transfer these confidential files (especiallywith respect to law medicine) without the consent of the patients and/or clients (art. 37-41 CCQ).

E. Extra-Patrimoniality of the Family Relationship

Reciprocal rights and obs of support that exists b/n close family relations (art 32-34, 585-596) There is ob to support and maintain b/n spouses and with children (as well as in divorce) Generally, this ob is looked after w/in the familyButSometime not:

o Will take form of alimony payments Creditor and debtor situationo Periodical sum of money (art 587) which will depend on means of debtor and means of creditor

Any violation, as far as civil recourse in terms of extra-pat rights, are sanction by damages (not prison) andinjunction (we do look at the money as the sum of the right)

Alimony looks like extra-pat o Cannot be transferredo Cessation with death (although continues for six months after death (art 684)o Unseizable (well, only can be seized to pay alimony to another (a child))o Not extinguished with time

Part 2: Classification of Property (or Patrimonial Rights) and ofThings

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Chapter I: Distinction b/n Real Rights, Personal Rights, Intellectual Rights

S. 1 Real Rights

A. Definition Cantin DEF.: The real right has a thing (res) as its object and establishes a direct and immediate link between the

titulary of the right and the thing. Jus in re

at the top of the organisation of this area of law

B. Characteristics What is its essence?1) OBJECT:

A material thing immovable or movable (depending on object (art 904)) A debated question is whether a real right has to bear upon a corporeal / material object. Carbonnier seems to say that materiality is needed. Baudouin says it is possible for non-material thing to be object of real rightbut, for our purposes, must

be material2) RELATIONSHIP BETWEEN 2 COMPONENTS:

o 2 components (titulary of right why no person titulary of right b/c MUST include the trust) and the

thingo No intermediary Autonomous and Direct relationshipo Link is fully there in terms of right of ownership (and less so with dismemberment of ownership (where

received benefits of the object but do not have right of ownership))o Chart belowo Titulary may not be prevented from exercise legal right (unless legal incapacity [minor, major person who is

unable to act declared by a court])o Baudouin opposable to all

REAL RIGHTS GRANT THE FRUIT IN THE OBJECT: When dealing with principle real rights (those giving fruits in the sense of profits), the titulary will have the

property in hand(physical control). [See art. 1124 CCQ: the usufructuary has the use and enjoyment of theproperty. This leads to the possibility of leasing (art. 1135): it is not the OWNER who leases here, but theusufructuary.]

Ex. if you own a house and a usufructuary has an interest in it then he can be the holder of a real right in theproperty and can lease it out.

Difference b/n accessory real right (constitutes security that is nec. attached to a claim for which it guaranteesperformance) and principle real right

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S. 2 Personal Rights

A. Definition

Defn: Personal rights are also known as droits personnels, droits de crance, or jus in personam. It describes a legal relationship between two persons (subjects of law or titularies) whereby one, the creditor, is

able to obtain from the other, the debtor, the performance of a service or the execution of a prestation.

B. Characteristics Exchange of services is involved 3 components

o creditoro debtoro the prestation or obligation that must be performed by the debtor (to do or not to do something)

Will appear as asset in creditors patrimony and an obligation in the patrimony of the debtor Only opposable to one (1) innopposable

C. Essence Personal rights can come in any shape or size. Any obligation not against public order could be a valid one

(Art. 1373).Art 1373 The object of an obligation is the prestation that the debtor is bound to render to the creditor and which

consists in doing or not doing something.(2) The debtor is bound to render a prestation that is possible and determinate or determinable and that isneither forbidden by law nor contrary to public order.

Art 1374 The prestation may relate to any property, even future property, provided that the property is determinate asto kind and determinable as to quantity.

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The Right of Ownership(947)

Jus in Re

(Principle

Real Rights)Dismemberments

Right of Enjoyment/ PersonalServitudes

Real Servitudes (1177)

Usufruct (1120)Usage (1172)Emphytusis (1195)Right of superficie (1110)

Servitude of viewRight of Way etc.


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Case: Ouimet v. Guilbault

Ouimet v. Guilbault [1972] Que C.S.Facts:

Promise of sale signed in 1964 (had transferhappened immediately it would have been acontract of sale (and not a promise of sale) with

date of sale to be in the future (1969) 1967, expropriation of land by municipality claim that defendant did not fulfill obligations as

plaintiff had rights to the propertyIssue:

Regardless of obligations of defendant at time ofexpropriation, are they extinct b/c ofexpropriation (b/c of art 1202 of CCLC) whichwas attempted to be termed as force majeur

Decision: For plaintiff. Damages for the loss of right to buy

property for $10,700

Ratio: Agreement of 1964 is not considered as transferring

property Promise is not a sale as, in a sale, [Contract of Sale

(art 1708)] the vendor gives something to the buyerfor an amount of money which the buyer obligeshimself to pay

With promise of sale, the buyer becomes creditor ofan obligation to sell personal right situation

Becomes an action in passation of title (see notesbelow)

Defendant was under obligation before obligationbecame impossible and that the right of the plaintiffis not extinguished

Notes: Obligation ofdare to transfer of ownership Cases can either involve in real action (Person who has real right [ownership has been transferred] to property and

wishes to claim that right) which gives way to real right (petitory action) Or a personal action (personal rights relationship) (action in passation of title obligation to transfer, transfer

has not happened)

S. 3 Comparison b/n Real Rights and Personal Rights

1) Both Are Patrimonial Rights

2) The Object of the RightObject of a real right is necessarily an object that is determined/specific must be a thing that exists

Eg. Contract of sale of a house yet to be built cannot be considered a contract of sale. Does not existyet. Is only a promise to be sold when built. at time of contract buyer is merely a creditor and thereforethere are risks if the contractor becomes insolvent

Object of personal right the obligation/prestation can be undetermined at the time of the contract and still be binding onpart of the debtor provided that it is determinable by the terms of the contract (see art 1373, 1374)

Eg. Agreement for services to administer the rental of an immovable price is labelled as being % ofrental income of the immovable. Amount of price is not determinable by the terms of the contract but will

be determined when rental takes place

3) Limited/Unlimited in Number

Personal Rights: Are unlimited in number. Left to the imagination of the parties and only confined by public order.

Real rights: There are a limited number of real rights but not as limited as one might think Art 1119 lists a number (not exhaustive) of them. Can also have Real Rights created by statute:

o Forest Act, Mining Act and Act Respecting Lands in the Public Domaino Art. 87 in the ForestAct(p. 59) provides that if the state grants rights here, they are

(immovable) real rights. Same for theMining Act.

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The Forest Actcontemplates the granting of rights in forest lands by means offorest management permits:

art. 2: no one may carry on a forest management activity unless holding aforest management permit.art. 87: the rights vested in an agreement holder by a forest management

permit are immovable real rights.

TheMining Actalso creates immovable real rights:art. 8: mining rights conferred by claims, mining exploration licences, miningleases, mining concessions, etc are immovable real rights.art. 9: every real and immovable mining right constitutes a separate property.

Art. 34, 2nd paragraph, of theAct Respecting the Lands in the Public Domain(p. 54)seems to suggest that the rights granted are not ownership.

Art. 49 of the same act (p. 56) seems to create a real right: although the word lessee isused, there is a direct relationship, and nobody has to give the lessee his/her right.

TheAct Respecting the Lands in the Public Domain governs the concession ofpublic lands to individuals:

art. 26: the Minister shall prepare and keep a public land register (the Terrier),registering every alienation, acquisition, servitude, location or occupation rightas well as every transfer, renewal, and revocation or rights or leases.art. 34: the Minister may sell lands under his authority which form part of the

public domain, and may grant rights in such lands in the same manner.art. 37: the Minister may transfer gratuitously land under his authority by theissue of Letters Patent, for purposes of public utility.art. 38: at the end of 30 years from the date of the Letters Patent, the conditionsand restrictions attached to a gratuitous transfer cease to apply, and the transfer

becomes irrevocable.art. 39: the holder of the Letters Patent must inform the Minister if he wishes touse the transferred land for a purpose other than that specified in the LettersPatent.

art. 47: the Minister may lease any land under his authority.art. 49: the lessee of the land may institute any action or suit against a personoccupying the land illegally or trespassing, and may also recover all damagessuffered.

4) Opposability of Real Rights and innopposability of Personal rights Easily misconstrued

Personal right Not opposable to all creditor may only claim debt from debtor and nobody else Really relates to definition of legal situation Double face of the personal right Debtor and Creditor

Real right relationship with material object and not another person so that it is opposable to everyone Not too

meaningful to say that everyone must respect that right5) Moveable or Immovable Character:

- A real right may be movable or immovable: they deal with corporeal things which are either fixed or not. In order for it be fully effective (if immovable) must be registered or publicized (art 1455, 2934-2938))

- The Personal Right is said by law to be MOVABLE (this is a construction of the law).

6)Preference and Suite : Terre et Simler: Driot Civil: Les biens

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E is creditor of A 1975 F creditor of A in 1980 G creditor in 1996 H creditor in 2002

A becomes insolvent in 2003 None of creditors could prevent A from accumulating new obligations

E, F, G, H will get funds from insolvency proceeds of sale of property will be shared among them as they are all equalcreditors (ordinary creditors)

Now, change situation E is creditor in 1975 F (financed purchase of land by A from X) obtained a hypothec (or guartanee which is a driect relationship b/n

the loaner and the land itself) of 1980 Hypotec must be registered (lets say there were In example for $75,000

G is creditor in 1996 H in 2002

Art 2647 Hypothecs are considered preference Prior claims and hypothecs are the legal causes of preference.

So, say property is sold for $200,000. F will get all $75,000 and the rest will be split b/n E, G, H

Review:A. both types of rights are patrimonial;

B. there is a double face to the personal right (debtor-creditor);C. the nature of the object of the real right is important: it must be specified and material;

D. the number and variety of real rights are limited; andE. the distinction between movable and immovable rights is applied to real and personal rights, with

the law declaring personal rights to be movable.

F. Opposability if Real Rights and the Inopposability of Personal RightsG. Accessory real rights are not property, but legal causes for preference:

S. 4 Intellectual Property

(909, 458, 1612)

A DefinitionCantin Defn: Intellectual rights describes the relationship b/n a person or a subject and a creation or a product of theintellectual activity of that subject

o Permits subject to draw economic benefit from that creation Ghestin rights over immaterial works Baudouin text: From the human spirit

B Object of an Intellectual Right Abstract, immaterial (eg. Idea, process, design, image, expertise, good will) Must not confuse object with the support of that object (may buy a book (physical thing) but do not own intellectual

content)o Ghestin - Distinction made in text: Artist has authorship of photo but not right to the image of the person in

the photo (right to privacy and right to image of the person depicted)

C Characteristics

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It is a Patrimonial right as it does not fit criteria in Art 3 of CCQ

Why are these patrimonial rights at all?

Ghestin noted that the alongside the intellectual rights that the law protects such as copyright, patent, etc.)are MORAL RIGHTS (so-called Droit dauteur) which are extra-patrimonial

Therefore two aspects:

o One is the copyright, right to make money from worko One that doesnt transfer with sale of bookMORAL RIGHTS

1. Right of divulgation: to decide timing when work will be shown topublic

2. Right of withdrawal or repentance: can withdraw from circulation3. Right of paternity or attribution: name used to identify as author4. Right of integrity: work remains in a state in which the author decided

to make it known to the public Even if a copyright is sold, moral rights remain (these are linked to the creator, like personality rights.) These moral rights, according to the Copyright Act, are NON-TRANSFERABLE (seems extra-patrimonial

in nature).

2 aspects therefore seem contradictory: 1) exclusivity (patrimonial in nature); and 2) the moral aspect (outside the patrimony,

and remaining with the creator). This comes from a historical Common vs. Civil difference:

Common more purely commercial Lockean Civil Hegelian view (the artistic work is somehow infused with the creators

personality) gave rise to the Droits DAuteurs. This has been affirmed as not beingdependent upon the legislature as well.

D - Jurisdiction Federal law covers copyright But Federal statutes were based on American Copyright legislation and therefore did not provide for Moral Rights

UNTIL recently when they were incorporated. Art 13(3) of Copyright legislation provides that if the author is an employee, the copyright belongs to the

employer This does NOT come from civilian tradition as in Civil: First titulary is owner of creation Necessarily a physical person

CCQ and provincial law will be applicable if/when the Federal Legislation does not cover certain issues

E Real or Personal Right or a Category on its own?? Real rights have effect on material objects IR not material object (even though there is direct relationship b/n

object and subject of right like IR) Personal rights are b/n two persons IR opposable to all. Therefore Third type of right Ghestin says that the object of this type of right is sufficiently different that they are worthy of their own

classification AND he notes that nothing is gained by labelling them as real rights. But under pressure it seemsthey are closer to real rights.

Case: Diffusion YFB v. Les Disques Gamma

Diffusion YFB inc. v. Les Disques Gamma Lte et Socan [1999] C.S.Facts:

o Artist signed contract in 1996 with Gammawhere Gamma gets royalties on allartists songs to a certain amount.

Decision:o In favour of Gamma The contract between the artist and

DG is valid, and is unaffected by the artists bankruptcy.DG may recover its portion of royalties from songs crated

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S. 5 Observations on the use of Terminology

Right: covers any subjective right, any right that a person may claim or exercise includes personal andproperty (extra-pat and pat)

Property: (fr. Bien not proprit) Includes real rights, personal rights, intellectual rights (patrimonial rights) Thing: Material object, object of a real right or a principle real right.

o In old code was chose now it is bien Ownership: (fr. Proprit one species of property principle real right) Right on a material object (not include

intellectual property) Personal right: (droit de creance) debtor-creditor relation permits a creditor to obtain a prestation (performance

of an obligation) from his debtoro (DO NOT confuse with personality rights which are extra-pat)o Not a personal servitude (dismemberment of real right)

Chapter II: Distinction b/n Movables and Immovables

Art 899 Property, whether corporeal or incorporeal, is divided into immovables and movables(899-904, 956, 2672, 2695, CCP 571, 677)

S. 1 Origin of the distinction and classification

S. 2 Classification in the CcQ -- Comparison b/w Codes

CCQ - GOVERNED BY A FOUR-TIER DISTINCTION:

1. 900903 IMMOVAVBLE THINGS (land, constructions, materials, works)2. 904 IMMOVABLE REAL RIGHTS

3. 905906 MOVABLE THINGS4. 907 - MOVABLE RIGHTS

Immovable

Art 900 Land, and any constructions and works of a permanent nature located thereon and anything forming anintegral part thereof, are immovables.

Plants and minerals, as long as they are not separated or extracted from the land, are also immovables.Fruits and other products of the soil may be considered to be movables, however, when they are the object

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History- The most important distinction historically is movable v immovable Upper Middle Ages feudal in north of Europe Wealth and most legal relationships are organised around the land (as is political power) Very few legal rules pertaining to movables (things of no value) Services rendered through feudal sys. Rare to see personal right. All organised around the immovable Marriage, debt, and minority of heir where there is the greatest risk of immovables transfer from one family to

another Evolution into:

o Movable objects acquire some value (jewellery and books) Brought about declaration of the law.Movables of value become immovable by the law

o Obligation to pay a sum of money (Personal rights) Roman Catholic law prohibited loan withinterest to circumvent, contracts declared to be immovable by the law in order to fall under

protection organised for immovables


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Discussion of attachment to soil Horizontal and vertically This is vertical (poles go horizontally into groud) Leaves open possibility that through aquaduct or power lines going horizontally from building to the ground

eventually might classify as immovable probably wouldnt workFor Immovable

- Those objects that were classified as immovable by nature in old code is now simply an immovable thing

- Construction and work is in the CcQ and was Building in the CCLC- Construction and work must be fixed have an attachment with the soil- Mere weight is not sufficient- Is it necessary that the link with the soil is permanent? Usually, but not immovable by nature.- If immovable is moved, remains an immovable so long as the immovable is going to be incorporated into the soil.

Right of superficie where building is on land owned by another not imporatant

Issue of permanency- In art 900 (work or location that is permanent?)- Duration of incorporation into the soil was not important

Plants- Fruit considered immovable as long as attached to plant and plant being rooted in the soil

MineralsNot in old CCLC as were considered part of land now expressed on its own

Movable

Art 905 Things which can be moved either by themselves or by an extrinsic force are movables.

Other Movable thingsArt 906 Waves or energy harnessed and put to use by man, whether their source is movable or immovable, are

deemed corporeal movables. new article deems energy as being a thing subject to real rightsArt 907 All other property, if not qualified by law, is movable. Includes: Some Real rights, Personal rights,

Intellectual rights

Look to 901 and 903 in CcQ

Art 901 Movables incorporated with an immovable that lose their individuality and ensure the utility of theimmovable form an integral part of the immovable.

Art 903 Movables which are permanently physically attached or joined to an immovable without losing theirindividuality and without being incorporated with the immovable are immovables for as long as they remainthere

Different from CCLC 380 which was much more detailed.

CCLC 380

Those things are considered as being attached for a permanency which are placed by the proprietor andfastened with iron and nails, imbedded in plaster, lime or cement, or which cannot be removed without

breakage, or without destroying or deteriorating that part of the property to which they are attached.(2) Mirrors, pictures and other ornaments are considered to have been placed permanently when withoutthem the part of the room they cover would remain incomplete or imperfect.

- Each of these deal with objects that are movable and by way of these articles the object becomes an immoable.Movables or Immovables as part of a construction or workLook at 901 and 956

Art 956 The owner of an immovable becomes the owner by accession of the constructions, works or plantations hehas made with materials which do not belong to him, but he is bound to pay the value, at the time they wereincorporated, of the materials used.(2) The previous owner of the materials has no right to remove them nor any obligation to take them back.

Elimination of Immovable by Destination

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by Nadeau Nadeau sells house without paying off

furnaceIssue:

Is Furnace considered a movable orimmovable

Decision: For the Plaintiff furnace is part of the

immovable or, another way, is animmovable itself.

both movable and immovable are owned by the same owner But, a movable is considered part of an immovable sil y

est attach de telle sorte quil soit indispensable lexistence ce mme de limmeuble, et que limmeuble nesoit pas complet sans lui

In our climate, a house without a furnace is not complete

Ratio: Sellor of furnace losses rights to the furnace as it has

become an immovable b/c of incompletion of immovablewithout furnace

3 classifications1) Purpose of object but we dont like to revolve around this - prefer to look at attachment or;2) Is immovable complete without object?3) Is it removable without destruction to both object and building (part of the construction and therefore not

movable) incorporation

Difficult to distinguish objects that become immovable by 901 or 903

- Both cases ensure the utility of the immovable- In 901, loss of individuality Not in 903 BUT, not clear criterion as very subjective

- LINK IS THE KEY 901, is incorporation but in 903 there is a junction, a jointure Look at cases ofConstruktekandAxor Look at how judges use old Code, doctrine and jurisprudence as a way to discover how

Case: Construktek

Construktek G.B. inc. v. France Laforge [1998] C.S. QueFacts:

France leaves house owned byboth G.B. and France and takeswith her items such asdishwasher, refrigerator, blindsand curtains.

Issue: Are these items movable orimmovable by destination by oldor new code?

Decision: Kitchen appliances are not

immovable as do not ensure theutility of the immovable

Chandaliers serve the utility of theconstruction without lighting,immovable is incomplete

Reasoning: By old Code (CcLC) were not immovable as were easy to disconnect

and remove (unplug) Kitchen appliances serve not in the utility of the construction but the

utility of the occupant can be removed and the construction willremain complete for fridge and dishwasher

Applies art 901 with respect kitchen appliances Does not fit aswas not incorporated Can easily be removed and immovable is still complete Light fixtures and the like are immovable as they serve in the utility

of the building house without lighting is incompleteRatio:

Physical link required for a movable to become immovable Or, should the object be removed the immovable is incomplete

then the object is immovable Chandelier is considered immovable by 903 and it was property of

the plaintiffNotes:

Odd as there is not application of 901. Used utility which is in both 901 and 903 (by way of 48 of act respecting implementation of reform of CCQ). Base decision of chandeliers on 903 utility and not incorporation by art 901

Case: Axor Construction

Axor Construction Canada Lte v. Lofficier de la Publicit [2002] C.A. QueDes droits de la circonscription foncire de Montral

Facts: The boards of a skating rink in an arena

Reasoning: Majority: Under 903 permanency of physical

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Issue: Issue is whether boards are part of construction

Decision: Skating rink boards are part of the immovable.

Ratio: An arena without boards would be an

incomplete immovable unusable for the endsfor which it was constructed.

Boards are immovable as rink is incompletewithout boards underart 903

attachment is needed which means that the object mustbe attached with the intention of keeping it there for anindeterminate amount of time. Satisfied that proprietorintended to keep boards there for indeterminate lengthof time.

Utility is contrasted with necessity. Utility defined as

the advantageous character of the thing that whichrenders it servable or facilitate usage. Must be a physical link (not intellectual link) Part of the arean underart 903 arena without boards

is incompleteNotes:

There is a description but it does not help to clarify nature of the attachment No discussion of nature of attachment as it might relate to either 901 or 903 There is discussion of distinction in art 48 of reform act that 903 cannot apply to the operation of an enterprise or

the pursuit of activities. Dissent: Sees boards as similar in nature to furniture and must remain movable and are not part of the construction

no real discussion of either 901 or 903 Should have evald under 901 and might have seen that not incorporated but are still attached under 903

Per Axor, the article 903 has 5 conditions :1. The presence of an immovable2. An material attchament or jointure which links the object to the immovable3. The conservation of the individuality of the object and the absence of incorporation4. Un lien demeure a demeure means that the will of the owner of the object was to attach it physically to the

immovable for an indefinite person of time with the intention to use the object as a permanent accessory of theimmovable.

5. A function that assures the utility of the immovable.

With info fromAxor, return toNadeau c. Rousseau Would furnace be considered as part of the construction? The furnace serves the utility of the immovable does not distinguish b/n 901 and 903

Would fit at least into 903

attached to the piping Could it fit under901?

With this info, return toHorn Would the elevator fit into 901 or 903 The elevator serves the utility of the immovable this does not distinguish b/n 901 and 903 It would probably considered under 901 through incorporation

What is at stake when classifying an object as immovable under 901 or 903

o If it is an immovable of the 901 variety, this will consider the object the material of the construction and isdefinitive and cannot be removed until destruction of the building

o Hypothec can not exist solely on this object but only with the building as a wholeo If it were considered under 903 attachment is merely a presumption. This presumption can be rebutted.

Eg. Contract saying no transfer of ownership until paid WILL BE UP HELDo Hypothec can exist on the object itself separate from the buildingart 956 The owner of an immovable becomes the owner by accession of the constructions, works or plantations he

has made with materials which do not belong to him, but he is bound to pay the value, at the time they wereincorporated, of the materials used.The previous owner of the materials has no right to remove them nor any obligation to take them back

art 571 of CC Movables which are immovables by virtue of article 903 of the CCQ can only be seized with the immovable

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of procedure to which they are attached or joined; they may, however, be seized separately by a prior or hypothecarycreditor, or by another creditor if they do not belong to the owner of the immovable

Art 2672 deals with objects considered immovable by 903Art 2672 Movables charged with a hypothec which are permanently physically attached or joined to an immovable

without losing their individuality and without being incorporated with the immovable are deemed, for the

enforcement of the hypothec, to retain their movable character for as long as the hypothec subsists.

OLD CODEImmovable by:

- Nature- Destination- Object to which it attaches- Declaration by the Law

NEW CODEImmovable by:

- Objects (901-903)- Real Rights (904)- Declaration by the law [Art 907 All other

property, if not qualified by law, is movable.]

Chapter III: Other Classifications

S. 1 Capital and Fruit/income

(908-910, 1129-1134, 1139-1141, 1345-1350)

Art 908 Property, according to its relation to other property, is divided into capital, and fruits and revenuesArt 909 Property that produces fruits and revenues, property appropriated for the service or operation of an

enterprise, shares of the capital stock or common shares of a legal person or partnership, the reinvestmentof the fruits and revenues, the price for any disposal of capital or its reinvestment, and expropriation orinsurance indemnities in replacement of capital, are capital.(2) Capital also includes rights of intellectual or industrial property except sums derived therefrom withoutalienation of the rights, bonds and other loan certificates payable in cash and rights the exercise of whichtends to increase the capital, such as the right to subscribe to securities of a legal person, limited partnershipor trust.

Art 910 Fruits and revenues are that which is produced by property without any alteration to its substance or thatwhich is derived from the use of capital. They also include rights the exercise of which tends to increase thefruits and revenues of the property.(2) Fruits comprise things spontaneously produced by property or produced by the cultivation or working ofland, and the produce or increase of animals.(3)Revenues comprise sums of money yielded by property, such as rents, interest and dividends, exceptthose representing the distribution of capital of a legal person; they also comprise sums received by reasonof the resiliation or renewal of a lease or of prepayment, or sums allotted or collected in similarcircumstances.

Capital: The substance of the right

Fruit and Revenue: What is produced by the substance without any (ok, maybe a little) alteration of the substance of theright (ie the capital)

Fruit natural fruit by the land Revenues Former civil fruit money produced, rents, income, interest, dividends, etc. Crucial when in a situation where a use only is granted (right to the fruit/revenue) with only a use of the

substance (capital) usufruct or emphytusis

Distinction comes into play

- usufruct, trust in most cases and leases in some cases- usufructuary may use land for fruit agricultural operations (art 1140)- usufructuary cannot deal with the capital (ie cannot get minerals from ground as is not fruit but rather capital

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- what beneficiaries entitled to under a trust- Note that fruit/ income that is not used becomes capital (909)- E.g. of agricultural animals: if milking cows, capital; if beef cattle reared for sale, fruit.- Apportionment of profit & expenditure: 1345 - 1349 should be read in conjunction with 908 - 910(situations

involving administration of anothers property)

Intellectual rights can give income but:o but you retain your moral right (copy right act)o moral right passes on to the heir (says so in copyright act)

Intellectual rights can be capital or incomeo capital selling your intellectual property for a lump sum (alienation of intellectual rights)o income receipt of percentage of sales of book (no alienation)

S. 2 Fungible / Consumable

(1453(2), 1127, 1128, 1305(2), 2314)

deals with material objects

Fungible: Not determinateMay not be the object of a real right as is not determinate object (cannot be a Volvo unless

identified through specific serial no.) (see Art 1453(2) which says The transfer of a real right in a propertydetermined only as to kind vests the acquirer with that right as soon as he is notified that the property is certainand determinate.

Non-Fungible: Determined object eg. wheat is bought when is separated and determinate

e.g. of Fungible by destination will which gives usufruct of portfolio. Can manipulate the shares, sell (but then mustreplace), losses, gains etc. The Portfolio is considered indeterminate object and manipulation within said portfolio is allowed.

Consumable:

- Disappears on first use- Impossible for their to be a usufruct as usufruct must maintain object. Not possible. Usufructuary will be viewed as

owner with obligation to hand over value of object at the end of usufruct quasi-usufruct- Art 1127 re consumability and usufruct

Non-Consumable:- Does not disappear after one use- Could deteriorate over time with lots of use gradually loses its value- Usufructuary and the latter1128 (eg furniture and car normal use and then either hand back in condition or,

if disappear, not hand back at all. No obligations)

S. 3 Things in Commerce, res nullius, res communes

(913-914, 916, 934-946, 1212-1217, 2876)

A. Things in Commerce

Art 2876 That which is not an object of commerce, not transferable or not susceptible of appropriation by reason of itsnature or appropriation may not be prescribed

Property in commerce: property that is alienable. (patrimonial rights are alienable and transferrable while extra-partrimonialrights are inalienable)

General rule in civil law is alienability of property. Clauses stipulating inalienability are of an exceptional nature,can only exist within a gratuitous K(inot in a K of sale). Gift or will.

Art 1212 (1) No restriction on the exercise of the right to dispose of property may be stipulated, except by gift or will. Property can be made inalienable by statute. example, cultural property act. (it is not absolute

inalienablity, permission must be obtained from minister to inalienate property)

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B. Res nullius: Things which can be appropriated, but which belong to no one. Divided into 3 categories:1. Things which have never been appropriated e.g. fish in the sea Art 9342. Things which have been abandoned by their owner e.g. a treasure (art 938)3. Things which have been lost or forgotten.

Art 915 Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose.Art 935 A movable without an owner belongs to the person who appropriates it for himself by occupation.(2) An abandoned movable, if no one appropriates it for himself, belongs to the municipality that collects it inits territory, or to the State.

Art 936 An immovable without an owner belongs to the State. Any person may nevertheless acquire it by naturalaccession or prescription unless the State has possession of it or is declared the owner of it by a notice of thePublic Curator entered in the land register.

C. Res communes: Things which cannot be appropriated (neither by the individual nor by the State), since their use iscommon to all. 913 C.C.Q. affirms this.

Water, air are traditional examples. (also intellectual works after the expiration of the droits dauteur) Implies that no one can prevent others from using these objects.

As a matter of public policy, State has a power of administration (not a right of ownership) over the rescommunes. This derives from its duty to promote the common good.

- 585 CCLC, the res communes was defined as things with no owner and common to all. Less precise, things manyNOT be appropriated.

- 951(2) Ownership of the soil carries with it ownership of what is above and what is below the surface. How doesthis sit with the notion of air as res communis?

S. 4 Legal Characterisation of Water

(913, 919, 920, 951, 980-982)

Keep the water separate from the water course (art 920) and riverbed

- Interest in the water here.- Art 919 bed and banks belong to state if navigable and floatable

Art 913Certain things may not be appropriated; their use, common to all, is governed by general laws and, incertain respects, by this Code.(2) However, water and air not intended for public utility may be appropriated if collected andplaced in receptacles.

Commentairedu ministeron Art. 913

The first line of this article is inspired by article 585 from the Civil Code of Lower Canada. The second linecreates an exception to the principle of the first line, looking to cover the cases such as those of mineralwater or of compressed air.

CCLC 585 There are things which have no owner and the use of which is common to all. The enjoyment of these isregulated by laws of public policy

- Rights to water is limited to use (cannot appropriate or sell)

- Look at way fresh water may be found in nature Art 913:When is it not intended for public utility? Problematic

- Eg. Look to mineral water companies permits to draw from underground source art 913 provides for this- In principle, state does not have capacity to give permit for commercial exploitation of running water, unless water

could be characterized as being on state land.- Note if a state wanted to use water for public consumption located on someones land. It would have to appropriate

the land.1) Water course (lakes rivers)

In code: art 981-982:

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Seen as res communis SeeMorin v. Morin

Art 981 A riparian owner may, for his needs, make use of a lake, the headwaters of a watercourse or any otherwatercourse bordering or crossing his land. As the water leaves his land, he shall direct it, not substantiallychanged in quality or quantity, into its regular course.(2) No riparian owner may by his use of the water prevent other riparian owners from exercising the same

right.

2) Spring or completely enclosed within landArt 980 An owner who has a spring on his land may use it and dispose of it.

(2) He may, for his needs, use water from the lakes and ponds that are entirely on his land, taking care topreserve their quality.

980: Owner with a spring on his land may use it and dispose of it (Cumyn thinks this does not mean sell, but this is only an argument). Is it res communis or appropriated? Some say ownership of water

2nd para He may, for his needs, use water from the lakes and ponds that are entirely on hisland, taking care to preserve their quality.

May use it and preserve quality and quantity sounds like art 981 This water is not being characterized as part ofres communis. However, Art 982 is then

confusing: says that owner may require the destruction/ modification of works to prevent waterfrom being polluted or used up.

May be that 982 would allow one well owner to object to actions of neighbouring owner who isunduly depleting supply.

Art 982 Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water,underground stream or any running water may, to prevent the water from being polluted or used up, requirethe destruction or modification of any works by which the water is being polluted or dried up.

3) Underground water Not anything in code Water is interconnected to fresh water wherever it is found

Sheer notion of common pond extending underground across several properties suggests that onesuse should not interfere with anothers. Note though Art 951 State has right in mines, sheets of water and underground streams. A

puzzling addition from whence does the right derive?Cantin: Must be limits to these riparian rights; suggests limiting it to use of water for service of property. Commercial usewould then be deemed excessive.

Cantin Cumyn, L'eau, chose commune: un statut juridique confirmer

i. Le statut juridique de l'eau souterraine, en particulier, represente aujourd'hui un enjeu economique et social majeurs,alors son captage des fins de commercialization est envoie de devenir une activit conomique de plus en plusconvoite et quen mme temps les citoyens prenne graduellement conscience de son caractre vital pour la collectivit

qui en depend.ii. Il est de tradition, en droit civil, de considerer que leau et lair sont des choses communesiii. CC est en dsaccord avec les deux propositions suivantes: on pretend souvent que leau de source, qui nest pas la

tte dun cours deau, et leau faisant partie dun lac ou dun tang situs sur un seul fonds chappent la qualificationde chose commune et appartiennent en proprit exclusive au propritaire du fonds. (article 980 CcQand 502 CcBC) Certains vont plus loin encore et assimilent leau souterraine la source: puisque la source appartient, selon eux, au

propritaire du fonds, il en irait de mme de leau souterraine qui lalimente.iv. Eau comme res communis

1. tre res communis, ca veut signifier tre la fois inapproprie et inappropriablev. Les droits individuels dutilisition de leau soit pour besoins dits ordinaries, besoins alimentaires ou autres fins

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domestiques et lexploitation agricole dun fonds ne sont pas intrinsquement lies la proprit dun fonds. (article980 CcQ, 503 CcBC)

vi. Ltat joue un role de protecteur de lintrt gnral.1. Leau a une nature fondamentalement diffrente de celle des resources naturelles minerals avec lesquelles

on a malencontreusement frquemment tendance lassimiler. Les mines font lobjet dun droit deproprit de ltat ou des particuliers.

2. La regle qui privelegie le propritaire du fonds en excluant aux tiers l'utilisation d'une source d'eau, il estimplicite que cette eau a un faible debit et que le droit d'utiliser la source par un tiers auturiserait uneatteinte trop importante au droit de propriete de fonds.

vii. Il ny a pas de base scientifique qui justifie une distinction juridique entre eaux de surface et les eaux souterrainesCopmte tenue de ces donnes et de labsence dune determination lgale expresse du status des eaux souterraines, ilserait inadmissible que lanalyse juridique ne se fonde pas sur la nature des choses. Cette nature dicte au droit dedonner la mme qualification de chose commune pour les eaux souterraines et les eaux de surface.

viii. Larticle 913 du Code recommait que leau doit tre reconnuecomme chose commune, nimporte sa forme.

Case: Morin v. Morin

Morin v. Morin [1998] C.A. QueFacts:

JC Morin buys land and floods part of it from 2rivers and an underground source creates lacMorin

Marc Morin buys property on side of lake and startsto use lake

Lake is considered ni nanvigable, ni flottable JC ownes bed of lake Marc puts in floating dock, swims, boats. JC claims, as owner of the bed, sole right to use lake

Issue: Does owning bed of lake stop others from using

lake riparian owners access issues

Decision:

Rights to use water cannot be owned. JC retainsfishing rights, though.Reasoning:

Water as common property (art 913 and 920) Allows for access and usage of water for

recreation (eg canoe)Ratio:

This decision clarifies water in any type ofwater course is res communis even if state does notown bed or if not navigable or floatable

Clarifies allowance for usage of common water forrecreation and sport. Water is common

Notes: Only thing that limits use is fishing which depends on the owner of the bed JC Morins thesis would indirectly imply the recognition of temporary property of water as a result of private water

beds. The accumulation of water over the land of an individual would give that individual more rights than thoseof the riparian owners, rights so extended that they would exclude those of others. This would make water a

private, rather than common, thing.

Musings: is it possible for someone to make a commercial exploitation of water? A categorization of water as a rescommunis assumes that it cannot be appropriated (s. 913). First you have to ask what s. 913(2) means. Is it restricted to acertain kind of water- like mineral water? And does appropriation in this context still limit that to personal consumption?Look at the degree of appropriation relative to each body of water. One argument is that it may be possible if it does notinterfere with the rights of other owners, thereby not violating 981. Egs. Underground water is appropriated as part of land,

the water body may be found wholly on your land. Counterarguments: is not likely with respect to lakes and ponds ascommercial use is not a NEED as per s 980(2) - here it appears that rights are limited to to use and service of land, otherwisego beyond the rights of others. Need to be equal rights. 980(2) introduces an element that not there before. Commercialexploitation is probably not possible for running water (981) without legislative change, but appears more viable wrtunderground water (951). What about springs found entirely on your land, which you can own, use and dispose of ? (981)

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In 1760, with the pass to Great Britain, the system did not change and free and common socage was seen as theequivalent to enfranc aleu

Abolition of the Seigneurial System

Soon after cession, Brits decided to begin to eliminate Seigneurial System. (perMarler) Acts were then passed enabling acensitaire to make an agreement with his seignior to commute his feudal dues and services for a lump sum, converting the

tenure of his land to that offranc aleu roturier. These acts were ineffective and in 1854, the Consolidated Seigniorial Actwas passed, allowing censitairesto hold theirland infranc aleu roturier, free and clear of all feudal and seigniorial duties and charges except the redeemable constitutedrent(substituted for all seigniorial duties and charges). Process was called Commutation processus de la commutation

Each title was dealt with separately:a) the seigneur became the OWNER of all lands not previously granted to the censitaire.

All obligations to the Crown disappeared;b) the censitaire became the full owner of land granted to him. Of the 5 obligations to the

seignior, 4 were abolished (with the Crown compensating the Seignior for the valuethereof) and the rent was transformed a capital sum had to be paid. (In a block or ininstalments or just in the form of interest until full payment.) (NB. Not the value of theland but the value of the obligation of the cens et rente due to the seigneur Constituted

rents were guaranteed by hypothec on land)c) The Crown no longer had a claim over lands held by others.d) By the effect of the Act, all other lands fell underfranc aleu/free & common socage.

1854:An Act Respecting the General Abolition of Feudal Rights and Duties Whereas it is expedient to abolish all Feudal Rights and Duties in Lower Canada, whether bearing

upon the Censitaire or upon the Seignior, and to secure fair compensation to the latter for everylucrative right which is now legally his; And whereasit is expedient to aid the Censitaire in theredemption of the said charges:

art. 30 : every Censitaire shall hold his land in franc aleu roturier, free and clear of all feudal andSeigniorial duties and charges except theRente constitue substituted therefor.

art. 30(2) : every Seignior shall hold his domain and the unconceded lands in his Seigniory in franc aleu

roturier, free and clear of all feudal dues or duties to the Crown or any SeigniorDominant. art. 59 : no lands held in Free and Common Socage or en franc aleu roturier shall be charged with anyperpetual irredeemable rent. Whenever rent is so stipulated, it may be redeemed on payment of thecapital calculated at the legal rate of interest.

art. 60 : none of the foregoing provisions apply to the wild and unconceded lands in Seigniories held bythe Crown in trust for the Natives.

the rentes constitues provided for in article 30 were themselves the object of statute in 1935. TheSeigniorial Rent Abolition Actorganised a process for their gradual abolition.

Note Exceptions from the Act in Art 60: lands conceded to natives.

S. 2 Permanent Consequences of abolition of tenure system

1) Prohibition to recreate directly or indirectly a system of tenureo Indirectly, including clauses in deeds of transfer of land, charging the acquirer of land to perform

obligations (eg. services)o Impact on how we define Real Servitude as not an obligation to do but a relationship b/n two pieces of

lando (It is mostly indirectly that this would happen. See arts. Art1177 & 1178 regarding servitudes.)

2) Prohibition to have perpetual rents & Prohibition of perpetual Leaseo Rents: Max duration of 100 years (art 2376) (defn K of rent or annuity art 2367)o Lease: for a certain time which ultimate limit might be 100 years (art 1880)

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3) Ownership is ultimate title and is perpetual. Nobody above the ownero It is incommutableo Defn of ownership at CcQ 947 and CcLC art 406o Should crown want land, must expropriate and paid for (art 952)o Special law (art 917) allows for confiscation but must be gained through specific statute

4) Type of Ownership

o Only one type of owners

334-Cantin Cumyn Civillawproperty Fall2004

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