Civil Code of Quebec

Civil Code of Quebec

The Civil Code of Quebec (CCQ, French: Code civil du Québec) is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s. It replaced the Civil Code of Lower Canada (French: Code civil du Bas-Canada) enacted by the Legislative Assembly of the Province of Canada in 1865, and which had been in force since July 1, 1866.

Contents

Scope of the Civil Code

The Code's scope is summarized in its preliminary provision:

The Civil Code of Quebec, in line with the Charter of human rights and freedoms and the general principles of law, governs people, their relationships with one another, and property.

The Civil Code is in essence a body of rules and regulations that, in all matters treated by or in the spirit or vein of its provisions, sets forth the jus commune, or the law that applies to all of Quebec, either in express or implied terms. For the matters handled by the Code, it acts as the foundation of all other adjacent laws, although other laws may supplement the Code or make exceptions to it.

As the cornerstone of Quebec's legal system, the Civil Code is frequently amended in order to keep in step with the demands of modern society.

The Civil Code of Quebec comprises over 3,000 sections and is structured into major divisions and subdivisions called books, titles, chapters and subsections. The Code is made up of ten books:

  1. Persons
  2. The Family
  3. Successions
  4. Property
  5. Obligations
  6. Prior Claims and Hypothecs
  7. Evidence
  8. Prescription
  9. Publication of Rights
  10. Private International Law

History of the Civil Code of Quebec

French Colonial Era

From 1608 to 1664, the first colonists of New France followed the customary law (French: coutume) in effect for their province of origin in France. In 1664, the King of France decreed in Article 33 of the decree establishing the West India Company[1] that the Coutume de Paris would serve as the main source of law throughout New France. Later, authorities went on to add le droit français de la métropole, that is, French law. This included royal decrees and ordinances (ordonnances royales), canon law relating to marriages, and Roman law relating to obligations, e.g. contracts and torts. Also in force were the ordinances issued by Royal Intendants (ordonnances des intendants) and the orders and judgments handed down by the Conseil souverain.

The Royal Intendant was responsible for administering justice in the colony, and lawyers were barred from practicing in the colony. Most disputes were resolved by local notaries or local parish priests through arbitration in a manner much as had been done in ancient Rome. While the reliance on feudal French law meant that New France was divided into fiefs (seigneurie), the feudal lords (or seigneurs) were not entitled to the same judicial discretion in New France as they had in France; as it was, all criminal jurisdiction went to the Intendant. Therefore, while the Custom of Paris was the law of New France, there was few resources available for colonists to actually enforce that law.

Under the British Empire

Following France's relinquishment of Canada in favour of Guadaloupe in the Treaty of Paris (1763), Canada came under British law. However, the seigneurial system of land tenure continued to be applied uniformly throughout the province. In 1774, as a result of a ruling by the British courts in Campbell v Hall about the status of legal systems found in acquired territories, the British Parliament passed the Quebec Act which restored the former French civil law for private law while keeping and reserving English common law for public law including criminal prosecution. As a result, modern-day Quebec is now one of only a handful of bijuridical jurisdictions in the world where two legal systems co-exist.

The Quebec Act was opposed by the English minority who believed that British citizens should be governed by English law. The Constitutional Act of 1791 resolved the dispute through the creation of Upper Canada west of the Ottawa River (subject to English common law) and Lower Canada around the St. Lawrence River (where civil law was maintained).

Adoption of the Civil Code of Lower Canada

The substantive law of the 1866 Civil Code of Lower Canada was derived primarily from the judicial interpretations of the law that had been in force to that date in Lower Canada. The work of the Commission on codification was also inspired by some of the modernizations found in the 1804 Napoleonic code. At the time of Canadian Confederation, the Civil Code of Lower Canada replaced most of the laws inherited from the Custom of Paris and incorporated some English law as it had been applied in Lower Canada such as the English law of trusts. The former Civil Code was also inspired by the Louisiana Civil Code, the Field Code movement in New York and the law of the Canton de Vaud.

The Revised Civil Code of Quebec

In 1955, the Government of Quebec embarked on a reform of the Civil Code with the passage of the Act respecting the revision of the Civil Code (Loi concernant la révision du Code civil) .The Civil Code Revision Office was established, which produced reports, held consultations, and presented a Draft Civil Code with commentaries to the Quebec National Assembly in 1978. After further consultations during the 1980s, portions of the Book on the Law of the Family were adopted. The consultation process continued through to the early 1990s, and the Civil Code of Quebec was passed into law in its entirety on December 18, 1991, coming into effect in 1994.

The Government of Canada undertook a review of all federal laws that deal with private law to ensure that they took into consideration the terminology, concepts and institutions of Quebec civil law and on January 31, 2001, tabled the Federal Law—Civil Law Harmonization Act, No. 1. This bill was passed by the Parliament of Canada and received Royal Assent on May 10, 2001. The follow-up Federal Law—Civil Law Harmonization Act, No. 2. was passed by Parliament and received Royal Assent on December 15, 2004.

The reform process that led to the replacement of the Civil Code of Lower Canada by the Civil Code of Quebec was one of the largest legislative recodification undertakings in any civil law jurisdiction.

The Civil Code of Quebec was a complete restatement of the civil law in Quebec as of the date of its adoption, including judicial interpretation of codal provisions that include broad privacy and personality rights protection and the adoption of a section on the patrimony of affectation.

Notes

  1. ^ Original in French: l'Édit d'établissement de la compagnie des Indes occidentales

References

  • MJQ."A Short History of the Civil Code Reform", in Ministère de la Justice du Québec Web site, January 19, 2006
  • Dept. of Justice Canada (1999). The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism: Collection of Studies, Ottawa: Dept. of Justice Canada, 1036 p. ISBN 2-921290-12-X
  • Young, Brian J. (1994). The Politics of Codification: The Lower Canadian Civil Code of 1866, Montreal: McGill-Queen's Press, 264 p. ISBN 0773512357 (preview)
  • Franklin, Martin (1984). Introduction to Quebec Law. 3rd edition, Toronto : Copp Clark Pitman, 362 p. ISBN 0773042903 [1st ed. 1972]
  • Raymond A. Landry, Ernest Caparros, ed. (1984). Essays on the civil codes of Québec and St. Lucia, Ottawa: University of Ottawa Press, 400 p. ISBN 0776621149
  • Castel Jean-Gabriel (1962). The Civil Law System of the Province of Quebec: Notes, Cases, and Materials, Toronto: Butterworths, 613 p.
  • Surveyer, Edouard Fabre. "The Civil Law in Quebec and Louisiana", in Louisiana Law Review Vol. 1, Pages 649-664. May, 1939
  • Walton, Frederick Parker (1907). The Scope and Interpretation of the Civil Code of Lower Canada, Wilson & Lafleur, 159 p.
  • McCord, Thomas (1866). Synopsis of the Changes in the Law Effected by the Civil Code of Lower Canada, Ottawa : G.E. Desbarats, 39 p. (online)

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