CIVIL CODE

QUEBEC CIVIL CODE

The Civil Code of Quebec (CcQ) is the legal text defining civil laws in the province of Quebec, Canada.

Except for certain parts of the book on the Law of the Family which was adopted by the National Assembly in the 1980s the CCQ came into effect on January 1, 1994.

It replaced the Civil Code of Lower Canada (Code civil du Bas-Canada) enacted by the Legislative Assembly of the Province of Canada in 1865 which entered into force July 1, 1866.

History of the Civil Code of Quebec

During the French Colonial Era

From 1608 to 1664 the first colonists to New France continued to follow the law of their origin, i.e. the custom (or la coutume in French) that was in force in the province of France whence the colonists came.

In 1664 the French King decreed in "l'edit d'etablissement de la compagnie des Indes occidentales" (art. XXXIII) that la Coutume de Paris was applicable throughout New France. Also added was "le droit francais de la metropole".

This included various royal legislation, royal ordinances ("ordonnances royales"), canon law for marriage and roman law for the law of obligations (les obligations, i.e. contracts and delicts).

Also applicable were the ordinances of the Royal Intendants ("les ordonnances des intendants") and the decisions of the Conseil souverain ("les arrets de reglement du Conseil souverain").

As this Edict was applied the Royal Intendant was responsible for the justice in the colony and lawyers were not allowed to practice in the colony.

Most disputes were resolved by local notaries or the local parish priests by arbitration in a manner much as had been done in ancient Rome.

While there were many seigneuries in New France and under French feudal law the lords of these jurisdictions had judicial powers (high and low jurisdiction), those grants by the French crown never included a grant of high (capital crimes) or low (minor offences) jurisdiction as those powers were reserved for the Intendant.

Low jurisdiction was a manner in which some local disputes could be resolved by the local seigneur according to his whim, even that power was reserved for the Intendant in New France.

Thus while the Custom of Paris was the law of New France there was little mechanism for actually enforcing that law available to the residents of the colony.

Under the British Empire

Following France's abandonment of Quebec in favour of Guadaloupe in the Treaty of Paris (1763), Quebec came under British law.

However, the seigneurial system of land tenure continued to be applied uniformly throughout the province.

In 1774 the British Parliament passed the Quebec Act which restored the former French civil law, while maintaining British criminal law.

As a result, the colony, later known as the Dominion of Canada, is today one of only a handful of "bijural" countries in the world where two legal systems co-exist.

The Act was not acceptable to the British minority who believed that British citizens should be governed by English law.

The Constitutional Act of 1791 resolved the issue by the creation of Upper Canada west of the Ottawa River and Lower Canada around the St. Lawrence River.

The result gave British Lower Canada, with its majority French speaking populace, its civil law and English law was applied to British Upper Canada.

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 in Lower Canada.

The work of the Commission on codification was also inspired by some of the modernizations found in the 1804 Napoleonic code.

The structure of the Code was also inspired by the Napoleonic code.

At the time of Canadian Confederation for the Province of Quebec the Civil Code of Lower Canada replaced most of the laws inherited from the "Customs of Paris" (La Coutume de 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 du 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.

The Civil Code Revision Office was then established.

Consultations were held on the reports produced by the Office and the committees which were subsequently incorporated into a final report tabled in the Quebec National Assembly in 1978 in the form of a Draft Civil Code with commentaries.

Extensive consultations occurred during the 1980s when certain parts of the Book on the Law of the Family were adopted.

That process of consultation was completed in the early 1990s and the CCQ was passed into law on December 8, 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 a Bill entitled A First Act to harmonize federal law with the civil law of the province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law.

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.

The philosophy of the new code is made clear in its preliminary provision:

The Civil Code of Quebec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication.

In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.

Given its central place in the legal system, the current Civil Code is regularly amended several times every year in order to reflect the evolution of the society.

Recent amendments to the Code include a provision for civil union allowing unmarried and same sex couples the opportunity to benefit from legal recognition despite their unmarried status.

The Civil Code of Quebec is nothing more than a huge provincial statute or law.

As such, it was subjected to a complete overhaul by the Quebec government in the late eighties. The reform took years but culminated in a new Civil Code which went into effect on January 1, 1994.

The Civil Code is divided up into ten "books" as follows:

Persons (basic individual rights of each person such as the right to refuse medical treatment, privacy, children's rights, names and civic registries, domicile and residence rules and incapacity of persons such as by age or mental infirmity.

The Family (parentage, marriage, matrimonial property, legal separation and adoption).

Successions (wills, estates, probate and inheriting).

Property (moveable and immoveable property, possession, neighbourhood nuisances, land boundaries, right-of-way, condominium ownership and the rules on the administration of the property of another).

Obligations (This book is packed and is subdivided into chapters on topics such as contract law including rules for failure to perform an obligation and civil liability ("tort") rules for compensation for a wrong caused outside of a contractual obligation, sale of goods, leasing, gifts, transportation of goods, employment contracts, partnerships, loans and insurance).

Hypothecs (the Quebec Civil Code unusual word for "mortgages" and the sale of land or "immoveable" property).

Evidence (who has the burden of proof and how certain things can be proven under Quebec law).

Prescription (the Quebec Civil Code word for "statute of limitations". This Book discussed how rights or obligations can be extinguished or acquired by the mere passage of time or "prescription").

Publication of Rights (This book deals mainly with the registration process on property, mainly immoveable property such as buildings).

Private International Law (Rules for solving legal problems which involve laws, property or people residing in, or from another state).

Samples from the new Civil Code:

Article 153. Full age or the age of majority is eighteen years. On attaining full age, a person ceases to be a minor and has the full exercise of all his civil rights.

Article 1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person and is liable to reparation for the injury, whether it be bodily, moral or material in nature. He is also liable, in certain cases, to reparation for injury caused by the act or fault of another person or by the act of things in his custody.

A concise, easy to understand and portable code of laws. Codification is growing in popularity.

Although preferring to contain their laws into separate entities by subject matter, all Canadian provinces have codified vast amounts of their law in multi volume sets of statutes.

The federal government has followed suit and in fact, Canada benefits from a single, national Criminal Code.

Links

Civil Code of Quebec

Canadian Legal info Institute