scholarly journals Le régime primaire dans le nouveau Code civil du Québec : quelques remarques critiques

2005 ◽  
Vol 22 (2) ◽  
pp. 325-336
Author(s):  
Ernest Caparros
Keyword(s):  
Civil Code ◽  
Household Work ◽  
Lower Canada ◽  
Judicial Intervention ◽  
The Family ◽  
Civil Code Of Quebec ◽  
Mutual Obligation ◽  
Code Civil

The author points out, in the introduction, that the reform introduced by Bill 89 is limited to one of the nine Books that the new Civil Code of Québec will have, and that even in this Second Book only 151 articles are in force. He then studies the contribution of the spouses to the needs of the family as regulated by the new provisions: the mutual obligation to contribute is now imposed by law. The autor regrets that the new Code restricts the concept of contribution in the form of work to household work. He underlines that the solidarité aimed at by the new provisions may be jeopardized by the continued application of rules from the present Civil Code of Lower Canada. As for the protection of the family residence, the author indicates how this protection is in some cases very limited and questions the efficiency of the formalities required. He also regrets that the new provisions concerning the fate of the family residence at the end of the cohabitation have not been put in force yet. Finally, he criticizes the provisions concerning judicial intervention in family matters.

scholarly journals Les lignes de force de la Loi 89 instituant un nouveau Code civil et portant réforme du droit de la famille

2005 ◽  
Vol 22 (2) ◽  
pp. 297-307
Author(s):  
Marie-José Longtin
Keyword(s):  
Family Law ◽  
Family Relations ◽  
Civil Code ◽  
Self Determination ◽  
Law Reform ◽  
The Family ◽  
Civil Code Of Quebec ◽  
Mandatory Rules ◽  
Code Civil

The family law reform is based upon several principles among which the legislation seeks to create a certain balance. The new legislation approaches the question of that balance under four themes : 1. The equality between man and woman - an equality sometimes intruded upon in order to protect one of the spouses or to strengthen his or her self-determination ; 2. the spouses' freedom to arrange their family relations as they see fit, but a freedom limited by several mandatory rules in order to ensure a greater measure of equality for each ; 3. the equality between children regardless of the circumstances of their birth or their form of filiation - an equality strengthened by rules devised to protect their interests ; 4. the increased intervention of the judiciary authaurised mostly for promotive self-reconciliation by the parties. The following comments try to illustrate how these four principles are embodied in book two of the Civil Code of Quebec, book which must be construed according to the Legislator's expressed view for overriding equality, simplicity and flexibility.

scholarly journals Specific Performance in the Civil Law: Mediating Between Inconsistent Principles Inherited from a Roman-Canonical Tradition via the French Astreinte and the Québec Injunction

2019 ◽  
Vol 24 (4) ◽  
pp. 515-554
Author(s):  
George Vlavianos
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Roman Law ◽  
Classical Period ◽  
Court Order ◽  
Lower Canada ◽  
Specific Performance ◽  
Contractual Obligations ◽  
Substantive Law ◽  
Code Civil

Traditionally, inexecution of a contractual obligation in the civil law gives rise to an award in damages. This principle stems from Roman law of the classical period, which held to the maxim Nemo praecise cogi potest ad factum. In the post-classical period, however, the influence of ecclesiastical courts and the Christian notion of fidei laesio imposed itself on the classical pre-eminence of damages. Consequently, contractual obligations were often specifically enforced by secular courts based on the pacta sunt servanda doctrine of the canon law. Yet damages and specific performance, it is argued, are from the outset conceptually irreconcilable remedies. The full import of the nemo praecise principle prohibits all acts compelling the debtor to perform, whether such compulsion be physical or one of conscience. Pacta sunt servanda, on the other hand, maintains that that which has been promised should be performed, by force if necessary. In France, the mechanism of astreinte — a comminatory fine imposed on the debtor upon his failure to comply with a court order — is used to specifically enforce contractual obligations. This is done despite the fact that execution in kind is not expressly sanctioned by the Code civil. In Québec, courts have been slow to acknowledge the suitability of specific performance in the context of contractual obligations. The source of such hesitation is codally rooted, as the Civil Code of Lower Canada, in terms similar to the French Code civil, enunciates the supremacy of damages at article 1065. But this situation will change with the arrival of the new Civil Code of Québec. With this reorientation of the substantive law, Québec courts will be procedurally better equipped to enforce specific performance than their French counterparts. In essence, via the injunction, a court may physically compel a recalcitrant debtor. Despite its common law origins, the author contends that the injunction is not incompatible with the law of obligations in Québec. Any perceived incompatibility in the realm of contract law arises from the initial irreconcilability of damages and specific performance.

scholarly journals Testing the Origins of the Family Patrimony in Everyday Law

2005 ◽  
Vol 36 (4) ◽  
pp. 795-841 ◽  
Author(s):  
Nicholas Kasirer
Keyword(s):  
Legal Status ◽  
Civil Law ◽  
Civil Code ◽  
Legal Order ◽  
Property Law ◽  
Sociological Study ◽  
Married Life ◽  
The Family ◽  
Civil Code Of Quebec ◽  
A Share

This essay seeks to reevaluate the origins of the family patrimony by challenging the idea that the provisions introduced into the Civil Code of Québec in 1989 amounted to new law. The family patrimony is not simply a statutory trust borrowed maladroitly from Ontario, nor does it reflect a moral postulate that, prior to 1989, had no legal status. It may be argued, in advance of sociological study, that the family patrimony should be understood as reflecting customary norms that were already present in the Quebec legal order at the time of its enactment. Where wealth is accumulated by the spouses during the period that marriage is lived as a joint economic endeavour, rules of everyday law may require the sharing of certain property without regard to which of them has formal title thereto. These customary norms, obscured doctrinally by a modern disinclination among jurists to look beyond state-made law and its adjuncts in the regulation of married life, are potent sources of family property law. Once the manner in which everyday law complements the formal law of matrimonial property is made plain, it becomes apparent that the claim to a share of the family patrimony is not, in fact, a break with tradition in Quebec's Civil law of family property.

scholarly journals Alive and Kicking — The Story of Lesion and the Civil Code of Québec

2011 ◽  
Vol 51 (2) ◽  
pp. 445-465
Author(s):  
Kerianne Wilson
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Social Climate ◽  
Lower Canada ◽  
Civil Code Of Quebec ◽  
The 1950S

Québec civil law had excluded lesion between majors entirely from the Civil Code of Lower Canada. The changing social climate of the 1950s and 1960s and the accompanying popularity of the philosophy of contractual justice set the stage for the Civil Code Revision Office and a dramatic reversal of the place of lesion in Québec law. But this expectation came to nothing as lesion between majors was, for all intents and purposes, excluded from the Civil Code of Québec. In recent years, however, the judiciary has used other means, namely abusive clauses and economic error, to reach the same end to a large extent. The result is desirable, but the legitimacy of this initiative remains controversial.

scholarly journals Couvrez cette communauté que je ne saurais voir: Equity and Fault in the Division of Quebec’s Family Patrimony

2018 ◽  
Vol 25 (4) ◽  
pp. 569-603 ◽  
Author(s):  
Nicholas Kasirer
Keyword(s):  
Common Law ◽  
Civil Code ◽  
Judicial Discretion ◽  
Unjust Enrichment ◽  
Unequal Division ◽  
The Family ◽  
Civil Code Of Quebec ◽  
The Law ◽  
Matrimonial Law

An inquiry into the role of fault in divorce may be taken as an invitation, for the Quebec jurist, to evaluate the place of misconduct in petitions for unequal “partition'' of the family patrimony. The author proposes an analysis of article 422 of the Civil Code of Québec based on a comparison with the law of family property in common law Canada. He observes a disinclination, felt in Quebec legal circles, to explore the connections between recourses under Quebec law for unjust enrichment in marriage and parallel remedies in common law. Basing himself principally on a review of rules similar to article 422 in Ontario law, he contends that a court should not allow ordinary measures of spousal misconduct to influence petitions for the unequal division of the family patrimony. Connecting the family patrimony to the statutory remedies for unjust enrichment in Ontario matrimonial law reveals a narrow idea of economic fault that underlies the judicial discretion at article 422 C.C.Q.

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