Civil Code

Civil Code

Unlike an Administrative Code, Criminal Code or Code of Civil Procedure, a Civil Code expounds only on matters of private law; eg, the legal attributes of the human person (name, domicile, age of majority), the key elements to an individual's relationship with others (marriage, filiation, parental authority, support obligations) and with property (ownership, possession, accession, prescription), and the main legal institutions within which these relationships must, or may, be pursued (successions, gifts, wills, contracts, delicts, sales, leases, mandates, partnerships, hypothecs). A Civil Code sets out the organizing concepts, transcendant principles, directory rules and animating ideals of a legal tradition in a nontechnical style and vocabulary. It has a central symbolic role in a society and for this reason is often described as a "social constitution." In codified legal systems, ordinary statutes covering private law matters are to be avoided. Further, by contrast with uncodified systems, judicial decisions are not conceived as setting down the law.

Today Quebec has two Civil Codes, the 1993 Civil Code of Québec, and the 1866 Civil Code of Lower Canada, which remains in force to the extent of federal jurisdiction under the Constitution Act of 1867 - notably in relation to marriage, interest and insolvency. The 1866 Code was the fruit of a Codification Commission created in 1857 to consolidate, in a bilingual statement, all civil laws in Canada East. For doctrine, the commissioners relied heavily on the works of the great French jurist Pothier, to a lesser extent on various commentaries on the Code Napoléon and occasionally upon the text of the Louisiana Civil Code. They derived the majority of the Code's rules from the Custom of Paris, brought to New France in 1663.

The Code also contains rules drawn from several French royal ordinances and from the edicts and decisions of the Sovereign Council of New France prior to 1763. Various principles of common law, introduced either by the Quebec Act of 1774 or by statutes of Lower Canada or the Province of Canada enacted between 1791 and 1866, were also included in the codification. For form, the commissioners adopted the model of the 1804 Code Napoléon, the 3 books which were entitled Of Persons; Of Property and Ownership and its Different Modifications; and Of the Acquisition and Exercise of Rights of Property. To these they appended a fourth, dealing with commercial law. Despite its eclectic sources the dominant themes of the Civil Code closely reflected the values of 19th-century Quebec - moral authoritarianism, philosophical individualism and economic liberalism.

Since 1866 Quebec society has undergone considerable change. Nonetheless, until recently the initial Code remained largely unamended for reasons related to its symbolic status: it was reified as a reflection of Catholic and francophone culture and as a counterpoint to governmental regulation in matters of labour law, workers compensation, consumer protection and family law, and as a bulwark against the intrusions of English common law. Consequently, the 1866 Code increasingly came to lose many of its virtues as a codification. To overcome the growing chasm between the law of the Code and social reality, much noncodal legislation has been enacted. Judicial interpretations often displaced Code provisions as the definitive statement of law. The language, substance and assumptions of the Code became outdated.

In 1955, the Quebec legislature established the Civil Code Revision Office to update the Code. After completing, piecemeal, some of the more urgent reforms, in 1966 the Office embarked upon a comprehensive review of the Code. In 1978 it released a Draft Civil Code and Commentaries in which fundamental alterations to the form and substance of the 1866 Code were proposed. A first replacement Civil Code of Québec was promulgated in 1980 but only certain reforms relating to family law were enacted at that time. In 1987, the legislature enacted a new law of persons, property, successions, trusts and administration of the property of another, but this enactment was never proclaimed in force. During the 1980s several further reform bills were presented as the legislature continued to modify both the 1866 Code and the 1980 Code, notably in matters relating to successions and family property respectively.

At the end of the decade a decision was taken to prepare an entirely new Civil Code of Québec, and to bring it into force all at once. This new Code was enacted in December 1991 and proclaimed in force on 1 January 1994. It purported to replace the Civil Code of Lower Canada and the initial Civil Code of Québec. Because a number of matters regulated in the former Code passed, after 1867, into federal jurisdiction, the precise scope of the replacement remains uncertain.

Significant changes were made to the Civil Code of Québec. The four books of the Civil Code of Lower Canada were reorganized into ten new books: Persons, Family, Successions, Property, Obligations, Prior Claims and Hypothecs, Evidence, Prescription, Publication of Rights, and Private International Law. The Code grew from 2615 articles to 3168 articles. Major substantive reforms were enacted to family law in order to promote economic equality between spouses (the family patrimony, the compensatory allowance and postmortem support obligations); to the law of property in order to enhance the modes of exploiting wealth (the regularization of undivided co-ownership and the elaboration of a regime of patrimonies by appropriation-like trusts); and to the law of security on property in order to facilitate commercial transactions (the provision for a hypothec over moveable property, over universalities of property and over claims). A number of fields previously governed by extra-codal legislations were repatriated into the Code and the style and vocabulary of codal articles law were modernized.

In overall orientation the Civil Code of Québec is more pedagogic (containing numerous definitions of marginal utility) and more individualistic (highlighting the human person as a titulary of rights and promoting contract as the main institution of social ordering) than its predecessor. It remains to be seen whether the product of this recodification will stand the test of time as well as the 1866 Civil Code of Lower Canada.