Date Published:
March 2005

L’Encyclopédie de l’histoire du Québec / The Quebec History Encyclopedia

The Civil Code of Quebec

[This article was published in 1948. It traces the history and content of the Code to that date. For the exact citation, see the end of the document. It should be noted that the 1948 edition reprinted in extenso the text of the 1935 edition of the Encyclopedia.]

Civil Code, the term by which the systematic collection or digest of the civil laws of Quebec is denoted.

France, before the Revolution was, as Canada is to-day, divided into provinces, each of which had its lawmaking parliament. Of that country, which is territorially smaller than Canada, Voltaire could say, with a semblance of truth, that a man travelling through it changed laws as often as he changed horses. Provinces of northern and central France were governed by customary laws, while the south of France was governed by written law, derived from the laws of old Rome.

The customs had been reduced to writing. The Custom of Paris, for instance, had been enacted in 1510 and revised in 1580. In 1663, it was declared to be the law of Canada. In its revised form, it was divided in sixteen titles, comprising 362 sections. Of these sixteen titles, four had been abolished when it was decided to codify the laws in 1857. Title 12, "Of noble guards and burghers", had disappeared with the change of sovereignty; title 7, "Du retrait lignager", which dealt with the right given to the parents of a seller of real estate to oblige the purchaser to surrender it to them for the price paid, was done away with in 1855. Finally, title 1, "Fiefs", and 2, "Censives and seigniorial rights", disappeared with the abolition of the seigniorial tenure in 1854, so that, of the 362 sections of the Custom of Paris, only 257 were in force in 1857.

How these 257 sections became diluted into 2,280 articles of the Civil Code (exclusive of book fourth, which deals with commercial laws), is a pertinent question.

In answer it may be said that, in addition to the Custom of Paris, Canada was subjected to the decisions of the council of state of the kings of France affecting Canada, the decisions of the Sovereign Council, the ordinances of the intendants, and the edicts, ordinances, and declarations of the kings of France since 1663. It has been held by the Privy Council that only such of these ordinances as had been registered with the Sovereign Council of Canada were law in the country. But, admitting that the question is no longer res integra, there is no doubt that the ordinances of 1731 on donations, of 1735 on wills, and of 1747 on substitutions (trusts), as well as ordinances on commerce (1673) and marine (1681), although not registered in Canada, were frequently referred to before the Code, in which some of their provisions were inserted.

Such were the laws in force, or resorted to in Canada, when the Quebec Act enacted, in 1774, "that in all matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada, as the rule for the decision of the same."

Nevertheless, in the same year, unrestricted freedom of willing was introduced. Gradually, provisions, mostly of English origin, were enacted in the statutes, after the Constitutional Act of 1791, by the parliament of Lower Canada, by the Special Council which legislated from 1838 to 1841, and finally by the parliament of the province of Canada, under the Union.

The object of a civil code as proposed in 1857, was two-fold: (1) to consolidate the civil laws of Lower Canada , the practice of which had become increasingly difficult; and (2) to enable practitioners to have a text of law in their mother tongue.

All this is well stated in the preamble of the law of 1857 enabling the governor to appoint commissioners for the codification of the civil laws of Lower Canada (20 Vic, ch. 43)

WHEREAS the laws of Lower Canada in Civil Matters are mainly those which, at the time of the cession of the country to the British Crown, were in force in that part of France then governed by the Custom of Paris, modified by the Provincial Statutes, or by the introduction of portions of the Law of England in peculiar cases; and it therefore happens, that the great body of the Laws; in that division of the Province, exist only in a language which is not the mother tongue of the inhabitants thereof of British origin, while other portions are not to be found in the mother tongue of those of French origin and whereas the laws and Customs in force in France, at the period above mentioned, have there been altered and reduced to one general Code, so that the old laws still in force in Lower Canada are no longer reprinted or commented upon in France, and it is becoming more and more difficult to obtain copies of them, or of the commentaries upon them; And whereas the reasons aforesaid, dad the great advantages which have resulted from Codification, as well in France as in the State of Louisiana, and other places, render it manifestly expedient to provide for the Codification of the Civil Laws of Lower Canada.

The plan of the commissioners' work was described in section 7 of the Act: -

The said Codes shall be framed upon the same general plan, and shall contain. as nearly as may be found convenient, the like amount of detail upon each subject, as the French Codes known as the Code Civil, the Code de Commerce, and the Code de Procédure Civile.

Instead of three codes, the commissioners made two, book four of the Civil Code covering the same ground as the French Code of Commerce. The book comprised six titles: 1, Of bills of exchange, etc.; 2, Of merchant shipping; 3, Of affreightment; 4, Of carriage of passengers in merchant vessels; 5, Of insurance; 6, Of bottomry and respondentia. The first title was automatically superseded by the Bills of Exchange Act enacted after Confederation; the titles relating to maritime law do not apply to cases taken in the Admiralty courts, and the subject of insurance has been dealt with by legislation, both

provincial and federal, so that little remains, except as practically a dead letter, of the fourth book of the Civil Code, referring to commercial laws.

As to the Code of Civil Procedure, it was recast in 1897, and some provisions were removed from the Civil Code to be transferred to the new Code of Procedure, as not dealing with substantive law.

When the Civil Code of Lower Canada was prepared, the French Civil Code, or Code Napoléon, had been, for a more or less considerable period, the law governing Belgium, Holland, some of the Swiss Cantons, particularly those of Berne and Geneva, some parts of Italy, Luxembourg, Monaco, etc. It had influenced the legislation in a great many countries, both in Europe and in America. But the framers of the Civil Code do not appear to have taken any notice of the changes introduced, since 1804, in 'these various countries. The only Code which the Quebec draughtsmen seem to have considered, outside of the French Code, is the Civil Code of Louisiana, some twenty sections of which appear to have been introduced in the Quebec code. One or two references to the Civil Code of the Canton of Vaud, or of Sardinia, may also be traced as sources of the sections. But Pothier, the leading text-writer in France before the Code, was followed constantly; and the criticisms of the French commentators of the Code were taken advantage of.

The first three books of the Code were divided as follows: -

The various titles of the fourth book have already been mentioned. The Code ends with three sections (2613-5) dealing with the abrogation of existing laws, references to the Code of Procedure, and rules of interpretation in the event of differences between the French and English text of the Code. Some parts of the Code were originally drafted in English, such as, for instance, the most important subject, namely, Obligations. The English secretary of the Commission, Thomas McCord, afterwards judge of the Superior Court, says:

The conversion into English, of those titles, especially, which are derived from the old French law, was not unattended with difficulties, and to overcome these the terms of the Scotch law were in many instances made use of.

The division of the code adopted in 1866 is the same to-day [in 1948], with the exception of title 20 of book third, "of imprisonment in civil cases", which was transferred to the Code of Procedure, when the same was redrafted in 1897.

To what extent the provisions of the Civil Code differ from those of the French Code, is a matter the treatment of which would require volumes. Some idea of it may be secured by a glance at the table of concordance which is printed at the end of almost every edition of the Code, and differences have been pointed out in detail by those who prepared papers on the subject for the "Journées du droit civil français," which were held in Montreal, in the presence of leading jurists of France delegated by the French government, on August 31 and September 1, 1934, papers which were to be published in the course of 1935.

The code itself has undergone many changes at the hands of the legislators, and Thomas McCord, in 1880, began the preface of the third edition of his code, with the following remarks:

In a few days hence fourteen years will have elapsed since the Civil Code of Lower Canada came into force.

 

During this period of time, notwithstanding the warning of the Codification Commissioners against inconsiderate amendments and fragmentary legislation, the Code has twice every year, at the hands either of the Dominion parliament or of the Quebec legislature, been subjected, more or less, to piece-meal modifications, the aggregate of which, as will be seen by the notes to this edition, is far from inconsiderable.

This patchy legislation, brought about by persons, very few if any of whom had a sufficiently intimate knowledge of the Code to view it as a whole and to judge of the effects upon that whole of the particular changes they were making, is much to be regretted.

Since then, legislators have continued their work; and very few sessions of the legislature happen without a section or two of the Code being amended; but on the whole no radical changes have taken place, and the economy of the Code has been respected.

We may conclude with the closing words of Thomas McCord's preface:

The English speaking residents of Lower Canada may now enjoy the satisfaction of at last possessing in their own language the laws by which they are governed, and the Province of Quebec will bring with her into the Confederation a system of laws of which she may be justly proud; a system mainly founded on the steadfast, time-honoured and equitable principles of the Civil Law, and which not only merits admiration and respect, but presents a worthy model for legislation elsewhere.

Bibliography. Commentaries upon the Civil Code are not numerous, there having been, until recently, practically no full-time professors brought up in Quebec law, and the public appealed to being so small as to make the sale of a book unprofitable from a pecuniary standpoint.

In 1871, C. C. de Lorimier, afterwards a judge of the Superior Court, and C. A. Vilbon, undertook a Bibliothèque du Code Civil, that is a work embodying the text of the Code, in French and English, the official reports of the codifiers, the texts of the books, referred to by the codifiers under each section, and other quotations, and tables of concordance between the Quebec, French, and Louisiana Codes. The work comprises 21 volumes, the first of which appeared in 1885 and the last in 1900.

In 1873, T. J. J. Loranger began a commentary on the Civil Code. The second volume was published in 1879. It ends with section 185 of the Code. The author seems to have given up his work, for he died only in 1895.

By far the most important commentary of the Civil Code is that of P. B. Mignault, K.C., retired judge of the Supreme Court of Canada. It comprises nine volumes, the first of which appeared in 1895. The first volumes are practically an adaptation to the Quebec Code of the elementary work of Frédéric Mourlon; but gradually the author emancipated himself from his model.

Sir François Langelier, professor of Civil Law, afterwards chief justice of the Superior Court of Quebec, published (1905-11) the text of his lectures, which comprises six volumes.

Reference should be made hereto a thesis for a ,doctor's degree submitted in 1923 to the Paris Law School by Louis Antier, of the bar of Rouen (France), entitled The civil law of Lower Canada (survival of the second Custom of Paris), where the author notes differences between the French and the Quebec Codes, particularly on the subjects of marriage, marriage covenants, dower, successions, wills, and gifts.

Annotated editions of the Codes, containing the headnotes of the decisions given under each section, have been published at various times. The latest annotator is J. J. Beauchamp, who published both a code and a supplement. Another supplement was prepared by J. F. Saint-Cyr. Beauchamp published also a Repertory of jurisprudence, which was brought to date, in 1927, by Saint-Cyr.

Apart from theses for the degree of doctor of laws, there are a few treatises on special subjects, such as J. h. Billette's Donations, F. L. Snow's Landlord and tenant, a third edition of which has been published by Lovell C. Carroll, Eugène Lafleur's Convict of laws, and a more extensive work on the same subject by Walter S. Johnson, K.C., which will comprise three volumes.

An important treatise is that of L. P. Sirois, N.P., on tutorships and curatorships.

[For current information on the Civil Code of Quebec, consult the entry at the Canadian Encyclopedia, the Canadian Legal Information Institute and the brief history outlined at the Masterliness site. Those proficient in the French language can consult the article by Antonio Perrault on the role of George-Etienne Cartier in the codification of French Civil Law. Brian YOUNG wrote an excellent study on the code that should be consulted: Politics of Codification. The Lower Canadian Civil Code of 1866, Montreal, McGill-Queen's University Press, 1994, 264p.]

[Extensive resources to study the civil code of Quebec and its judicial system exist for the XIXth century. The following are available on the web: Maximilien BIBAUD, Essai de logique judiciaire, Montréal, De Montigny et Cie, 1853, 157p.; Maximilien BIBAUD, Commentaires sur les lois du Bas-Canada, Tome 1, première partie, 1859, 116p.; deuxième partie, 1859, 106p.; Tome 2, première partie, 1861, 198p.; deuxième partie, 1861, 81p.; troisième partie, 1861, 202p.; Abraham Lesieur DESAULNIERS, Dictionnaire de droit et de procédure d'après le Code civil du Bas-Canada, Montréal, Lovell, 1878: Première partie, 131p.; Deuxième partie, 118p.; Troisième partie, 112p.; Quatrième partie, 119p.; Cinquième partie, 123p.; Edmond LAREAU, Le Code civil du Bas-Canada (avec citations d'arrêts des tribunaux), première partie, 124p.; deuxième partie, 126p.; troisième partie, 155p.; quatrième partie, 108p.; cinquième partie, 88p.; sixième partie, 82p.; Edmond LAREAU, Histoire du droit canadien depuis les origines de la colonie jusqu'à nos jours, Montréal, A. Périard, Volume 1 (Domination française), 1888, 588p.; Volume 2 (Domination anglaise), 1889; Rodolphe LEMIEUX, Les origines du droit franco-canadien, Montréal, C. Théoret, 1900, Première partie, 104p.; Deuxième partie, 93p.; Troisième partie, 105p.; Quatrième partie, 100p.; Cinquième partie, 104p.; T. J. J. LORANGER, Commentaire sur le Code civil du Bas-Canada, Montréal, Presses de La Minerve, 1873, Tome 1: Première partie, 105p.; Deuxième partie, 107p.; Troisième partie, 134p.; Quatrième partie, 76p.; Cinquième partie, 126p.; Tome 2 (1879): Première partie, 144p.; Deuxième partie, 96p.; Troisième partie, 132p.; Quatrième partie, 97p.; Cinquième partie, 127p.; J. Zébédée MARTEL, Le droit canadien ou Abrégé des principales lois concernant les habitants de la province de Québec, L'Assomption, 1877, Première partie, 123p.; Deuxième partie, 134p.; E. Z. MASSICOTTE, Le droit civil canadien: résumé en tableaux synoptiques, Montréal, C. Théoret, 1896, 131p.; B. A. Testard de MONTIGNY, Histoire du droit canadien, Montréal, Senécal, 1869, Première partie, 150p.; Deuxième partie, 150p.; Troisième partie, 150p.; Quatrième partie, 150p.; Cinquième partie, 150p.; Sixième partie, 100p.; Septième partie, 143p.]

Source  : W. Stewart WALLACE, ed., The Encyclopedia of Canada, Vol. II, Toronto, University Associates of Canada, 1948, 411p., pp. 69-73.