Civil Code of Quebec
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The Civil Code of Québec (Code civil du Québec) is the civil code in force in the province of Quebec, Canada. Except for certain parts of the book on the Law of the Family which were adopted by the National Assembly in the 1980s, the Civil Code of Québec 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.
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[edit] History of the Civil Code of Québec
[edit] 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 from which the colonists came.
In 1664 the French King decreed in "l'Édit d'établissement de la compagnie des Indes occidentales" (art. XXXIII) that la Coutume de Paris was applicable throughout New France. Also added was "le droit français de la métropole". 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 arrêts de règlement 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.
[edit] 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 for private relationships while maintaining the common law for public administration, including the prosecution of crimes. 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.
[edit] 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 de Vaud.
[edit] The Revised Civil Code of Québec
In 1955, the Government of Québec 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 Québec 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 Civil Code of Québec was passed into law 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 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 scope of the Code is summarized in its preliminary provision:
- The Civil Code of Québec, 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 Civil Code is frequently amended in order to reflect the evolution of the society.
The Civil Code of Quebec comprises over 3000 sections and is structured into major divisions and subdivisions called books, titles, chapters and subsections. It comprises ten books:
- Persons
- The Family
- Successions
- Property
- Obligations
- Prior Claims and Hypothecs
- Evidence
- Prescription
- Publication of Rights
- Private International Law
