THINGS AND PROPERTY

Very important: What is property? No clear definition! Property is whatever the legislator says it is.
-

Property = rights, les biens = les droits (Property = the right of ownership, un bien = un droit de proprit
DANS quelque chose). It is rights that circulate, not the objects of ownership themselves (you are not
selling your
Thing
Property
chair, but your
right to
- Could be a material thing NOT susceptible to
- Susceptible to
ownership in
appropriation (the sea, the atmosphere, the sun), so
appropriation
the chair).
then it would not be property.
- The right of
ownership is a subjective right, because it links the subject (the person) with an object (the piece of
property the bien). The right exists exclusively for the person who holds it!
- Property requires a LEGAL PERSON, who is the object of rights.
- Tremblay c. Daigle as a case example where you really need a LEGAL PERSON (a human being) to be
the holder of rights. A fetus does not have juridical personality (CCQ 1) and so does not have the full
enjoyment of rights.
Property = Thing = Right? Sometimes, but not always

Property is a THING you can right have a right of ownership to, but not all things can be property.
Contractual rights are property (personal rights).
Important transition Art. 947 CCQ differs from CCLC in that now, La proprit est le droit duser, de
jouir et de disposer librement dun BIEN as opposed to a CHOSE. Conception of property as more than
just a corporeal object (see Batiffol below).
Property finds expression BOTH as a right (patrimonial rights real rights and personal rights) and as a
thing (actual object of ownership).

Batiffol:
Be aware that he is writing about the French Code.
No definition of property in the French civil code!
French civil code suggests that property can only be divided into movables and immovable corporeal
objects. However, such a definition is insufficient because it doesnt take into account incorporeal property
(like stocks and bonds, contractual rights, etc.).
Simply because an object is incorporeal does not mean that it shouldn't have the same rights as those that
are corporeal. So, the legislature has had to find ways to make it so that incorporeal property is protected
with the same rights as corporeal property.
Main takeaway: Property is whatever the legislator says it is. As societys conception of what property can
be evolves (i.e. property regime used to be based solely on land ownership), the legislator has to find ways
to enable the legal regime (the CODE) to evolve as well, in order to protect and take account of the new
kinds of property. Its an example of how the code contains basic principles, but our understanding of what
the code means is external to the legal document; societal values and needs inform what it is that the code
means.
Important articles: 1, 4, 19, 22, 298, 299, 301, 303, 617, 909, 913, 914, 934, 947, 1376

913:Certainthingsmaynotbeappropriated;theiruse,commontoall,isgovernedbygenerallawsand,in
certainrespects,bythisCode.
914:Certainotherthings,beingwithoutanowner,arenottheobjectofanyright,butmayneverthelessbe
appropriatedbyoccupationifthepersontakingthemdoessowiththeintentionofbecomingtheirowner.
947:Ownershipistherighttouse,enjoyanddisposeofpropertyfullyandfreely,subjecttothelimitsand
conditionsfordoingsodeterminedbylaw.
PATRIMONY AND PATRIMONIAL RIGHTS
Theory:

- Defined as the whole of the rights and obligations (property + debts) of a person having economic
value.
- A balance sheet where property (rights and physical objects) answer for debts. The factor of cohesion
between the rights and obligations is the individual. Only things of economic value are calculated.
Doesnt include inalienable rights.
- Patrimony is a doctrinal fiction representing a universality a plurality understood as a unity.
Property = Patrimonial Rights (Kasirer)
Patrimonial Rights: Group of laws governing present and future property and debt. A universality in
law made up of rights and obligations in which the rights (Active) respond to the obligations (passive).
Major security for the creditor!
All objects in the patrimony lose their individuality.

Authority:

- 2 CCQ: Every person has a patrimony. The patrimony may be divided or appropriated to a purpose, but
only to the extent provided by law.
- 302 CCQ: Every legal person has a patrimony which may, to the extent provided by law, be divided or
appropriated to a purpose. It also has the extra-patrimonial rights and obligations flowing from its nature.
Essential link between rights and liabilities:
-2644 CCQ The property of a debtor is charged with the performance of his obligations and is the
common pledge of his creditors. (Note: unity and indivisibility codified here all property of the
person can eventually be used to fulfill his [outstanding] obligations)
-2645 CCQ says this includes property immovable and movable, present and future, except property
forming part of a legally sanctioned division of patrimony.
- Dynamic: Content changes over time because owner can always enter into new agreements. Not just
content, therefore, but also container
Succession: The theory explains succession the patrimony (property + debts) passes to the heirs, but
heirs are not bound by the obligations to a greater extent than the value of the property that they receive
(Art. 625).
Classical view (Aubrey & Rau): (Subjectivist Theory)
3 Main Propositions:
1) Every legal person has a patrimony
2) The patrimony is indivisible
3) Each person may only have one single patrimony
Only physical and legal persons have patrimonies:
- Patrimony emanates from personality.
- It includes all property & debts of a person abstract representation of the wealth and poverty of a
person.
- The patrimony is inalienable, cannot be detached from the person.
- A person loses their patrimony only at death.
- The patrimony itself is inalienable, but the patrimonial rights within the patrimony are both alienable
and transferable.
Critique of Classical View:
- A + R want to include ALL property in the patrimony, but the CCQ excludes intrinsic property (extrapatrimonial rights). Extra-patrimonial rights can only become part of the patrimony if they are violated,
and monetary damages rewarded then enter the patrimony.
- Problems with indivisibility of the patrimony. Professional + personal life united in 1 patrimony
- Since patrimony cannot exist without a subject, this does not allow for development of charitable
foundations by will.
*QC today: Objective theory of patrimony, which entails the creation of purpose patrimonies
independent from legal subjects in the new Civil Code the objective, modern theory. For this theory,
the purpose, not the person, is the most important part of the patrimony. 2 different ways to understand
purpose patrimonies division (chunks of patrimony, i.e. family) +appropriation (more controversial
as it breaks entirely with the classic understanding of subjective rights).

Authority (Contd):

J. Ghestin, Trait de droit civil : Introduction gnrale:

Universality de droit: The patrimony unites rights and
debts at the same time; it consists of assets and liabilities
that are inseparable from each other.
o For example, the right of the creditor is
the power to demand from another the
execution of a prestation. At the same
time, there is a corresponding charge
weighing on the debtor: the obligation. If
the debtor does not perform his
prestation voluntarily, the creditor can
simply impose an indirect sanction.
o This is the factor of cohesion that allows
the acquiring of new rights and
obligations.
o Patrimony is the ONLY judicial
universality in Civil Law
Patrimony in Quebec Law:
Exceptions to the Patrimony:
Patrimony by appropriation (Patrimoine daffectation):
Ability to create a patrimony without a person. Violates
classical theory. (France doesnt recognize non-personal
patrimonies; this is distinct to Quebec law.)
CCQ: Advent of the idea that patrimonies may be divided
or appropriated to a purpose (Art 2!), breaking from
classical theory.
Facilitated development of the trust (la fiducie) and the
foundation (la fondation) in the civilian tradition. Property
is taken from the patrimony of a person and placed in a
trust, which is administrated by a trustee who has no real
rights in it. Permits existence of a floating patrimony
without a holder.
(A foundation can be either a legal person or a patrimony
by appropriation, depending on the way it is set up.)
Trust:

2 CCQ: patrimony appropriated to a purpose

1260 CCQ: A trust results from an act whereby a
person, the settlor, transfers property from his
patrimony to another patrimony constituted by
him which he appropriates to a particular purpose
and which a trustee undertakes, by his acceptance,
to hold and administer.
1261 CCQ: The trust patrimony, consisting of the
property transferred in trust, constitutes a
patrimony by appropriation, autonomous and
distinct from that of the settlor, trustee or
beneficiary and in which none of them has any
real right.
1297 CCQ: At the termination of a trust, the
trustee shall deliver the property to those who are

EXTRA-PATRIMONIAL RIGHTS
Theory:

- Extra-Patrimonial rights: Those that cannot be evaluated from a monetary standpoint (do not have
pecuniary value). Moral rights, personality rights.
- Includes all rights possessed by a person which cannot be sold or transferred in exchange for money.
- They are intrinsic property that cannot be transferred (incessibles), sold (hors commerce), prescribed
(imprescriptibles), seized (insaissisables), or left to ones heirs (intransmissibles).
They can be renounced (including personality rights, family rights, public rights such as voting, and the
rights guaranteed by the Canadian and Qubec Charters) or waived for a fee.

Authority:

CODAL ARTICLES:
1-10 CCQ: Articles pertaining to civil rights.
35 CCQ: Every person has a right to the respect of his reputation and privacy. No one may invade the
privacy of a person without the consent of the person unless authorized by law. (Used to say without
the consent of the person OR HIS HEIRS, but now questions of privacy and reputation are no longer a
matter of succession)
36 CCQ: The following acts, in particular, may be considered as invasions of the privacy of a person:
using his name, image, likeness or voice for a purpose other than the legitimate information of the public.
302 CCQ: Every legal person has a patrimony which may, to the extent provided by law, be divided or
appropriated to a purpose. It also has the extra-patrimonial rights and obligations flowing from its nature.
537 CCQ: The death of the presumed father or of the mother before the expiry of the period for disavowal or
for contestation of status does not extinguish the right of action. The heirs may exercise this right, however,
only within one year after the death.
1212 CCQ: Property can be inalienable too patrimonial right taking on inalienability.
1610 CCQ: The right of a creditor to damages, including punitive damages, may be assigned or transmitted.
This rule does not apply where the right of the creditor results from a breach of a personality right; in such a
case, the right of the creditor to damages may not be assigned, and may be transmitted only to his heirs.
2668 CCQ: Property exempt from seizure may not be hypothecated. The same rule applies to movable
property belonging to a debtor which furnishes his main residence and which is used by and is necessary for
the life of the household.
Is the distinction between patrimonial and extra-patrimonial rights clear cut?
The distinction between patrimonial and extra-patrimonial rights has been blurred in many ways. Some extra
P rights have monetary value, i.e. sports figures, models and celebrities may renounce (waive) their droit
limage in return for cash payments, and the law itself patrimonializes extrapatrimonial rights every time
it assigns cash damages for their violation (Beaudouin & Jobin, Les Obligations). And even certain
patrimonial rights are restricted in their transmissibility or alienability (see CCQ 1212, 2648-59)
Ghestin: Some extra P rights are susceptible to pecuniary evaluation (mixed rights), i.e. the right to ones
image is an extra P right that can be susceptible to monetary evaluation. Or when personality right
infringements can give rise to damages (as above). The right to damages becomes a part of the patrimony
(but cannot be transferred in the case of infringement of a personality right 1610).
Civil Code of Procedure 552-553: Things exempt from seizure (food, fuel, linens, instruments for work,
religious items, family portraits, judicially awarded financial support, pension or disability benefits).
Is there a single criterion for making the distinction? Generally, no.

Authority
(Contd)

Laoun c. Malo [2003] RJQ [C1.113]

Facts: M worked as a model for Silhouette, which produced advertising posters using her image. L was
given copies of these ads by Silhouete to display in his store. L had a copy of the ad published in a telephone
directory without obtaining Ms consent. M sued L for using her image without consent. L claimed that M
transferred her rights to Silhouette and could no longer sue.
Issue: (1) Can a person transfer their droit limage? (2) What damages can result from unauthorized use of
a persons likeness?
Holding: (1) No. (2) Patrimonial/economic damages (both actual loss and lost future profits) and
extrapatrimonial moral damages.
Reasoning: Ls arguments fail on three points. First, Ms contract with S did not include a clause allowing
publication or re-use of her likeness by third parties other than the use included in the contract (in-store
posters). Second, the contract between M and S cannot have legal effects on third parties (a.1440). Thirdly,
a.3 prohibits the transfer of the right to privacy, which includes droit limage. Thus he has used Ms image
illegally and owes damages.
Ratio: Droit limage is not transferable, only renounceable; such renunciations occur by contract and are
interpreted strictly.
Comment: Several rights are in play at once here droit limage (Malo); droit la vie prive (Malo); droit
dauteur (Silhouette) and droit de proprit (Laoun) all applying to the same object.
HOWEVER, re all those rights above, some are closer to the hole of the bagel than others. Droit la vie
prive probably closest to the center. Extra P rights closer to the center are in need of more protection than
more mixed rights (like droit dimage or droit dauteur) and likely could not be waived in a contract for
monetary value.
Laprairie Shopping Center c. Pearl Shopping center goes bankrupt and a trustee takes over control of the
finances. Before bankruptcy, Shopping Center made some huge payments to Pearl. Trustee wants to
interrogate Pearl on the nature of his relationship with the shopping center. Pearl says: confidential
information. Even though trustee took over Shopping Centers juridical personality + control over
patrimonial rights, trustee does not get extrapatriominal rights (attorney-client privilege) without explicit
revocation.
The right to confidential information is a personal right and an extrapatrimonial right.

PATRIMONY AND JURIDICAL PERSONALITY

Theory:

Authority:

- Juridical personality can be automatic, as is the case with natural persons, or created, as with corporations.
- Corporations are not natural persons, but rather legal persons, established in the public interest or for a
private interest (as per 299 + 302 CCQ). In the case of a legal person, a patrimony is therefore created in
order to serve a particular purpose. Corporations have limited liability shareholders patrimonies are not
connected to the corporations patrimony.
298 CCQ: Legal persons are endowed with juridical personality. Legal persons are established in the public
interest or for a private interest.
299 CCQ: Legal persons are constituted in accordance with the juridical forms provided by law, and sometimes
directly by law. Legal persons exist from the coming into force of the Act or from the time prescribed therein if
they are established in the public interest or if they are constituted directly by law or through the effect of law;
otherwise, they exist from the time provided for in the Acts that are applicable to them.
301 CCQ: Legal persons have full enjoyment of civil rights.
302 CCQ: Every legal person has a patrimony which may, to the extent provided by law, be divided or
appropriated to a purpose,
303 CCQ: Legal persons have capacity to exercise all their rights, and the provisions of this Code respecting the
exercise of civil rights by natural persons are applicable to them, adapted as required.
Partnerships:
2186 CCQ: A contract of partnership is a contract by which the parties, in a spirit of cooperation, agree to carry
on an activity, including the operation of an enterprise, to contribute thereto by combining property, knowledge
or activities and to share any resulting pecuniary profits. A contract of association is a contract by which the
parties agree to pursue a common goal other than the making of pecuniary profits to be shared between the
members of the association.
2188 CCQ: Partnerships are either general partnerships, limited partnerships or undeclared partnerships.
Partnerships may also be joint-stock companies, in which case they are legal persons.
2199 CCQ: A contribution of property is made by transferring rights of ownership or of enjoyment and by
placing the property at the disposal of the partnership.
2208 CCQ: Each partner may use the property of the partnership, provided he uses it in the interest of the
partnership and according to its destination, and in such a way as not to prevent the other partners from using it
as they are entitled. Each partner may also bind the partnership in the course of its activities, but the partners
may oppose the transaction before it is entered into or restrict the right of a partner to bind the partnership.
2211 CCQ: The share of a partner in the assets or profits of the partnership may be charged with a hypothec.
However, the share of a partner in the assets may be hypothecated only with the consent of the other partners or
if so provided in the contract.
2221 CCQ: In respect of third persons, the partners are jointly liable for the obligations contracted by the
partnership but they are solidarily liable if the obligations have been contracted for the service or operation of
an enterprise of the partnership.
Before instituting proceedings for payment against a partner, the creditors shall first discuss the property of the
partnership; if proceedings are instituted, the property of the partner is not applied to the payment of creditors
of the partnership until after his own creditors are paid.(!! A scheme of distribution of assets: The partnership
patrimony is formed by each partners patrimony chunk. Partnership creditors can reclaim their debt from this
patrimony. But they can ONLY reclaim their debt from the partners own individual patrimonies AFTER the
personal creditors have been paid. Partners still ultimately liable.)
2246 CCQ: Where the property of the partnership is insufficient, the general partners are solidarily liable for
the debts of the partnership in respect of third persons

Authority:

Details on Partnerships:
- Be aware: In France, partnerships are legal persons by law. Not in the common law.
- Unsettled matter in Quebec law! Does a partnership have its own patrimony or not?
- - In Allard, decided under the CCBC, the Court determined definitively, and for the first time, that a
partnership is not a legal person, and it could not have a personal patrimony.
- POST 94: Going with the modern theory of patrimony (purpose patrimony) Does a partnership
have a distinct patrimony OR patrimony by appropriation?
- Distinct patrimony perspective (Popo): The partnership doesnt have its own patrimony. A chunk of each
partners patrimony is reserved to the partnership (in each partners patrimony, there is a special patrimony
devoted to the partnership). These special patrimonies, combined, form the partnerships patrimony. When
creditors of the partnership come calling, they collect their debt from the partners patrimony reserved to the
partnership. IF that is not enough, then they can go after the individual partners patrimonies (2221 + 2246
CCQ).
- Patrimony by appropriation perspective: In Ferme GCR (2010), Judge Rochon established that a
partnership, while it does not have legal personality, can have a separate patrimony from its partners, a
patrimony by appropriation (getting creative with patrimony by appropriation from trusts). So you have a
patrimony with a particular purpose (as recognized for trusts), but it is not connected to an individual (as the
classical theory posits) objective theory of patrimony rather than subjective. Sticking the objective theory
of patrimony into the code allowed Rochon to do this. This decision was to explain that it is not necessary for
the partners of a partnership to be placed in bankruptcy for the partnership itself to go bankrupt. A
patrimony bereft of legal personality. The partnership has rights and obligations, but no legal personality.
He uses the language of trusts! See 1261 below.
- The matter is still not settled in Quebec shows the ambiguous nature of the Code.
Popovici (Quebecs Partnership: A Distinct Society):
- Main point: Thinks it is impossible and undesirable for a partnership to have a patrimony by appropriation,
champions division of patrimony instead.
- A patrimony by appropriation is administered by a completely disinterested third party. A patrimony by
appropriation for a partnership would be administered by the partners VERY interested parties.
- A patrimony is JUST a contract how can a contractual relationship be responsible for debts + obligations?
- She thinks patrimony by division is a much better way to conceive of the partnerships patrimony (meaning
that a chunk of each partners patrimony is committed to the patrimony. Creditors for the patrimony go after
the chunks dedicated to the patrimony FIRST before going to the individuals own patrimony.)
- She thinks patrimony by division is still in harmony with A+Rs conception of patrimony because the
connection between subjective rights and the individual persists. A person is still always the holder of rights.
The partnership is then just a group of patrimonies connected to each individual. This means the partners are
still personally responsible for the partnerships actions (and debts), which she thinks is important.

Cases

Ville de Quebec c. Cie. dImmeubles Allard Lte. (1996)

A group of friends form a partnership and buy an immovable in the name of the partnership. Two friends sold
their share in the immovable to a remaining partner, but claimed it was a transfer of shares, not a transfer of
ownership. They are being a charged a transfer of ownership tax. So was it a transfer of ownership or a
transfer in shares? Does a partnership have a patrimony distinct from its partners?
Held: NO, no patrimony distinct from its partners. The partnership can't have property, the individual
partners do, thus it is a transfer of sale, tax incurred.
Roy c. Carrier (2006) Roy sues her former employers under their partnership, as well as individually. The
partners defense is that they cannot be sued under both. Held: Yes, partnership gets sued first, and only the
partnerships patrimony has been exhausted, can you go after the partners.

PATRIMONY BY APPROPRIATION (Trusts)

Theory:

Authority:

- Ability to create a patrimony without a person. Violates classical theory. (France doesnt recognize
non-personal patrimonies; this is distinct to Quebec law.)
- A set of goods/property appointed to a particular purpose
o One person could have several
o Special patrimonies could be transitive
o Someone could easily detach property and create a foundation
o No one owns the property held in trust.
o None of the people implicated (settlor, trustee or beneficiary) have any real or personal
rights in the trust patrimony.
915 CCQ: Property is acquired by contract, succession, occupation, prescription, accession or any other
mode provided by law. No one may appropriate property of the State for himself by occupation,
prescription or accession except property the State has acquired by succession, vacancy or confiscation,
so long as it has not been mingled.
1260 CCQ: Unless otherwise provided in the constituting act of the foundation, the initial property of
the trust foundation or any property substituted therefor or added thereto shall be preserved and allow
for the fulfilment of the purpose, either by the distribution only of those revenues that derive therefrom
or by a use that does not appreciably alter the substance of the initial property.
1261 CCQ: The trust patrimony, consisting of the property transferred in trust, constitutes a patrimony
by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which
none of them has any real right. (Only place we find evidence of distinct and autonomous patrimony in
the Code).
1262 CCQ: A trust is established by contract, whether by onerous title or gratuitously, by will, or, in
certain cases, by operation of law. Where authorized by law, it may also be established by judgment.
1263 CCQ: The purpose of an onerous trust established by contract may be to secure the performance
of an obligation. If that is the case, to have effect against third persons, the trust must be published in the
register of personal and movable real rights or in the land register, according to the movable or
immovable nature of the property transferred in trust. In case of default by the settlor, the trustee is
governed by the rules regarding the exercise of hypothecary rights set out in the Book on Prior Claims
and Hypothecs.
1264 CCQ: A trust is constituted upon the acceptance of the trustee or of one of the trustees if there are
several. In the case of a testamentary trust, the effects of the trustee's acceptance are retroactive to the
day of death.
1265 CCQ: Acceptance of the trust divests the settlor of the property, charges the trustee with seeing to
the appropriation of the property and the administration of the trust patrimony and is sufficient to
establish the right of the beneficiary with certainty.

REAL AND PERSONAL RIGHTS BOTH PATRIMONAL RIGHTS

Theory:

- Criterion of distinction: whether the relationship is with a thing or a person.

Authorit Real right:

- The right a holder has which gives him a direct relationship with a thing: jus in re (right in the thing).
y:
- 947 CCQ: Ownership is the right to use, enjoy, dispose of property a direct relation to/right in the thing, jus in
re. Most complete real right.
- 953 CCQ: Owners right to revendicate property against the possessor or person detaining it without right
opposability, which doesnt exist with personal rights. (Opposable tous)
- Limited real right: e.g. Usufruct = the right of use & enjoyment, for a certain time, of property owned by another as
ones own, subject to the obligation of preserving its substance (1120 CCQ). If owner goes bankrupt or sells the
article to a 3rd party, usufractuary can evoke her real right in the article and continue using it (right to follow).
- Limited number of real rights 1119 CCQ: Usufruct, use, servitude, and emphyteusis are dismemberments of the
right of ownership and are real rights.
- 2923 CCQ: Actions to enforce immovable real rights are prescribed by 10 years. However, an action to retain or
obtain possession of an immovable may be brought only within one year from the disturbance or dispossession.
- Special real rights: mining rights
- Note: Immovable real rights are absolute only if registered (1455, 2938, 2941). Sometimes for movables (2938).

Personal right:
-

The relationship between two persons. A relational right, not in physical property, but in the fulfillment of a
debt/obligation by another person: jus ad rem (right to a thing). e.g. debtor/creditor; lessor/lessee; all of a debtors
property is the common pledge of its creditors. Not opposable to 3rd parties, only the 2 within the contract.
Unlimited in number.
1440 CCQ: A contract has effect only between the contracting parties; it does not affect third persons, except where
provided by law.
1371, 1373 CCQ: An obligation between persons, with prestation as its object, which consists of doing or not doing
something, is a personal right.
Lease: a contract by which the lessor provides the lessee, for a rent, with the enjoyment of a movable or immovable
property for a certain time (1851 CCQ). If lessor goes bankrupt, the lessees claim is in jeopardy. However, there are
CCQ provisions designed to protect the lessee (1853 CCQ). For example, property must be in good state of repair
(1854 CCQ). [Whereas usufructuary accepts the thing in the condition in which he finds it.] Furthermore, Every
lesseehasapersonalrighttomaintainoccupancy;hemaynotbeevictedfromtheleaseddwelling,exceptinthe
casesprovidedforbylaw.1936CCQ.Aleaseisapersonalrightthatisopposabletoothersifpublished!(1847)
2925 CCQ: An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive
period is not otherwise established.
A personal right can create a real right through contract!

Characteristics of real rights:

1) Right to follow (droit de suite): the right to follow the property into whosoevers hands it may be, to take
possession of it, or to take it in payment.
2) Right of preference: guarantees to the holder of the real right the priority to be paid before other creditors in
the case of insolvency of the debtor in the distribution of the price of the object.
3) Faculty of abandonment: right to abandon your real right
4) Opposable erga omni: a person holds real rights against ALL others
Preference and Suite : Terre et Simler: Droit Civil: Les biens :
Real right includes le droit de suite: (should the debtor alienate the property) allows holder of right to assert his
rights over he who subsequently becomes proprietor of the property or acquire another real right on that new
property Eg. Hypothec not paid off and immovable sold, Bank can seize immovable from new owner.
Personal rights do not include le droit de suite
Real right includes le droit de preference: guarantees to the holder of the real right the priority to be paid before
other creditors in the case of insolvency of the debtor in the distribution of the price of the object.
Personal right does not include droit de preference.

Principal real right vs. Accessory real right:

Principal real right: the holders of such a right can directly use/control the object of rights. Includes right of ownership (+
all dismemberments)
Accessory real right: a real right that serves to guarantee the payment of a credit. Holder doesnt benefit from all the
prerogatives of ownership, but has an advantage over other creditors.
- TRADITIONALLY, real rights are considered to bear upon material things, while personal rights are on prestations.
Is the distinction between real rights and personal rights obsolete? GINOSSAR the categories are not perfect (i.e.
personal rights do not just opposable between both parties. Property (real right) is not absolute.
- When the CCQ Article 947 changed to Ownership is the right to use, enjoy and dispose of property fully and freely
from objects, gets rid of the distinction between contracts and property, real + personal rights blurred.

Accessory real rights are not property, but legal causes for preference:
HYPOTHECS DEFINED:

2660 CCQ A hypothec is a real right on a movable or immovable property made liable for the performance of an
obligation. It confers in the creditor the right to follow the property into whosoever hands it may be, to take possession of it
or to take it in payment, or to sell it, or cause it to be sold and, in that case, to have a preference upon the proceeds of the
sale ranking as determined in this Code.

In principle, any property non labelled unseizable by law can be the object of a hypothec, although it is
traditionally found only with immovables.

2661 CCQ: A hypothec is merely an accessory right, and subsists only as long as the obligation whose performance it
secures continues to exist.
These two together make it an ACCESSORY REAL RIGHT not a full real right but a legal cause for preference.

2733 CCQ: A hypothec does not divest the grantor or the person in possession, who continue to enjoy their rights over the
charged property and may dispose of it, subject to the rights of the hypothecary creditor.

2751 CCQ: The creditor may exercise his hypothecary rights in whosever hands the property lies.

Legal Cause for Preference:

Cases:

- 2646 CCQ: Creditors may institute judicial proceedings to cause the property of their debtor to be seized and sold.
If the creditors rank equally, the price is distributed proportionately to their claims, unless some of them have a legal
cause of preference.
- 2647 CCQ: Prior claims andOuimet
hypothecs
are legal
causes et
ofautres,
preference
called
real right just to bring it into the
et Ouimet
c. Guibault
[1972] C.S.
859a[C1.172]
Facts: 1964 O signed a contract in which G promised to sell some land and G promised to buy. This is a contract including both a
promise to sell and a promise to buy. Essentially a bilateral options contract, so no sale has yet occurred.
1967 Government gives notice of expropriation towards the land in question to G.
1969 O try to initiate sales contract via action en passation de titre.
1970 Government expropriates land from G.
O are angry that G did not complete the sales contract before the land was expropriated. They ask to have their real rights in the land
transferred and also claim damages for breach of contract.
Issue: (1) What rights did the contract create? (2) Did expropriation extinguish these rights? (3) Do O have a right to damages?
Holding: (1) Personal (2) No (3) Yes G must pay $10,700 in recognition of the rights O would have continued held even after
expropriation if the sale had gone through [listed in third-to-last paragraph].
Reasoning: Despite the five year gap, the plaintiffs had not renounced their rights to the promise of sale through silence and remain the
creditor of a personal right from Guibault. However, a promise of sale is not an actual sale contract; thus there was no transfer of real
rights. The governments actions count as force majeur, since they made it impossible for G to fulfill the obligation to transfer real
rights. Hence the action ptitoire must fail. However, the personal rights involved in the sales contract (the promise to sell) remain
valid. The rights that the government left to G would have been held by O and O would have received monetary compensation for the
expropriated lands. Since a personal obligation cannot affect third parties (the government) and since specific performance is
impossible here, damages are assessed at the value of $10,700 dollars.
Comment: Under the CCLC, the purpose of an action ptitoire was to ensure judicial protection of property. The articles of the CCP
governing the action ptitoire were repealed by the Quebec National Assembly with the introduction of article 912 of the CCQ,
which provides that the holder of a right of ownership or other real right may take legal action to have his right acknowledged. Note
that real rights require a special enforcement article because the enforcement regime for contracts/personal rights does not

apply to real rights!

INTELLECTUALPROPERTY
Intellectual Property
Theory

- IP doesnt easily fit into the civil law property of the CCQ.
- IP talks about ownership in intangible objects like original works, inventions, trademarks, copyright, etc., but also
movable property (i.e. physical book)
- IP is covered under federal jurisdiction, and CCQ law apples if the federal legislation cannot answer a particular
question. An area of property mostly dealt with outside the code.
Droit dauteur/Copyright:
- An author of a work has both copyright and moral rights in his creation. Copyright protects economic interests
(which are temporary and pecuniary fully transferable within system of commerce, patrimonial rights). Moral
rights protect the integrity of the work as an extension of the authors personality and reputation (extrapatrimonial
rights). Moral rights cannot be transferred after work is completed (yes BEFORE its completed), and the moral
rights CAN be renounced (waived) for money. Moral rights will always belong to the author, copyright can be sold
as property (i.e. to publisher).

Authority
(Doctrine
+ Code)

Where is intellectual property talked about in the code?

CCQ 458: Intellectualandindustrialpropertyrightsareprivateproperty
CCQ 909: Property that produces fruits and revenuesare capitalCapital also includes rights of intellectual or
industrial property.
Where is the federal authority for intellectual property? The Copyright Act, the Trademarks Act, the Patent
Act. How is IP recognized? Through creation in the case of the CA, and through registration in the case of
patent or trademark.
Kasirer The bi-juridical nature of copyright in Canada The Copyright Act
- Notions of copyright and droit dauteur are equivalent and fused concepts.
- Federal copyright law recognizes 2 extrapatrimonial moral rights: the right to integrity of the work and the
right to paternity
Right to integrity of the work = right to be identified as the works author by name or to remain anonymous
Right to paternity = Right to ensure that the work remains in the state in which it was released to the public
- Copyright is problematic for the civilian notion of property b/c the nature of ownership differs from the classical
civilian idea of absolute ownership. As per 947, property is the right to use, enjoy and dispose of property freely,
but the owner of a copyright is limited in this right copyright will expire, assignees of a copyright (i.e.
publishing house) will not benefit fully from ownership because of the extrapatrimonial rights the author
continues to enjoy through his work, etc.
- Copyright Act and provincial laws on property work together if there is a gap in federal legislation, its filled by
provincial law, i.e. provincial legislation regulates property such as the material things containing an authors
work.
Lametti 5 different subtypes of IP: copyright, trademark, moral right, patent and trade secret
- Copyright + patents + trademarks functionally treated as property
- Moral rights: extrapatrimonial rights
- Trade secrets: Not like property. Existence depends upon confidentiality and b/c of that, fundamental aspects of
property (like the right to follow) cannot exist for trade secrets. Trade secrets are in the domain of contract law. This
is why a provision on trade secrets is found in the Book of Obligations. Art 1612: Thelosssustainedbytheowner
ofatradesecretincludestheinvestmentexpensesincurredforitsacquisition,perfectionanduse;theprofitofwhich
heisdeprivedmaybecompensatedforthroughpaymentofroyalties.

Authority
(Cases)

Tri-Tex v. Gideochem:
TT finds out that G stole their confidential information and chemical formulas and demands a seizure before
judgment from the court. Seizures before judgment are possible pursuant to Art. 734 CCP for: the movable
property which he has a right to revendicate. The Court has to determine whether the confidential information,
chemical formulas, chemical products, barrels of chemicals, box of documents and computer that TT sought to
seize under 734 CCP may be considered TTs movable property.
- The judge has to determine how the property could have been created.
- What do we know about property? It can be corporeal or incorporeal (899), its possible to hold a right of
ownership or another real right in a property (911), the owner of property has a right to revendicate it against the
person detaining it without right (953). Art. 916 explains how to acquire property: Property is acquired by
contract, succession, occupation, prescription, accession or any other mode provided by law which means
property can be created external to the Code, i.e. through the Copyright Act, Trademarks Act, Patent Act.
- As far as the tangible objects that TT wants to seize (chemical products, barrels of chemicals, box of documents
and computer), the Court finds that TT does not own this movable property and cannot revendicate it.
- The Court finds that confidential information, understood as trade secrets, cannot be considered property
according to the code (and a past decision of R v. Stewart); confidential information is not opposable to third
parties. It is protected by contract law.
- The Court cannot classify chemical formulas as property either. Its not property according to the Copyright Act,
as its not a literary oeuvre that should be protected by les droits de lauteur (as chemical formula is just an idea,
not an original expression of an idea). Its not property according to the Patent Act, because its not an invention.
Its not property according to Article 949 either: Thefruitsandrevenuesofpropertybelongtotheowner,who
bearsthecostsheincurredtoproducethem.
TT loses becausetheycannot showthattheirconfidentialinformation/chemical formulascount asmovable
propertyasunderstoodbytheCodeorotherfederallaw.Therefore,TThasnorighttorevendicate.
DiffusionYFBc.LesDisquesGamma
L signs a contract with record label Disques Gamma, giving DG the rights to of profits in all his songs. Several
years later, business with DG concluded, he signs with another record house, giving YFB the rights to all of his
songs for a 5-year period. When YFB tries to register Ls songs with SOCAN (Canadian copyright body), DG
claims of profits. Does DG still have a claim on Ls songs?
- This is an example of a case where the Copyright Act is not clear. There is a gap in the federal legislation, and
gap needs to be filled by the CCQ.
- Court holds that DG still has a right on Ls song by virtue of Article 1374: The prestation may relate to any
property, even future property, provided that the property is determinate as to kind and determinable as to
quantity. Yes, L ceded his rights to future property, satisfying all criteria in Art. 1374.

MOVABLESANDIMMOVABLES
Movables and Immovables
Theory

- Property is divided into movables or immovables (899).

- Immovables (900) permanent nature.
- Movables form a residual category 907: All other property, if not qualified by law, is movable. (i.e. droit dauteur is a
movable ANY KIND OF PROPERTY thats not immovable is movable, even incorporeal, except as determined by law!
Art. 904 below).
- Other sign of the power of the legislator to say what property is: they have decided that waves or energy, no matter if the
source is movable or immovable, counts as corporeal movables (906).

Why would you want to transform a movable into an immovable?

- Owners of immovables enjoy certain rights and privileges that do not exist for a movable.
a) Immovables can act as a guarantee for creditors (PRE CCQ: you can get a hypothec on an immovable, but not a movab
b) If a movable becomes part of your immovable, it cannot be seized by revendication (pre-CCQ + for 901 CCQ, not 903
c) Movables + immovables are subject to different levels of taxation (Cablevision)
Belair c. Ste.-Rose
Authority - Municipality has a tax on immovables. Belair claims his bridge is not an immovable and should not be taxed.
- Held: Bridge is immovable by nature (Art. 376 CCLC).
Immobilization under CCLC
1) By nature
- Immobilization by nature includes land, buildings and things integrated in to them.
- When a movable becomes so incorporated to a building, to the point of losing its individuality (Cablevision)
- Owner of immovable and movable CAN BE DIFFERENT
CASES
Nadeau c. Rousseau (1928)
- R installs furnaces in Proulxs house. Both sign installment sale contract to say that the furnaces will remain the
property of R until Proulx pays for them in full. Proulx goes bankrupt and his house is seized. R says furnaces are his
movable property and he seeks the seizure of his furnaces.
- Held: R does not have the right to seize because the furnaces have been immobilized by nature. The furnaces are
physically integrated into the house, and are necessary to the immovable b/c of the necessity of heating in Canada. So, R
only has action against Proulx for breach of contract, he becomes an ordinary creditor.
Horn Elevator c. Domaine dIberville (1972)
- HE signed a contract with DDIs contractor to install an elevator in a DDI-owned building. Sales agreement stated that
elevators would remain the property of HE until DDI pays for the elevator in full. DDI goes bankrupt and cant pay, and
HE attempts to seize their property.
- Held: HE has no right of seizure because the movable elevator (and all of its parts) have become immovable by
nature. How? Analogy to stairs (which doctrine recognizes as immovable), elevator clearly attached to building
structure and a necessary part of skyscrapers.
Cablevision c. Le sous-ministre de Revenu (QC) (1978)
- Is Cablevisions cable distribution network attached to other networks immovable and not subject to tax? YES
- Held: The entire network is immovable by nature and the component parts of the network cannot be removed with
being deteriorated.
- FURTHER, immobilization by nature happens when a building adheres to something that is immovable by nature,
whether land or building. The other networks that Cablevision is attached to were previously declared immovables,
which makes Cablevisions network immovable as well.
- (Cannot be immovable by destination b/c wires + antenna belong to appellant, but poles and land belong to others
need same owner for destination, see below).
2) By destination
- Movable thing which, without losing its individuality, is deemed immovable because of its attachment or
connection, as an accessory, to an immovable by nature belonging to the same owner.
- Idea taken from French law, where movables can be immobilized if they are necessary to the exploitation of
the immovable (think in a business sense, necessary to exploitation of enterprise, i.e. tables and chairs
necessary for a restaurant).
3) By determination of the law (details next page).

Immobilization under CCQ Process of immobilization becomes MORE STRICT post-1994, but now you can also
Authority guarantee movables, not just immovables, which removes a big reason you may want to immobilize a movable.
(cont.)
* Art. 2660: A hypothec is a real right on a movable or immovable property made liable for the performance of an
obligation.
* Art. 2665: A hypothec is movable or immovable depending on whether the object charged is movable or immovable
property or a universality of movable or immovable property.
1) By determination of the law
- Art. 904: Real rights in immovables, as well as actions to assert such rights or to obtain possession of immovables, are
immovables.
- Art. 902: Integral parts of an immovable that are temporarily detached therefrom retain their immovable character if
they are destined to be put back.
2) Immovable by nature (integration or incorporation, with loss of individuality) 901 CCQ
901: Movables incorporated with an immovable that lose their individuality and ensure the utility of the
immovable form an integral part of the immovable.
- Requires a material link between the movable and immovable.
- Same owner for immovable + movable NOT required.
- Utility is a new, stricter condition of immobilization (no longer need mere physical attachment).
- 3 requirements: incorporation, no individuality, utility
- IMPLIES A TRANSFER OF OWNERSHIP hypothec on movable effectively not possible
3) Immovable by annexation (without losing their individuality) 903 CCQ
903: Movables which are permanently physically attached or joined to an immovable without losing their
individuality and without being incorporated with the immovable are immovables for as long as they remain
there. (Replaces immovable by destination)
- Requires a material link between movable and immovable.
- Does NOT require the owner of the movable and immovable to be the same
- Hypothec on movable still possible (see 2672: Movables charged with a hypothec which are permanently physically
attached or joined to an immovable without losing their individuality and without being incorporated with the
immovable are deemed, for the enforcement of the hypothec, to retain their movable character for as long as the
hypothec subsists.)
!! Article 903 is pretty vague, so you have to go outside the Code to understand what it really means and use these tools
in the application of 903.
a) An Act Respecting the Implementation of the Civil Code, s.48: Under Article 903, only those movables referred to
which ensure the utility of the immovable are to be considered as immovables, and any movables which, in the
immovable, are used for the operation of an enterprise or the pursuit of activities are to remain movables.
Means that movables necessary for the operation of an enterprise are NO LONGER immovables has to ensure
n the utility of the IMMOVABLE, rather than utility of the enterprise (so no more tables + chairs).
b) From Axor, Justice Lafonds 5 requirements that have to be met in order for 903 CCQ to apply: 1 An immovable
must be present; 2 There must be a physical attachment of some kind between the movable and immovable; 3
The movable must maintain its individuality; 4 the movable must be permanently attached or joined ( demeure
in French); 5 The movable must ensure the utility of the immovable.
Axor Construction c. 3099-220 Quebec Inc.
Post-1994 - 3099-220 provided rinkboards for an arena being built by Axor. Not getting paid for their work, 3099-220 published a
CCQ legal hypothec applying to the whole arena, claiming it had contributed to the construction or renovation of an
Cases immovable (2724(2)). Axor goes to court to dismiss this hypothec, claiming the boards are a movable separate from the
arena, so 3099-220 has no right to claim a hypothec on the entire immovable arena. Are the rinkboards movable or
immovable? Is the hypothec on the entire arena valid?
Held: The rinkboards are immovable by annexation (903) and the legal hypothec on the immovable arena is valid.
To come to this conclusion, Judge Lafond uses his 5 step test (above). Because the boards are removable, the Court
determines that they have not lost their individuality and there is no complete incorporation to the immovable (so 901 is
out). In #4, demeure means that the movable must be attached or joined for an indeterminate or undefined period (a
degree of permanence), which is satisfied here. #5 is determined in conjunction with s.48, and because the boards ensure
the utility of the immovable (rink would be incomplete/unusable without boards), the 5th criterion is satisfied.
Dissent: The boards are removable and do not satisfy the utility of the immovable, but only of the enterprise, so cannot
be immobilized and thus the legal hypothec does not apply. Further, the rinkboards were a piece of equipment supplied
to the arena, which has nothing to do with construction, undermining the application of 2724: Only the following
claims may give rise to a legal hypothecclaims of persons having taken part in the construction or renovation of
an immovable.

Ville de Montreal c. 2313-1329 Quebec Inc. (Rock Sanna Caf Bistro) and 2086091 Quebec Inc.
Post-1994 - Resto goes bankrupt and goes out of business. Resto owner leaves building and tells his landlord that he will leave all
CCQ the restaurant equipment behind, to transfer along with the lease to the next tenant. The new tenant moves in. However,
Cases b/c Resto went bankrupt, the city of Montreal comes to seize all the leftover equipment to satisfy Restos non-payment
(cont.) of taxes. New tenant objects and says these goods are immovable by virtue of Art.903 (part of the building) and you
have no right of seizure! Are the goods left behind movable or immovable?
Held: Applying the test from Axor, the judge finds that the objects do not satisfy the 5 criteria for immobilization via
903 (4+5 fail in particular) and are movables and so subject to seizure.
Construtek c. Laforge
- Husband and wife get divorced. Husband gets house in settlement (but buys out wifes half), and wife (Laforge) takes
all appliances and furniture when she leaves. Husband says those objects are immovable per 903 and you owe me half
the value of everything you took. Are the appliances and furniture immovable by annexation?
Held: Only the light fixtures are immovable by nature (lost their individuality, incorporated into the house). She owes
husband $$ for half the value of the light fixtures, but all other objects are movable and she is permitted to take them.
Everything besides the light fixtures do not contribute to the utility of the immovable, and thus cannot be immobilized.
Extras!

How do you turn an immovable into a movable?

Art. 900: Plants and minerals, as long as they are not separated or extracted from land, are also immovables. Fruits
and other products of the soil may be considered to be movables, however, when they are the object of an act of
alienation.
Also! Crops ABOUT to be cut, trees about to be felled and materials in a building about to be demolished are considered
movables.
What are the practical consequences of allowing hypothecs on movables (post 1994)?
- Pre-1994, it was harder for commercial or industrial enterprises to obtain credit.
- Installment sales whereby constructors did not relinquish full ownership of movable they were supplying
until full payment was received left little protection for constructors, as immobilization resulted in a transfer
of ownership rights to the immovable owner (Nadeau, Horn elevator).
Putting together Article 571 CCP and Article 2672 CCQ, what do I know about hypothecs on movables that have
been immobilized through 903 CCQ?
Article 2672 says: Movables charged with a hypothec which are permanently physically attached or joined to an
immovable without losing their individuality and without being incorporated with the immovable are deemed, for the
enforcement of the hypothec, to retain their movable character for as long as the hypothec subsists.
Article 571 says: Movables which are immovable by virtue of Article 903 CCQ can only be seized with the immovable to
which they are attached or joined; they may, however, be seized separately by a prior or hypothecary creditor, or by
another creditor if they do not belong to the owner of the immovable.
Understand by this that a movable, made immovable by virtue of 903 CCQ, can be seized by itself when: a) the owner
of the movable and immovable are the same, and the movable had a hypothec on it before being immobilized; b) the
movable has a different owner than the immovable and the owner of the movable has a hypothec on that movable
(hypothec obtained pre or post immobilization). The movable will be seized WITH the immovable when the owner of
the movable and immovable is the same, and the hypothec is obtained post immobilization.

Other Distinctions Res and Various Objects

Theory

Categories of movable property:

*Res communis (Property that belongs to everyone)
*Res derelictae + res nullius (Vacant property, abandoned property, lost + forgotten property, treasure)
- The state does not like objects with no owners so the law sets up ways to find owners for vacant objects, especially
immovables.

How to acquire property? Art. 916 says through contract, succession, occupation, prescription, accession.
Occupation: Mode of acquisition of the ownership of a movable without an owner (abandoned) by taking possession of i
with the intention of being an owner. Such acquisition is instantaneous to the benefit of the occupant. Only movables can
acquired by occupation.
Prescription (Acquisitive Prescription): Means of acquiring a right of ownership through the effect of possession, over a
particular time period (Art. 2910). Typical duration of acquisitive prescription is ten years (Article 2917), unless otherwis
fixed by law. Article 2919 states that the possessor in good faith of movable property acquires ownership after 3 years.
Accession: Ownership of property gives a right to what it produces and to what is united to it, naturally or artificially, fro
the time of union (Art. 948).
Communis
Authority - Article 913: Certain things may not be appropriated; their use, common to all, is governed by general laws and, in
certain respects, by this Code. However, water and air not intended for public utility may be appropriated if collected
and placed in receptacles.
- An Act to Affirm the Collective Nature of Water Resources: Being of vital interest, both surface water and
groundwater, in their natural state, are resources that are part of the common heritage of the Quebec nation.
- Water itself is common property, but not waterbeds (see water below).

Vacant, Abandoned, Lost + Forgotten Property

- Article 934 (Things with no owner): Things without an owner are things belonging to no one, such as animals in the
wild, or formerly in captivity but returned to the wild, and aquatic fauna and things abandoned by their owner.
Movables of slight value or in a very deteriorated condition that are left in a public place, including a public road or a
vehicle used for public transportation, are deemed to be abandoned things.
- Article 935: (Abandoned movables) A movable without an owner belongs to the person who appropriates it for
himself by occupation. An abandoned movable, if no one appropriates it for himself, belongs to the municipality that
collects it in its territory, or state.
- Article 936 (Immovables with no owner): An immovable without an owner belongs to the State. Any person may
nevertheless acquire it by natural accession or prescription unless the State has possession of it or is declared the owner
of it by a notice of the Minister of Revenue entered in the land register.
- Article 939 (Lost and forgotten movables): A movable that is lost or that is forgotten in the hands of a third person or
in a public place continues to belong to its owner. The movable may not be acquired by occupation, but may be
prescribed by the person who detains it, as may the price subrogated thereto.
- Article 940 (Lost or forgotten movables): The finder of a thing shall attempt to find its owner; if he finds him, he
shall return it to him.
- Article 941 (Lost or forgotten movables): The finder of a lost thing, in order to acquire, by prescription, ownership of it
of the price subrogated to it, shall declare the fact that he has found it to a peace officer, to the municipality in whose territo
it was found or to the person in charge of the place where it was found. He may then, at his option, keep the thing, dispose
in the manner of a person having detention or hand it over for detention to the person to whom he made the declaration.

Treasure
Article 938: Treasure belongs to the finder if he finds it on his own land; if it is found on the land of another, belongs to
owner of the land and to the finder, unless the finder was acting for the owner.

Cases

Boivin c. PGQ
- Gold blocks found in the bed of a lake. Boivin wants ALL the gold blocks, state says half belongs to us, because the lake
belongs to us. Other finders who hear of Boivins findings want in too, saying this is not treasure but abandoned movables.
Held: The gold bars are treasure, it has to be split between Boivin and the state. (These gold bars are not abandoned, as a
reasonable man would not abandon many expensive gold bars. They are not lost or forgotten, because no one, in amidst all
news coverage about this treasure case, has come forward to claim them).

Cases
cont.

Carl Malette c. Suret de Quebec

- Malettefinds$20,000foundonthestreet.HedeclaresittoaSDQpostandafter1year,noownerfound.Malettewantsto
claim,ownershipbyprescription.Canhedoso?(cont.onotherpage).
Held:Themoneyisalostandforgottenmovable.Malettecantakepossessionofthemoney,butnotownership.Hecan
acquireownershipthroughprescription,butthetimeperiodwillbeextendedto10yearsfrom3yearsbecauseitdoesnots
likeheisapossessoringoodfaith.

Other Categories
Theory

Depending on the nature of the property, different rules apply.

* In / Out of commerce
- As determined by the State
* Consumable/Non-consumable
- Consumable: Objects that cannot be used without being consumed (food, firewood)
- Non-consumable: Not directly consumed by use, although use may result in deterioration/depreciation.
* Fungible/Non-fungible
- Fungible objects are not unique; they are interchangeable with other similar objects (i.e. an iPhone).
- Non-fungible objects are unique, one of a kind (i.e. original work of art)
* Capital, Fruits, Revenues (Arts. 908-110)

Consumable/Non-consumable
Authority - Article 1127: The usufructuary may dispose, as though he were its owner, of all the property under his usufruct
which cannot be used without being consumed, subject to the obligation of returning similar property in the
same quantity and of the same quality at the end of the usufruct. (This is a quasi-usufruct you don't have to give
back the exact thing to the owner, just a like thing, or its equivalent in money).
Fungible/Non-fungible
- Article 1453: The transfer of a real right in a certain and determinate property (aka non-fungible)vests the
acquirer with the right upon the formation of the contract, even though the property is not delivered
immediately and the price remains to be determined.
The transfer of a real right in a property determined only as to kind (aka fungible) vests the acquirer with that right
as soon as he is notified that the property is certain and determinate. (This means that only non-fungible items can
be the object of real rights, since by definition real rights are held on a specific, identifiable object. Once in the
patrimony though, the fungible/non-fungible distinction does not matter, and all property is part of the debtors
common pledge.)
Fabrique de la Paroisse de lAnge Gardien c. PGQ (related to In/Out of Commerce)
The abbot of the Church transfers many valuable religious items to government museums and private individuals in
exchange for money for the church. State is happy with this transfer of goods, but the Church says these items could not
be alienated or made the objects of commerce, since they were religious objects. Demands their return. States says they
are alienable. Can the Church treasures be susceptible to alienation or prescription under the standard property regime?
NO.
Takeaway: Sacred things, so long as their ecclesiastical nature has not been removed by a significant authority, cannot be
acquired by prescription, they are hors commerce.
Note: This was decided under a CCLC article saying, Sacred things cannot be acquired by prescription. Today, sacred
items would be covered under the similar (yet more abstract) Article 2876: That which is not an object of commerce, not
transferable or not susceptible of appropriation by reason of its nature or appropriation may not be prescribed.

Dismemberments Real Rights on the Property of Others

+ Absolute Nature of Property
Theory

Articlce 947: Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and
conditions for doing so determined by law.
Ownership may be in various modes and dismemberments.
Main characteristics of ownership are usus, fructus and abusus.
Usus: The right to use the thing or not to use the thing to obtain the benefits derived from simply having the thing.
Fructus: The right to the fruits of the thing, to what is produced by it without its substance being diminished (crops,
fruit from trees). The owner is authorized to receive all the profits, income or other benefits produced by the object
owned.
Abusus: The right to dispose of the thing both materially, to transform it, deform or destroy it, to alienate it by
transferring ownership (or real rights less than ownership). Destruction.
Usus and fructus can be transferred from an owner to others through dismemberments (real rights). Only an owner has
the power of abusus no one else can destroy the property.

Article 1119: Usufruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are real
Authority rights.
The right of ownership is absolute and lasts forever. Some dismemberments are permanent as well (like servitudes),
but others are not, for example, usufruct.
1120: Usufructistherightofuseandenjoyment,foracertaintime,ofpropertyownedbyanotherasone'sown,
subjecttotheobligationofpreservingitssubstance.
1123:Nousufructmaylastlongerthan100yearseveniftheactgrantingitprovidesalongertermorcreatesa
successiveusufruct.Usufructgrantedwithoutatermisgrantedforlifeor,iftheusufructuaryisalegalperson,for
30years.
TheAPPETITEofOwnershipOwnershipwantstokeepacquiringmoreproperty,codeallowsthis.
ThroughaccessionArticle948:Ownership of property gives a right to what it produces and to what is united
to it, naturally or artificially, from the time of union. This right is called a right of accession. [Whats on your land
is YOUR PROPERTY.]
Article 951: Ownership of the soil carries with it ownership of what is above and what is below the surface.he
owner may make such constructions, works or plantations above or below the surface as he sees fit; he is bound to
respect, among other things, the rights of the State in mines, sheets of water and underground streams.
Article 955: Constructions, works or plantations on an immovable are presumed to have been made by the
owner of the immovable at his own expense and to belong to him.
Article 956:The owner of an immovable becomes the owner by accession of the constructions, works or
plantations he has made with materials which do not belong to him, but he is bound to pay the value, at the time
they were incorporated, of the materials used. The previous owner of the materials has no right to remove them nor
any obligation to take them back.

Public Domain
Theory:

Authority:

- Generally defined as the public patrimony of the state.

- The domain includes all the property that the State owns within its territorial boundaries.
- Individual patrimonies also fall within the domain since the State creates property, hence gives said
property/rights to your patrimony. The State therefore retains a claim on one's rights and property perpetually.
- There is a difference between property rights in the private and public domains.
- The Code distinguishes between public and private legal persons: elle sont de droit public ou de droit priv
(298 CCQ).
- The legal persons form a dual domain. Public legal persons have a patrimony, but the properties they possess
are State property and cannot be appropriated or seized (916 CCQ, 2645 CCQ). These properties may not be
hypothecated (2668 CCQ) Khalid Case.
Appropriation and alienation:
State property cannot be appropriated by occupation, prescription or accession, except in accordance with the
law (916 CCQ, 2877 CCQ). 917 to 919 CCQ deal with mobilization of properties from the public domain to
the private domain and vice versa. Confiscation is an example of the State appropriating private property (917
CCQ). Legal properties of the State that are appropriated for public interest are protected from seizure in the
case of default of payment, and may not be hypothecated (916 CCQ, 2668 CCQ).
Legislation:
An Act Respecting the Lands in the Domain of the State: Sets out the requirements for managing and using public
lands.
An Act Respecting the Caisse de Depot et Placement du Quebec: main point: as per sec. 4 although property
belongs to the state, their assets are seizable.
Hydro-Quebec Act: Sec. 3 performance of the obligations of the Company can be levied on its propery (also
seizable).

The dual domain therefore puts into question the distinction between the public and private domain. In Construction D.R.M. Inc.
c. Btiments KaladArt Inc., the Court held that property of a legal person can fall under the public domain as long as it serves the
public utility (916 CCQ). In determining what falls under the public domain and what is part of the legal persons patrimony, the
Court applied the public utility test. Public utility is to be interpreted widely so as to include properties that by their essential
function serve the public (916 CCQ).
Construction D.R.M. Inc. c. Btiments KaladArt Inc., [2000] RJQ [WebCT]
Facts: The City of Rimouski contracted with DRM to build a salt storage depot. BKI provided the materials to DRM, but DRM
defaulted on the payments. BKI had registered a legal hypothec on the depot, but DRM claims that the building could not be the
object of a legal hypothec since it was intended for public utility.
Issue: Is the depot appropriated to public utility in the sense of a916?
Holding: Yes.
Reasoning: The case involves the application of the theory of "dualit domainiale": property belonging to the municipality can
be divided in to two parts: one which is part of the public domain (may not be seized) and one which is private (seizable). a916
gives effect to this difference. But a916 is based on a2220 of the CCBC, which differed between French and English
versions/interpretations. French: possds pour lusage gnral et public Public in destination, but not necessarily in its
direct use. Part of public domain if essential to the functioning of the municipality. The test is the essential character of the thing.
Cest cette destination lusage gnrale et public quil faut retenir et qui permet de le considrer comme faisant partie du
domaine public de la municipalit. English: possessed for the general use of the public More restrictive - must be used
directly by the public. The thing is part of the public domain if it is at the disposition of the general public. However, case law
based on this approach, like Montreal v Hill-Clark-Francis, is seen as too restrictive and has been distinguished in the
jurisprudence.
The depot is not essential in and of itself, but it is closely linked to an essential service (road clearing during winter). Hence by
the large sense given to public utility in the French interpretation, it is appropriated to public utility. No hypothec.

Ratio: Public utility should be interpreted in a large sense, one which will fusionne les diverses interprtations
donnes aux versions franaise et anglaise de larticle 2220 CCBC. De mme, la thorie de laccessoire devrait
tre applique au moment de dfinir si un bien est affect ou non lutilit publique.

Water
Theory:

Navigable watercourses are state property.

Rights to water is limited to use (cannot appropriate or sell)

Authority:

913 CCQ: Certain things may not be appropriated; their use, common to all, is governed by general laws
and, in certain respects, by this Code. However, water and air not intended for public utility may be
appropriated if collected and placed in receptacles.
Ministers commentary: The first line of this article is inspired by article 585 from the Civil Code of
Lower Canada. The second line creates an exception to the principle of the first line, looking to cover the
cases such as those of mineral water or of compressed air.
585 CCLC: There are things which have no owner and the use of which is common to all. The enjoyment
of these is regulated by laws of public policy
919 CCQ: The beds of navigable and floatable lakes and watercourses are property of the State up to the high-water
line. The beds of non-navigable and non-floatable lakes and watercourses bordering lands alienated by the State
after 9 February 1918 also are property of the State up to the high-water line; before that date, ownership of the
riparian land carried with it, upon alienation, ownership of the beds of non-navigable and non-floatable
watercourses. In all cases, the law or the act of concession may provide otherwise. Houde Case.
920 CCQ: Any person may travel on watercourses and lakes provided he gains legal access to them, does not
encroach on the rights of the riparian owners, does not set foot on the banks and observes the conditions of use of
the water.
Water course (lakes rivers)
981 CCQ: A riparian owner may, for his needs, make use of a lake, the headwaters of a watercourse or any other
watercourse bordering or crossing his land. As the water leaves his land, he shall direct it, not substantially changed
in quality or quantity, into its regular course. (2) No riparian owner may by his use of the water prevent other
riparian owners from exercising the same right.
Spring or completely enclosed within land
980 CCQ: An owner who has a spring on his land may use it and dispose of it.
(2) He may, for his needs, use water from the lakes and ponds that are entirely on his land, taking care to preserve
their quality.
2nd para He may, for his needs, use water from the lakes and ponds that are entirely on his land, taking
care to preserve their quality.
May use it and preserve quality and quantity sounds like 981 CCQ
This water is not being characterized as part of res communis. However, 982 CCQ is then confusing: says
that owner may require the destruction/ modification of works to prevent water from being polluted or
used up.
May be that 982 would allow one well owner to object to actions of neighbouring owner who is unduly
depleting supply.
982 CCQ: Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water,
underground stream or any running water may, to prevent the water from being polluted or used up, require the
destruction or modification of any works by which the water is being polluted or dried up.
Musings: is it possible for someone to make a commercial exploitation of water? A categorization of water as a res communis
assumes that it cannot be appropriated (s. 913). First you have to ask what s. 913(2) means. Is it restricted to a certain kind of
water- like mineral water? And does appropriation in this context still limit that to personal consumption? Look at the degree of
appropriation relative to each body of water. One argument is that it may be possible if it does not interfere with the rights of
other owners, thereby not violating 981. Egs. Underground water is appropriated as part of land, the water body may be found
wholly on your land. Counterarguments: is not likely with respect to lakes and ponds as commercial use is not a NEED as per s
980(2) - here it appears that rights are limited to to use and service of land, otherwise go beyond the rights of others. Need to be
equal rights. 980(2) introduces an element that not there before. Commercial exploitation is probably not possible for running
water (981) without legislative change, but appears more viable wrt underground water (951). What about springs found entirely
on your land, which you can own, use and dispose of ? (981)

Morin c. Morin, [1998] R.J.Q. 23 (C.A.)