Heritage preservation easements, urban property, and heritage law: Exploring Canadian common law and civil law tools for responding to international cultural preservation frameworks for cities

This article will first situate cultural heritage preservation in the urban context through an overview of notions of outstanding universal value, the role of cities in cultural heritage and municipal archaeology generally, paths toward the equitable and sustainable development of cities, and inclusive urban cultural rights in the context of cultural heritage where these appear within international law and guiding international legal frameworks for the protection of cultural heritage. The article will also discuss the notion of the ‘public good’ as it is applied within heritage preservation decisions and will also address the balancing of public and private interests in built heritage preservation. This article will further turn to the broad legal framework of cultural heritage protection for built spaces in Canada before narrowing in on the common law concept of a heritage easement agreement – notably, how it is and can be deployed in Canada – and the civil law conservation servitude as it is available in the Civil Code of Quebec.

Vulnerability and Volition in the Testamentary Law of Undue Influence and Captation

This article examines how contemporary analyses of vulnerability theory are reflected in legal approaches to undue influence and captation in the Canadian common law of wills and estates and in the Civil Code of Québec in the law of succession. Critical theorists point to the risks of assuming that vulnerability lies exclusively with the elderly and persons with disabilities. The equation risks oversimplifying matters, which could compromise the equality and dignity of members of these groups. There is also a risk of overlooking the harm that may be suffered by those who are victims of social or economic oppression. A more nuanced approach posits that vulnerability is a common human trait that cuts across social identities and experiences. Due to prevailing assumptions about vulnerability, this article hypothesizes that challenges to wills based on undue influence and captation will most often occur when the testator is elderly and/or has a disability at the time of execution of the will. Canadian common law and Quebec civil law jurisprudence are examined to assess this hypothesis. This analysis reveals that certain conditions do give rise to triggers heightened judicial scrutiny of wills, but that they do not in and of themselves determine legal outcomes. The case law thus suggests a moderate—but tempered—risk that courts will draw presumptions about age and capacity when assessing the presence of undue influence or captation. Perhaps more significant is the absence of challenges to wills involving young and healthy testators. Jurists might therefore wonder whether we are at risk of overlooking some cases of untoward conduct due to the conceptual associations we make between age, incapacity and vulnerability.

Part 2 National and Regional Reports, Part 2.6 North America: Coordinated by Geneviève Saumier, 67 Canada: Canadian Perspectives on the Hague Principles

This chapter examines Canadian perspectives on the Hague Principles. Canada is a federal state, with legislative competence over constitutionally designated fields divided between the federal and provincial level. Although private international law is not a listed field of competence, all three areas of private international law—jurisdiction, choice of law, and enforcement of foreign judgments—fall within the provincial competences over civil procedure or private law. The general provincial competence over choice of law means that each of the ten Canadian provinces could, theoretically, develop distinct regimes. In reality, however, the division is apparent only between Quebec and the other nine provinces. Indeed, Quebec is the only province within Canada to have a comprehensive codification of its private international law, which was adopted as part of the new Civil Code of Quebec in 1991. There is, therefore, a sharp contrast regarding the level of detail associated with the applicable regime in Quebec versus the rest of the country. Despite this, it remains accurate to say that, throughout Canada, the rules governing choice of law in contract, in particular party autonomy, are largely congruent with the Hague Principles.

Change of Terminology? Change of Law?

The provisions of the Civil Code of Québec dealing with Prior Claims and Hypothecs constitute an ambitious, although only partly successful, reform of the law relating to security devices. Given the policy objectives underlying any regime of security on property, three major problems with the new Code are immediately apparent: the failure to rationalize the scheme of non-consensual priorities and legal hypothecs; the failure to provide explicitly for an imperative regime of registration and realisation recourses governing any legal transaction which in substance functions as security on property; and the failure to redefine the concept of hypothec to account for its extension to universalities, and incorporeal property. Nevertheless, ordinary canons of codal interpretation give the judiciary sufficient resources to correct, by principled reference to the basic policy goals of this area of the law, most of the textual deficiencies in Book Six of the Civil Code of Québec.

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

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

Louisiana and Quebec Terminology as a Tool in Polish-English Legal Translation

While in the majority of English-speaking territories the dominant legal tradition is common law, in Louisiana and Quebec the native language is English and the legal system stems from continental civil law. Both the Louisiana Civil Code and the Civil Code of Quebec take root in the European codification movement, following Code Napoleon. Bearing in mind the link between law and language, these jurisdictions provide a unique source of English civil law terminology with well-founded conceptual background. The civil codes of Louisiana and Quebec seem to be potentially useful for the translation of Polish private law into English. Yet there are some reservations which should be considered. By comparing two different translations of Article 292 of the Polish Civil Code, this paper is intended to contribute to the debate on the use of Quebec and Louisiana terminology in Polish-English legal translation.

How Jean-Guy Belley Thinks: A Translator's Note

Why has Quebec proved such a fertile ground for the study of legal pluralism over the last generation? It is not that formalism in law is any less tenacious in Quebec than elsewhere, or that the state-made law is held in lower esteem. If anything, the fabled cult of enactment that characterizes modern civilian methodology has been exacerbated in the run-up to the adoption of the Civil Code of Québec and the twenty years since that moment. The mixed nature of Quebec legal sources, given that mixité is seen as much as a historical fact as the basis for a way of knowing law, cannot explain the wealth of scholarly attention devoted to diversity in law. Whether Quebec's brand of pluralism for law comes from factors such as linguistic and cultural diversity, an ongoing contact with Aboriginal law, or a special experience with religious law is a matter of ongoing speculation. But in the final analysis, it is not unfair to think that legal pluralism has flourished in Quebec because of the work of a handful of imaginative scholars who have invested their talent in this intellectual project.Professor Jean-Guy Belley is plainly one of their number. His work as a theorist of legal pluralism is celebrated in Quebec and well read in France. Yet his prodigious scholarly output is less well known elsewhere in Canada, where that work would likely be understood to have special relevance. Indeed, over the past ten or so years, Professor Belley has placed increasing emphasis on Anglo-American legal scholarship and common-law sources in his teaching and thinking about law. The translation of the foregoing essay has therefore been prepared at once as a respectful homage to a friend and colleague and in the hope that, in a modest way, it might encourage a wider readership for his important work.

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

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

Responsibility for Another’s Debt: Suretyship, Solidarity, and Imperfect Delegation

Legal evolution is often achieved by taking a fresh look at venerable institutions whose interpretation has become thwarted, constricted, or stale. Presumptions established to protect debtors and sureties at articles 1525 and 2335 of the Civil Code of Québec have prevented jurists from borrowing freely from the rules of solidarity and suretyship. Where one person is undoubtedly responsible for the debt of another, even in the absence of a suretyship agreement, the author argues it should be possible to apply the law of suretyship by analogy. Where two persons are each liable to perform the same obligation in full, it is likewise appropriate to apply the rules of solidarity. The author’s analysis proceeds in three parts: an introduction of the basic structure of suretyship and solidarity (Part I), a discussion of important differences in the law of suretyship and solidarity (Part II), and an argument that the solidarity and suretyship models should be used to illuminate analogous complex relations where multiple persons are responsible for the same debt (Part III). More specifically, in the situation of imperfect delegation, where a person assumes liability to a creditor for payment of a debt owed by another, but the original debtor is not discharged and remains liable in case of non-payment by the new debtor, it is appropriate to apply by analogy the law of suretyship.