Class 1 Introduction and the Civil Law Tradition Sept. 5 3
J.E.C. Brierley, “Quebec’s ‘Common Laws’ (Droit communs): How Many Are There?” in Mélanges Louis-Philippe Pigeon
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- J.M. Brisson, “Le code civil, droit commun” in P.A. Côté, ed., Le nouveau code civil: interprétation et application
- Federal private law limits QC’s capacity for codification of private law.
- Does the code contain all law, or is this a myth
- Consumer Protection Act
- [Ross]
- CCQ – Droit Commun Substantie CCQ was created to fill gaps between CCBC and external law. Fundamental change was required it had to move from utility
- Harmony
J.E.C. Brierley, “Quebec’s ‘Common Laws’ (Droit communs): How Many Are There?” in Mélanges Louis-Philippe Pigeon(Montréal: Wilson & Lafleur, 1989) at 109-128 (edited). - The Civil Code is droit commun in a special sense, in both its own right and in its relation to other enactment. It has the status of a “common law” in its own right b/o the scope of its regulation and the language in which it is expressed. It defines and set out – it constitutes – the most fundamental categories and concepts that provide the cadre of Quebec legal thought in one of its main branches, the private law, and this mode of thought extends even beyond the private law to permeate other fields of legal regulation. The Civil Code is droit commun in relation to other enactment b/c it is the fundamental reference point from which such other legislation proceeds. The structure of the Civil Code assumes a central importance, therefore, in its own continuing vocation as a droit commun. It is, unlike other encasements, an expression of droit commun b/c its scope includes a range of topics organized into a unified whole that appears to take on a life of its own and even though, conceivably, any one of its parts might be subtracted from it and thereby stand alone. The Civil Code is a statement of general, permanent and fundamental importance about the individual person as such in the law. But while the vocation of the Civil Code as the droit commun of private relation is, in these several ways, a primary one, it is not absolute. Other enactment can complement or derogate from the regimes of the Code. In current thinking, the symbolism and technique mesh well with the elevation of a range of “civil” or “private law rights” into a new dimension of fundamental public law. The Civil Code remains an expression of droit commun even though its provisions are not always imperative in character. Indeed a hallmark of the regulation found within the Civil Code is to provide for “suppletive” legal rules. The Civil Code, in itself an expression of droit commun in these various ways, may provide for the continuing incorporation of other expression of droit commun drawn from other normative systems, quite apart from those offered by its own history or by its own necessary supposition of implicit norms. Conclusion: there is a multiplicity of droit commun in Quebec’s civil law. Droit commun is a term designating different realities, not a single idea. The idea of a “droit commun” is, after all, no more than a technique by which to acknowledge the existence of a particular set of “sources of law” – or, more correctly, a range of general norms – that are found to be commonly applicable in the event that no derogation to them has been made by another set of more specific norms. The expression of the droit commun may be contemporary or derive from a more remote time, may be explicitly articulated or only implicitly acknowledged, and may flow from a national system of law or derive from other points of reference. It must strive to be open rather than closed - a receptive rather than a narrow conception of law. J.M. Brisson, “Le code civil, droit commun?” in P.A. Côté, ed., Le nouveau code civil: interprétation et application(Montreal: Thémis, 1992) at 292 To what extent in contemporary law does the objective of a code to be a residual jus commune hold true? Federal private law limits QC’s capacity for codification of private law. Quebec jurisdictional power to make laws in the private realm was diminished by the fact that certain areas of law came under federal jurisdiction (federal private law), e.g. bankruptcy, marriage and divorce, intellectual property, Bills of Exchange Act, etc. (as compared with France that could codify all of its civil law). Does the code contain all law, or is this a myth? At its inception, the CCBC was seen as << un tout autonome>> and could be seen as < 3 types of legislation that undermine the notion that Code is jus commune: Other QC statutes: Employment statutes, etc. Non-discrimination provisions (e.g. in rental agreements). Many directly contradict the Code, debunking the notion that the Code is the foundation. Consumer Protection Act: Code tracks specific legislation & integrates it into its basic provisions. Ex: consumer K is ____. Ex: Interpretative rules (contra proferentum rule: “in all cases re consumer Ks, doubt is resolved in favour of consumer.”) When the laws were applied, much of the time civilian methodology of using general principles was not used. Ex: primacy of fault displaced in CSST & SAAQ regimes, contrary to fault-based X-K scheme. Federal private law powers under CA (Interest which overlaps with private law under QC jurisdiction). Federal laws leave out certain details, which are meant to be filled with provincial laws [Ross example]. The suppletive nature of civil code makes it such that there is less an interaction between federal and civil law than a superposition of one law (federal) over another (civil). Serves more of a utilitarian function than a common, unifying law for Quebec. Ex: Bills of exchange act (Fed) says any promissory note must have valid consideration (CML sense). How do we take this in Civilian jurisdiction? Do we look to civil “equivalent” (cause)? QC CA split decision. Use civilian notion for that aspect? ([Ross] case about promise to pay 100K to McGill)); QCRF: Compare pre-QCRF case law (freedom of K included freedom to discriminate) to post-QCRF. Ex: Articles of Code reproduce articles of Charter (arts. 3, 10, 35, and others). Jukier: it is a mistake to say that the Code is the inspiration of other legislations. CCQ – Droit Commun Substantie CCQ was created to fill gaps between CCBC and external law. Fundamental change was required it had to move from utility to substance. La modernization du droit civil fondamental
Necessary conditions for the continuation of a droit commun: Harmony with the foundational system (treat it like other laws and modify as necessary); Take as much as possible from its intrinsic qualities when interpreting other laws. THE ONLY WAY THAT THE CODE CAN EXERCISE A CONCEPTUAL FUNCTION IS TO CONTINUE TO OPERATE AS A DROIT COMMUN BY ENSURING HARMONY B/W PARTICULARE LAW & CONDAL PROVISIONS. The Code is no longer the droit commun of the private law. It is time to reconceptualize its purpose to reflect its capacity to contribute to law based on certain qualities: General and guiding principles Supposed to be congruent now with the Quebec Charter and other statute, such as Comsumer Protection Act, etc. CCQ CHANGED TO HARMONIZE W/ NEW STATUTES & LEGISLATION! Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law? Download 0.68 Mb. Share with your friends:
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