NCA Quebec Civil Law Basics 4 — Questions and Answers
Question 1: In Quebec, the sale of residential real property is often completed using which instrument, and what is its legal significance?
- A deed of sale (acte de vente) notarized before a notary, which constitutes an authentic act and can be executed directly without court intervention (Correct answer)
- A simple written agreement signed by the parties and registered at the courthouse
- A transfer of title form filed electronically with the land registry
- An order issued by the Superior Court of Quebec
Correct answer: A deed of sale (acte de vente) notarized before a notary, which constitutes an authentic act and can be executed directly without court intervention
In Quebec, real property sales are typically concluded by a notarial deed (authentic act) before a notary. An authentic act has a special evidentiary status—it is presumed to be genuine and its content as to what the parties stated is proof against the parties. It can be executed (registered) directly.
Question 2: Under Quebec civil law, what distinguishes a 'co-ownership by indivision' (copropriété indivise) from a 'divided co-ownership' (copropriété divise)?
- Indivision: all co-owners hold undivided shares in the entire property; divided co-ownership (condominium): each owner holds exclusive title to a private portion and shared title to common areas (Correct answer)
- Indivision: only natural persons can be co-owners; divided co-ownership allows corporations
- Divided co-ownership requires notarization; indivision does not
- The distinction is only relevant for tax purposes, not legal ownership
Correct answer: Indivision: all co-owners hold undivided shares in the entire property; divided co-ownership (condominium): each owner holds exclusive title to a private portion and shared title to common areas
Copropriété indivise (CCQ art. 1010) means each co-owner holds an undivided share of the entire property. Copropriété divise (condominium, CCQ art. 1038) allows exclusive ownership of a private portion and co-ownership of common portions. Only divided co-ownership (condominium) can be established for residential use under the CCQ's special regime.
Question 3: A Quebec court is deciding a case involving a contract between two Quebec businesses with no explicit choice of law clause. The court applies which law?
- Federal law, since commercial contracts are a federal jurisdiction
- The law of the place where the contract was formed
- The CCQ and Quebec private law as the lex fori, unless conflict of laws rules mandate another jurisdiction's law (Correct answer)
- Ontario law, as the larger commercial jurisdiction
Correct answer: The CCQ and Quebec private law as the lex fori, unless conflict of laws rules mandate another jurisdiction's law
Quebec's conflict of laws rules are codified in the CCQ (Book Ten, Private International Law). Absent a choice of law clause, contracts are generally governed by the law of the place of the characteristic performance. A Quebec court applies its own (Quebec) procedural law and, unless conflict rules mandate otherwise, Quebec substantive law.
Question 4: The Quebec Civil Code recognizes which types of mandates (procuration)?
- Only agency contracts between merchants
- Mandate given in anticipation of incapacity (protective mandate) and ordinary mandate, both governed by CCQ arts. 2130–2185 and 2166–2174 (Correct answer)
- Mandate is not a recognized contract under the CCQ
- Only notarial mandates have legal effect
Correct answer: Mandate given in anticipation of incapacity (protective mandate) and ordinary mandate, both governed by CCQ arts. 2130–2185 and 2166–2174
Quebec law recognizes ordinary mandate (art. 2130) where one person (mandator) grants authority to another (mandatary) to act on their behalf. It also recognizes the protective mandate (mandat de protection / mandat donné en prévision de l'inaptitude, arts. 2166–2174), allowing a person to designate a mandatary to manage their affairs if they become incapacitated.
Question 5: In Quebec tort law, which doctrine imposes liability on an employer for harm caused by an employee in the performance of their duties?
- Respondeat superior, codified in CCQ art. 1463 (Correct answer)
- Vicarious liability under the common law transplanted into Quebec law
- Direct liability under CCQ art. 1457 only
- The doctrine does not apply in Quebec civil law
Correct answer: Respondeat superior, codified in CCQ art. 1463
CCQ art. 1463 provides that an employer (commettant) is liable for injury caused by a fault committed by an employee (préposé) in the performance of their duties, unless the employer proves it did not commit a fault in the selection, direction, or supervision of the employee or that the fault was not connected to the duties.
Question 6: What is the 'abuse of right' (abus de droit) doctrine in Quebec civil law?
- The exercise of a legal right in an excessive, unreasonable, or bad-faith manner that causes injury to another, which can give rise to civil liability under the CCQ (Correct answer)
- A criminal offence for misuse of position
- A ground for annulling contracts entered into under duress
- A remedy allowing courts to strip a party of an abusively obtained right
Correct answer: The exercise of a legal right in an excessive, unreasonable, or bad-faith manner that causes injury to another, which can give rise to civil liability under the CCQ
Under CCQ art. 7, rights must be exercised in good faith. The abuse of right doctrine (abus de droit) provides that one who exercises a right in an excessive, unreasonable, or bad-faith manner causing injury to another is liable in civil responsibility. The right is not extinguished, but its abusive exercise attracts liability.
NCA Quebec Civil Law Basics 4
In Quebec, the sale of residential real property is often completed using which instrument, and what is its legal significance?