Rewarding Ownership, Valuing Possessors: Making Sense of Articles 957-962 of the C.C.Q.
MELANGES FRANCOIS FRENETTE, pp. 151-194, S. Normand, ed., Quebec City, Laval UP, 2006
44 Pages Posted: 11 Feb 2011 Last revised: 26 Feb 2011
Date Written: 2006
The Civil Code of Quebec attempts to regulate the compensation of possessors and corresponding rights of owners at articles 957 to 963. In doing so, the Code implicitly considers different factors ranging from the character of the possessor on the one hand to the nature of the expenditures on the other. As was the case in the Civil Code of Lower Canada, the Legislator has distinguished between good and bad faith possession, and between necessary and useful disbursements. The newer code also adds the third category of “amenities” to the mix. However, the CCQ applies these distinctions inelegantly both in formal and substantive terms. The formal drafting of the provisions in both French and English leaves much to be desired, changing what one might call the point of view or optic of the article from owner to possessor without apparent logic or rationale. Moreover, and more troubling, imprecise drafting leads to serious conceptual confusion, as we shall argue below, allowing for multiple interpretations of certain provisions with vastly differing outcomes with seemingly unjustified and incoherent rationales.
We attempt to clarify this confusion on a principled basis, first by outlining the underlying or animating justifications behind the provisions on compensating possessors, and second by identifying the problem. Throughout, we clarify how the valuation of the resource or object of property is important to the whole exercise. We suggest how the provisions must be understood in terms of logic, justice and fairness, and background property concepts. In short, we identify what we believe to be the proper balance to be struck in such cases, the balance which ought to be used as an interpretive guide to discerning the Legislator’s truest intent. This balance involves not only rewarding ownership but also valuing possession.
Keywords: Quebec Civil law, private property, possession, accession, specification, disbursements
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