Civil Law Property

Chapter II – Theory of Patrimony

S.1 Origin of the Patrimony: NOT Roman law, but is much more recent: first stated by Zachariae (German jurist) around 1810, then introduced into France by Aubry and Rau around 1850. However, looking at the SUBSTANCE of patrimony, it ties together many inter-related ideas that were well-established in Roman law and then evolved over time.

S.2 Definition of Patrimony

Patrimony is “an aggregate of rights and liabilities, in which the rights guarantee the liabilities.” (Ghestin)
“ A legal universality that groups rights or charges (present or future) where the rights guarantee the performance of obligations” (Baudouin)

S.3: Role of theory of Patrimony in the Civil Law Tradition

C. Aubry & G. Rau, Cours de droit civil français d’après la méthode de Zacharie

Theory of the Patrimony : The ‘ensemble de biens’ of a person (united and indivisible). It has a pecuniary value and includes debts as well as property. It is an outcome of the personality and an expression of juridical power. In pure theory, the patrimony comprises all property indiscriminately, notably innate or unborn property and property yet to be acquired.
3 Principles

1) Physical or moral persons have one patrimony (art 2)

2) Every person has a patrimony even if they own nothing

3) The same person can only have one patrimony in the true sense of the word

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Art 2	Every person has a patrimony. The patrimony may be divided or appropriated to a purpose, but only to the extent provided by law.
Art 302	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.

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  Unity and indivisibility codified [art. 2644]
  

  Art 2644

  The property of a debtor is charged with the performance of his obligations and is the common pledge of his creditors

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  Pat. cannot be divided,  all property of the person could eventually be used to live up to obligations
  

Necessary link b/n person (physical and/or legal) and a Patrimony:

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  Only a person can have one according to Aubry and Rau
  
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  Pat of persons is either 1) Pat of Human being and 2) Pat of Legal being  both have rights and obligations
  

J. Ghestin, Traité de droit civil : Introduction générale

Extra-Patrimonial rights: Those that cannot can be evaluated from a monetary standpoint (do not have pecuniary value).
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).
Universality ‘de driot’ the patrimony unites rights and debts at the same time; it consists of assets and liabilities that are inseparable from each other.

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  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: the alienable rights of which the debtor is titulary are sold by authority of justice and the price is attributed to the creditor. In other words: THE RIGHTS GUARANTEE THE EXECUTION OF OBLIGATIONS.
  
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  This is the factor of cohesion that allows the acquiring of new rights and obligations and is sustained even when certain elements disappear.
  
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   Patrimony is the ONLY judicial universality in Civil Law
  

Essential link between rights and liabilities: Art 2644 “The property of a debtor is charged with the performance of his obligations and is the common pledge of his creditors.” Art 2645 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’.

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  Art 2. says that “patrimony may be divided or appropriated to a purpose, to the extent provided by law.”
  

The Patrimony has 2 Characteristics (NB – the pat NOT pat rights):

1. 
   Indivisibility :
   
   1. 
      One sole patrimony per person.
      
      1. 
         Moral persons (eg. Corporations) can also have a patrimony.
         
2. 
   Not transferrable between living persons
   

Exceptions to the Patrimony

1. 
   Trust: Patrimony of appropriation is an exception to the rule (art 1260). Que allows establishment of trusts and foundations, effectively a new patrimony.
   
2. 
   Family patrimony: is another exception to the rule(art 414) i.e., identifying ‘net family property’ is not really a new patrimony, rather a conceptual distinction.
   

J.-L. Baudouin & P.-G. Jobin Les obligations Droits extrapatrimoniaux : l’ensemble des droits possédés par une personne qui ne sont pas en eux-mêmes appréciables en argent. Même les personnes morales peuvent jouir de droits extrapatrimoniaux liés à leur nature (liberté d’expression). Droits patrimoniaux : l’ensemble des droits de caractère économique et appréciables en argent, détenus par une personne physique ou morale. Il y a trois sortes de droits patrimoniaux : droits réels, droits personnels et droits intellectuels. Patrimoine : l’ensemble des droits (actif) et des obligations (passif) d’une personne physique ou morale, possédant une valeur pécuniaire ; c’est essentiellement une notion économique. Au décès du titulaire, il se transmet à ceux qui constituent sa personnalité. “ A legal universality that groups rights or charges (present or future) where the rights guarantee the performance of obligations Assets  Rights Obligations  Liabilities

M. Cantin-Cumyn, La fiducie, un nouveau sujet de droit ? Patrimoine d’affectation  Patrimony of appropriation La fiducie as something separate, an autonomous entity (distinct from both the idea of ‘trust’ in common law and “fiducia’ in Roman law.) Fiducie is not personalised  that is, it is not considered a moral person but rather a patrimony of appropriation Avoids irreducible incompatibility b/n the ‘trust’ and the ‘corporation’ in the common law tradition Actually, a human being, the subject of law and the person are three different things Fiducie becomes debtor, creditor and owner of its own ‘biens’  it becomes the subject of law. 2 Consequences of this as it cannot be said that la fiducie is a “moral person” 1. Has no rights to extra-pat rights (ie. driot de la personne) 2. Unable to hold an office (Exercer une charge), administer the property of another, act as fiduciary or as proxy  Can declare bankruptcy

S.4 Classification of subjective rights based on the concept of patrimony

A. Subjective Rights (both Patrimonial and Extra-patrimonial): The prerogative that a titulary exercises in his own interest.

1. 
   Patrimonial rights = PROPRETY
   

1. 
   Tramissible /can be alienated inter vivos, by gift, or mortus causa.
   

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  Are governed by K inter-vivos
  

2. 
   Seizable by creditors and can be liquidated to pay debts.
   
3. 
   Extinguishable by non-use (except ownership) or by prescription (art. 2921). (Although it is not stated explicitly in 2921, the provision only applies to patrimonial rights.)
   

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  Art 2644 – only property (i.e. patrimonial rights) can be reached by creditors
  
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  Art. 614; 625 – only property can be involved w/in successions
  
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  Art. 903 – wills can only involve property
  

4. 
   Monetary or Pecuniary Value
   

Exceptions to these:

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  (eg, the inalienability of prop see art 1212) as well as certain objects (see CB. p.74 CCP Art 553)
  
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  Pat. rights may also be extinguished at death (usufruct)
  

2. 
   Extra-patrimonial rights have an opposite regime.
   

a) Inalienable – They are not freely the object of contract/devise

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  Art. 8 – “No person may renounce the exercise of his civil rights, except to the extent consistent with public order.”
  
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  Art. 9 – “In the exercise of civil rights, derogations may be made from these rules of this Code which supplement intention, but not from those of public order.”
  
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  Art 10 re: inalienability
  
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  Art 24 Consent to infringement of the integrity it can be withdrawn (even verbally)
  
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  Art 1412 – “The object of a K is the juridical operation envisages by the parties at the time of its formation, as it emerges from all the rights and obligations created by the K.”
  
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  Art. 1413 – “A contract whose object is prohibited by law or contrary to public order is null.”
  
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  Art. 1610 – the right to damages in personal actions cannot be TF’d but in very certain circumstances.
  

2. 
   Not seizable;
   
3. 
   Non-prescriptible (will not become extinct).
   
4. 
   Extinguished at death (heirs have right to take action for pre death breach (art 625)
   

 However, recent authors have challenged this distinction (Cantin thinks rightly so). Now we see extra-patrimonial rights as rights giving value to fundamental and inalienable rights in our society. (i.e. civil status/capacity, citizenship, indiv. rts.)

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  View Buffered by Art 3 “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. (2)These rights are inalienable.” and Quebec and Canadian Charters
  

Patrimonial Rights : Transferable inter vivos (with exceptions 1212 and CCP art 553) Transferable at death (exception : usufruct) Seizable (exceptions : 552-553) Prescriptive extinction (exception : Right of ownership except for Acquisitive Prescription) Pecuniary value CAN BE OBJECT OF CONTRACT

Extra-Patrimonial Rights (Art. 3, 10, 24, 25, (10-31)) Innate rights Cannot be dissociated from the person Not transferable Unseizable Non-prescriptables Not affected by non-use (cannot be extinguished) social and human values Those that involve the integrity of the person Protection of privacy and rep Extra-patrimoniality of familial relationships CANNOT BE OBJECT OF CONTRACT

B. Respect of the body as an extra-patrimonial right

Art 10	Every person is inviolable and is entitled to the integrity of his person. (2) Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent.
Art 24	Consent to care not required by a person’s state of health, to the alienation of a part of a person’s body, or to an experiment shall be given in writing. (2) It may be withdrawn at any time, even verbally.
Art 25	The alienation by a person of a part or product of his body shall be gratuitous; it may not be repeated if it involves a risk to his health. (2) An experiment may not give rise to any financial reward other than the payment of an indemnity as compensation for the loss and inconvenience suffered.

Respect to the human body not as property

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  See art 10-31, 42-49
  
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  Dead or alive is not property
  
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  There are no ownership rights
  
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  Human cannot be the object of a K:
  

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  human cannot be the object of a K (that would be akin to slavery – thus our employment Ks now are strikingly distinct from slavery type (a.2085,2094)
  

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  adoption cannot proceed on the basis of K, must follow legal procedure (a. 543)
  
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  procreation/gestation Ks are null (a. 541)
  
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  no transaction or arbitration can be made with respect to status/capacity of persons (a.2632, a. 2639)
  

“Le droit des personnes physiques” E. Deleury and Goubau : La personne en son corps ; l’éclatement du sujet Art. 11-25 Il est important de noter que dans le nouveau code civil, le législateur fait de la gratuité une condition impérative pour le don d’une partie du corps humain. Ce faisant, il garantie la liberté du consentement. Art 25. Le corps humain est tout à la fois sujet et objet, sujet dans l’expression de sa liberté, mais objet aussi quand les impératifs de la santé publique sont en cause et qu’il s’infiltre dans les mécanismes du marché sous la forme de choses.

Hidden Trade in Albanian babies’organs (newspaper article)

Albanian prosecutors suspect that the organs of missing children are being sold for transplant and that other infants are being stolen for adoption abroad.

Another article deals with: Kidney trade in SA and Brazil
Regarding Employment:

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  Slavery before, but now we have the principle of equality--- stringent rules that deal with contracts of employment. You can break contracts if you desire:
  

Art 2085 defines contract of employment

Art 2094 states that you can break an employment if you desire (with a serious reason)

-Prostitution is against public order.

C. Respect to image, reputation and privacy

 Refer to Articles 3, 35, 36 (and others to up 41)

Case: Torrito v. Fondation

Torrito v.Fonation Lise T. pour le respect du droit a la vie [1995] C.S. et a la dignité des personnes lourdement handicapées
Facts: Pl. seeks an interlocutory injunction. PL’s daughter severely handicapped and dies D was care-giver during life of childe and forms foundation using the name and photos of the child to assist persons in similar situations. D did not obtain consent for use of name, image, story. Issue: Use of child’s name, image and story without consent Claims by parents on dead child’s behalf for privacy Claim by parents as to their own right of privacy Decision: Interlocutory Injunction granted	Ratio: Affirms that the right to name, image and story are not a property right, therefore are inalienable - can only be used with consent and, after having given consent, one does not give up right to image. Does not matter if pics taken in good faith The event did not take place too long ago (occurred quite soon after photos used) PL did not renounce privacy  it was assumed that there was a renunciation of privacy, but, renunciation must be proven  NEVER assumed in Civil Law Public Interest does not apply as only applies in certain cases  public person, people in politics  NOT FOR PRIVATE PERSON
Notes: Injunction: parents claimed and were granted an interlocutory injunction in order to have the pics stop being used immediately In Torrito, parents “wearing 2 hats”: Claiming damage for invasion of their own privacy. Tried to claim as heirs of their daughter (Art. 625(3)) (took pics of girl while she was alive without permission, contra art.35 & 36) Although personality rights are extinguished at death, the right to take action for the personality right is transmitted to the heirs. Had privacy been invaded post mortem the heirs would have had no right to claim.

Case: Laoun v. Malo

Laoun v Malo [2003] C.A. Que
Facts: PL (Malo) agrees to use her image in advertisement for Silhouette – signed K with D and was paid D later reused photo of PL without getting the consent of PL Claims breach of personality rights  Art 35, 36 Issue: To what extent original authorization would permit further use of the image Decision: Decision – Image and right to privacy is non-transferable Damages for both patrimonial and extra-patrimonial rights	Ratio: Consent of the PL to Silhouette to use the image of the PL does not bring with it the consent for the D to use the image One contract of consent does not extend to continued use of the same image unless the contract otherwise specified One does not presume that one renounces the right to one’s privacy  Renunciation can not be assumed Person may have copyright of photo (which may very well be the case) does not give the right to use the image for purposes other than that authorized for by the PL Not transfer of privacy – temp. renunciation
Notes: B/c one allows the use of the image, one does not give up the right to that image  Use of that image only extents as far as contract allows it to extend Must balance freedom of information with right of privacy

Cantin on Laoun v. Malo

How are we to characterise that contract? (Imagine that payment is made)

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  Not a transfer of right of that image or right to privacy (art 3(2))  Not a contract of transfer  Close to a contract for services
  
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  Person signing such a contract is renouncing the right to privacy and therefore must be interpreted very narrowly
  
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  Could reneg on contract as is not a transfer of right (would have to give back money) but is renunciation
  
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  Person allowed to use the image cannot allow another to use image as there is nothing to transfer
  

D. Professional secrecy rights are personal and extra-patrimonial rights.

Case: Laprairie Shopping Centre

Laprairie Shopping Centre Ltd. (syndic bankruptcy) v. Me Reevin Pearl [1998] C.A. Que Appl. acting as trustee in bankruptcy. Resp. is a lawyer previously representing bankrupt, objected to one of app.’s questions during interrogation re: bankrupt. App. advised resp. that it was renouncing the privilege of confidentiality. Resp. says that app. cannot renounce this privilege. Issue: Do the powers of the trustee extend to the rights attached to the person of the bankrupt? Held: First, the trustee is a hybrid, being at the same time the assignee of the debtor’s rights and the representative of the creditors. However, no authority has dared suggest that the trustee in bankruptcy continues the personality of the bankrupt in questions other than those linked to his property or pecuniary rights, whether they be corporeal or incorporeal. The trustee in Bankruptcy cannot renounce the personality rights of the bankrupt  extra-pat right

Cantin on Laprairie

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  Professional secrecy rights are personal and extra-patrimonial rights. Taking account of the non-transmissibility which flows from this, and the fact that the trustee does not continue integrally the person of the bankrupt, we must conclude that the right to confidentiality does not devolve to the trustee and that he cannot therefore consent to renounce it.
  
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  NB – if one is a big fan of market forces – then one will not like this application…
  

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  Regarding the sale of a business, usually the contracts of sale include the files and clients. Cantin-Cumyn: people probably do not think about what they are doing, but it is problematic to transfer these confidential files (especially with respect to law medicine) without the consent of the patients and/or clients (art. 37-41 CCQ).
  

E. Extra-Patrimoniality of the Family Relationship

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  Reciprocal rights and obs of support that exists b/n close family relations (art 32-34, 585-596)
  
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  There is ob to support and maintain b/n spouses and with children (as well as in divorce)
  
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  Generally, this ob is looked after w/in the family…But…Sometime not:
  
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    Will take form of alimony payments  Creditor and debtor situation
    
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    Periodical sum of money (art 587) which will depend on means of debtor and means of creditor
    
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  Any violation, as far as civil recourse in terms of extra-pat rights, are sanction by damages (not prison) and injunction (we do look at the money as the sum of the right)
  
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  Alimony looks like extra-pat 
  
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    Cannot be transferred
    
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    Cessation with death (although continues for six months after death (art 684)
    
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    Unseizable (well, only can be seized to pay alimony to another (a child))
    
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    Not extinguished with time