McGILL LAW JOURNAL
[Vol. 2
DUCHESNEAU v. COOK1
CIVIL LAW –
SALE WITH RIGHT OF REDEMPTION
–
RE-ALIENATION BY
BUYER TO SELLER –
SELLER’S RIGHT pendente conditione, wHETHER
in re OR ad rem –
Sirois v. Carrier NOT OVERRULED.
A number of interesting points of law came up for discussion by the courts
in this case, but it is here intended only to consider one of them: the position
of the seller pendente conditione in a sale with right of redemption.
The facts are as follows. De. Duchesneau was separate as to property and
was living apart from her husband. Having at her disposal $2,500. of the
nature of personal earnings and savings, she borrowed a further $500. from
her father and with the whole sum purchased three immoveable properties
(one of them hypothecated), the seller reserving a right of redemption. Sub-
sequently the seller brought an action for the annulment of the sale on the
grounds of De. Duchesneau’s general incapacity (as a married woman), which
was allowed by Marquis J. in the Superior Court. De. Duchesneau appealed
and the Court of Queen’s Bench affirmed the judgement of the court below2
(Marchand and Gagn6 JJ. diss.), but on a further appeal the Supreme Court
reversed the previous decisions by a unanimous judgement.
As the purchase price consisted only partly of “biens r~serv&s”, governed
by Article 1425a of the Civil Code, one of the main points at issue was the
interpretation of Article 1422.4 It was held by the majority in the Court of
Queen’s Bench that the possible future exercise of the right of redemption
by the seller and the accompanying retrocession by the buyer to the seller
would amount to an alienation of the immoveables and would thus fall under
the express prohibition of Article 1422 C.C.. This being so the contract of
sale should be annulled.
In reversing this decision, the Supreme Court held unanimously that the
exercise of the right of redemption by the seller did not involve the buyer
‘[1955] S.C.R. 207.
2[1954] Q.B. 337.
3Article 1425a C.C.: Under all the systems, and subject to the penalty of nullity of
any covenant to the contrary, the proceeds of the personal work of the wife, the
economies therefrom and the moveable or immoveable property acquired by her by in-
vesting same are reserved to the entire administration of the wife. The wife may, with-
out authorization, demand even before the courts, the property so reserved and may
alienate same by onerous title. Such property shall not include the earnings from work
jointly carried on by the consorts.
4Article 1422 C.C.: When the consorts have stipulated by their marriage contract that
they shall be separate as to property, the wife retains the entire administration of her
property moveable and immoveable, the free enjoyment of her revenues and the right to
alienate, without authorization, her moveable property. She cannot, without authorization,
alienate her immoveables, or accept a gift of immoveables.
No. 2]
CASE AND COMMENT
in an alienation, that such exercise must be considered as the operation of a
condition resolving the contract ab initio and not as a new alienation. Will
this decision bring about any change in the position of the seller in the
Province of Quebec who reserves to himself a faculty of redemption?
Up to now the position of the seller with right of redemption was held to
be governed by the decision of the Court of King’s Bench in Sirois v. Carrier,5
which is generally accepted as having laid down the rule that, pendente con-
ditione, the seller retains only a personal right ad rem in the object sold, and
not a right in re.6 One re-reading the judgement of Blanchet J. in Sirois v.
Carrier some doubt appears as to whether or not in actual fact the case is
authoritative on this point,7 but it has been cited so many times8 that by now
the issue must be taken to be finally settled. As Professor Louis Baudouin
writes :9 “La jurisprudence Qu~becoise d6cide que .
. . le vendeur i. r&nr6
se d~pouille de tous ses droits de propri&t6; il ne conserve qu’un simple jus
ad rent dans la chose vendue..
”
This is also the doctrine of the old law,10 as expounded by Pothier.
However, in none of the cases which follow the Sirois v. Carrier decision were
the courts called upon to decide the precise question as to whether or not
the exercise of the right of redemption actually involved a new alienation
on the part of the buyer; and the measure of the change brought about by
the decision in Duchesneau v. Cook will depend on how far one can say that
there is a direct relationship between the nature of the right which the seller
retains in the object sold, and the buyer being held not to re-alienate when
the redemption right is exercised.
At first glance it does not appear too difficult to establish this relationship.
If the seller is held not to retain a right in re, but merely a personal right
ad ren, it would seem to follow that in order for him to redeem the real right
5(1904), 13 KB. 242.
The seller’s right to hypothecate an immoveable property pendente conditione was
upheld by the court of King’s Bench in the case of Edwards v. Royal Bank (1925), 38
KB. 136, but this decision can be regarded as creating an exception to the general rule.
. il ne parait pas n~cessaire de formuler une
7The learned judge said, at p. 248: ” ..
opinion definitive A ce sujet
81n Lepage v. Letourneau (1911), 20 K.B. 266; Edwards v. Royal Bank (1925) 38
KB. 136; Levasseur v. Pelletier (1911), 40 S.C. 490; Martec v. Perras (1924), 62 S.C.
152; Turgeon v. Barras (1935), 73 S.C. 537 and in Robitaille v. La Cie d’Assurances de
Stanstead [1948] S.C. 443.
9In “Critique des Arr~ts”, 1955 Revue du Barreau 383, in which the other points raised
by the Supreme Court judgement are discussed. Professor Baudouin’s view of the
authority of Sirois v. Carrier is confirmed by Mignault, Droit Civil Canadien, vol. 7,
p. 154. See also Professor Roger Comtois, “Case and Comment”, 33 Can. Bar Review,
1074.
U’rodification did not change the law. See Codifiers’ Fourth Report, at p. 16.
‘1 7raiti de Vente, no. 387.
McGILL LAW JOURNAL
[Vol. 2
of ownership from the buyer, the latter must re-alienate that ownership
to him.’ 2
Although it is not expressly so stated, this is the argument implicit in the
judgement of the majority in the Court of Queen’s Bench, in which Sirois v.
Carrier is cited as authoritative. For example, McDougall J. said :1 “It …
becomes necessary to determine whether, in the case of a sale with right of
redemption, upon the exercise of the right there is a transfer of property
from the buyer back to the seller. This court dealt with the problem
in Sirois v. Carrier…. This judgement was followed in Lepage v. Letour-
and in my opinion they should
neau …
defendant, in the present case, obliged herself by the redemption clause
be –
a re-
to reconvey –
conveyance by the defendant should amount to an alienation by her… ”
If these cases are to be followed –
conditionally if you like –
property to the plaintiff .
It should be emphasized again that the cases cited in the above passage are
not precisely authority for the proposition that the buyer does not re-alienate,
but rather for the proposition that he seller retains merely a right ad rein.
If the argument implicit in the judgement of the majority of the Queen’s
Bench is correct then its converse would also presumably be true, viz: if the
Supreme Court holds (as it did) that there is no new alienation upon the
exercise of the redemption right, it would then appear that the seller has
preserved a right in re from the time of the original sale. In other words, the
decision of the Supreme Court would, on this view, have the effect of re-
versing the rule laid down by Sirois v. Carrier.
It is, however, suggested that this conclusion is wrong and that the
Supreme Court should not be held to have reversed Sirois v. Carrier.
In the first place, while there are grounds for disagreement as to the nature
of the right retained by the seller, it appears incontestable that there is no
re-aliefiation to him when the redemption right is exercised. Sale with right
of redemption is sale under a resolutive condition, the operation of which
depends upon the will of the seller. According to Article 1088 of the Civil
replaces things in the same state as if the
Code: “A resolutive condition …
. ” On the exercise of the faculty of redemption
contract had not existed ..
the seller does not acquire ownership from the buyer, and the buyer does not
re-alienate to him, since the seller is regarded as having always been owner.
In the second place it is contended that it does not follow from this resoluble
nature of sale with right of redemption that the seller must necessarily retain
a jus in re. As was suggested above, it is not necessary to postulate a real
right retained by the seller in order to explain his resumption of ownership –
he resumes his original right of ownership which was suspended until he
exercised the faculty of redemption.
12Miss Gertrude Wasserman, of the Montreal Bar, commenting on the Queen’s Bench
decision in 32 Can. Bar Review 666, took this view (see p. 669).
13[1954] Q.B. 337, at p. 338.
No. 2]
CASE AND COMMENT
Moreover it is suggested that this suspended right of ownership retained
by the seller does not necessarily confer upon him, pendente conditione, a
real right in the object sold.
In volume 7 of his Droit Civil Canadien, Mignault wrote :14,… l’acheteur
est propri~taire sous condition r6solutoire et le vendeur sous condition sus-
. r~m&r6 conserve, malgr6 la vente, un
pensive. C’est dire que le vendeur
droit r~el dans la chose, un jus in re et non pas seulement un jus ad rein.”
Given that the seller who reserves a faculty of redemption is owner of the
object under a suspensive condition, 5 does this suspended right of ownership
necessarily give the seller, pendente conditione, a right in re?
Mignault himself observed :16 “La condition suspensive est celle qui suspend
l’existence mfme de l’obligation.” What is true of an obligation is here also
true of a right, in this instance the right of ownership. The condition suspends
the very existence of the right. Mignault employed the commonly accepted
meaning of the verb “suspendre”, viz: “To render temporarily non-existent.”
In the case in point the seller’s right of ownership is suspended, i.e. tempor-
arily non-existent, until such time as he redeems it. Until that time his sus-
pended right is replaced by another right, entirely distinct from the suspended
one, a right which is not necessarily a right in re, but which could be either
real or personal.
According to the provisions of the Quebec Civil Code and the principles of
the old French law on which they are based,17 the right retained by the
seller under redemption right contains elements of a real as well as a personal
character, but it is plain that the personal element predominates. Pothier
placed the action available to the redemption seller in the category of “actions
mixtes” which are, “principalement et par leur nature, actions personnelles.”18
And in the Traitg de Vente’ 9 he wrote that the seller’s right was, “….
pro-
prement jus ad rent plut6t que jus in re.” In the Civil Code the element of
14At p. 154.
5This proposition has not gone unchallenged. In a note appended to a report of a
decision of the Court of Cassation (Ch. Req. 23 Aofit 1871, D.P. 73. 1. 321), B. Cazalens
wrote: “… nous contestons absolument la pr~tendue correlation en vertu de laquelle la
condition appos~e i un contrat translatif de propri&6 jouerait tout i la fois le r6le de
l’6gard d’une partie et de condition suspensive A l’6gard de l’autre;
condition’ r6solutoire
nous tenons, au contraire, que la condition est toujours suspensive ou r~solutoire vis-A-vis
des deux parties indistinctement, selon que ]a convention a 6t6 contract& sous une con-
dition suspensive ou une condition r~solutoire. La condition suspensive a pour but et pour
risultat de cr&r des droits nouveaux; c’est la condition r~solutoire seule qui fait revivre
des droits anciens. temporairement an6antis.” Actually Cazalens’ argument is of little use
to determine the precise nature of the right retained by the seller with right of re-
demption chiefly because it is difficult to see any difference between rights which are
suspended and those which are “temporairement an~antis.”
16Droit Civil Canadien, vol. 5, p. 433.
17 See footnote 10.
18Introduction Ginirale aux Coutunes, no. 122.
‘0 No. 387.
McGILL LAW JOURNAL
[Vol. 2
‘realty in the seller’s right is introduced by Article 1552, when the object of
the sale is an immoveable.20
The doctrine in France has generally upheld the view put forward by
Mignault, but among the modern authorities Colin et Capitant maintain that
the seller retains a jus ad rem.2 1 There is a long line of French jurisprudence.
to the same effect,22 including an interesting decision in 1885 in which the
Cour de Cassation held that the buyer had a real action against a third party
in possession of the immoveable which was the object of the sale, but only a
personal one against the original buyer,23 and an edrlier one 24 which suc-
cinctly denied that the resolubility of the sale involved a retention by the
seller of a right in re.
There is thus a considerable weight of authority to support the principle
which was laid down by the Court of King’s Bench in Sirois v. Carrier, and
it is contended both that the seller who reserves a faculty of redemption pre-
serves merely a jus ad rem in the object sold, and also that there is no re-
alienation to him by the buyer when the faculty is exercised. This is the
opinion of Colin et Capitant, Pothier and the French jurisprudence.25 This
view is in opposition to that put forward by the majority of the Court of
Queen’s Bench in Duchesneau v. Cook, in which it was implied that the
preservation by the seller of a mere right ad rem must of necessity result,
upon redemption, in a re-alienation to him by the buyer.
In the Supreme Court, however, Fauteux J. denied the validity of this line
of reasoning. He said,26 “S’appuyant sur ces decisions d&larant que, dans
une vente A r6m&r6 et pendente conditione, l’acheteur a un jus in ro et le
vendeur un jus ad rem sur la chose faisant objet du contrat, on en d~duit que,
lorsque ]a facult6 de r~m6r6 est exerc6e, l’acheteur riali~ne au vendeur l’objet
de la vente …. cette conclusion ne d~coule pas de ]a pr&nisse sur laquelle
elle s’appuie, …
20Article 1552 of the Quebec Civil Code: “The seller of immoveable property may
exercise his right of redemption against a second buyer, although the right be not
declared in the second sale.”
21Tenth edition, 1948, vol. 2, p. 639, no. 969.
22Notably Cour de Cassation Ch. Req. 21 Dec. 1825 (De Villeneuve et Carette, Re-
cueil Giniral des Lois et des Arrits, vol. 8, jurisprudence de la Cour de Cassation p. 243)
confirming two decisions of the Court of Besanqon, and Cour de Cassation Ch. Req. 23
Aofit 1871 (see note 15), which contains a list of the jurisprudence and doctrine on the
question up to that date. Both the above decisions are cited in Dalloz, Code Annote, 1905,
vol. 4, sub Article 1659, no. 40; Dalloz, R.pertoire Pratique, vol. 12, p. 736, “Vente”,
no. 1860; and also in Fuzier-Herman, Code Civil Annoti, 1940, vol. 5, p. 590, sub Article
1666, n. 2.
23Cour de Cassation, Cr. Req., 17 Feb. 1885, (S. 1885. 1. 311.)
24Cour de Cassation, Ch. Req., 21 Dec. 1825 (see note 23).
25Locs. Cits.
26[1955] S.C.R. 207, at p. 218.
No. 2)
CASE AND COMMENT
167
If the reasoning of the learned judge is correct, one can infer that a decision
holding that there is no new alienation by the buyer when the redemption
right is exercised does not establish the rule that the right of the seller
pendente conditione is a right in re. It is submitted that this is actually the
case and, in spite of appearances to the contrary, the decision of the Supreme
Court in Duehesneau v. Cook does not have the effect of overruling the
principle laid down by the Court of King’s Bench in Sirois v. Carrier.
D. A. B. STEEL*
*Second Year Student.
