Mc GILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 32
Montreal
1986
No l
Enforcing Rights in Corporeal Moveables: Revendication and
Its Surrogates
Part Two*
R.A. Macdonald**
Focusing on remedies for vindicating rights
in corporeal moveables, the author reviews
how the action in revendication and its sur-
rogates may be deployed today to protect these
rights. In particular, the author examines how
the changing conceptions of corporeal move-
ables have challenged some of the basic prin-
ciples of the 1866 Civil Code of Lower Canada
inducing courts to develop new applications
lbr traditional remedies.
Portant son attention sur les recours concer-
nant les droits mobiliers corporels, l’auteur
discute de la faqon dont l’action en reven-
dication et ses substituts peuvent 8tre utilis~s
pour protfger ces droits. L’auteur examine en
particulier les retombes de l’volution des
conceptions de la notion des meubles cor-
porels sur certains des principes de base du
Code civil du Bas-Canada de 1866, en inci-
tant, notamment, les tribunaux A d6velopper
de nouvelles applications des recours tradi-
tionnels.
‘Part I of this article appeared in volume 31(4) of the McGill Law Journal. The final part
ill appear in volume 32(4).
**Dean of the Faculty of Law, McGill University. I should like to record my thanks to my
colleagues Professors J.E.C. Brierley and Christian Atias, who kindly read and commented
upon the major part of material appearing in this section of the study. They bear no respon-
sibility for opinions expressed herein, many of which they would explicitly reject. I should also
like to signal some additions to the notes to Part One of this essay.
To note 8 should be added: S. Goyard-Fabre, Kant et le problhme du droit (Paris: Librairie
philosophique J. Vrin, 1975) at 114, 117-18 and 123, who discusses phenomenal and noumenal
understandings of possession. To note 93 should be added: R. Houin, “Les situations de fait”
(1958) R.I.D.C. 81; G. Morin, “Le sens de l’volution contemporaire du droit de propriftV”
in Le droit priv francais au milieu du XXe sicle: Etudes offertes 4 G. Ripert, vol. 2 (Paris:
L.G.D.J., 1950) 3 [hereinafter Etudes Ripert]; R. Thfry, “De l’utilisation A la proprit6 des
choses” in Etudes Ripert, supra, 17; R. Savatier, “Structures matfrielles et structuresjuridiques”
in Le droit privfran~ais au milieu du XXe sibcle: Etudes offertes et G. Ripert, vol. 1 (Paris:
L.G.D.J., 1950) 75; and the essays in (1957) 11 Tray. Assoc. Henri Capitant. To note 101
should be added: C. Giverdou, “La qualit6, condition de recevabilitE de l’action en justice”
D. 1952.Chron.29; R. Gasin, La qualit6 pour agir en justice (doctoral thesis in law. Universit6
d’Aix-Marseille, 1955) [unpublished]. Finally, to note 157 should be added: J.-L. Bergel, “Dif-
ference de nature (dgale) difference de regime” [ 1984] R.T.D. C2iv. 225 who directly asks whether
a legal right can exist prior to its sanction with a judicial remedy. It is obvious that this study
answers Bergel’s question in the affirmative, although it is to be observed that this does not
imply a subservience of remedy to right: ontologically the right is prior; however, its content
may often be apprehended only post hoc.
McGill Law Journal 1986
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 32
Synopsis
2.
3.
4.
5.
Titularies of Personal Rights
a. Titularies of Execution Preferences
i. Privileged Creditors with Detention
ii. Privileged Creditors Not Having Detention
iii. Other Privileged Creditors
b. Titularies of a Personal Right Implying a Custodial
Obligation
i. Those Who May Not Use an Object
ii. Those Who May Use an Object to the Benefit of Others
c. Titularies of a Personal Right of Enjoyment
Titularies of Future, Conditional and Eventual Real Rights
a. Potential Owners with Physical Control
b. Potential Owners out of Possession
Other Holders of Corporeal Moveables
Towards a Theory of Plaintiffs in Revendication
C. Limitations on the Action in Revendication
1.
A Third Party Has Acquired the Object
a. Material Transformation
.
The Object Has Become Immobilized
ii. The Object Has Become Incorporeal
ii. The Object Has Become Part of.Another by Accession
b. Legal Transformation
i. Partition
ii. Judicial Sales, Forced Sales and Sales by Licitation
iii. Acquisitive Prescription
iv. The Object Is Re-Transferred by a Transferor in
Possession
Informal Consumer Installment Sales
v.
vi. Illegal and Immoral Conditions in Wills
1986]
ENFORCING RIGHTS IN MOVEABLES
2.
3.
4.
5.
The Underlying Right Has Been Lost, Extinguished or
Surrendered
a. Extinctive Prescription and Other Lapses of Time
b. Failure to Comply with Other Conditions for
Revendication
Inter Partes Limitations on Revendication
Imposed Indivision
c. Contractual Renunciations
Loss or Limitation of the Action in Revendication Per Se,
without Loss of the Underlying Right
a.
i.
ii. Ordinary Consumer Installment Sales
b. Limitations on Revendication as against Third Parties
i. Protected Sales and Pledges
ii. Partially Protected Sales and Pledges
iii. Protected Sales of Automobiles
c. Statutory Transfers
Possessory Security Devices and Seizures in Execution
a. Rights of Retention
b. Ordinary Seizures in Execution and Private
Realizations
c. The Object Is Seized by a Lessor Exercising a Privilege
Revendication and Title-Washing
a. Where Title Is Washed
b. Where Title Is Not Washed
c. The Relativity of Title- Washing
D. Exercise of the Action in Revendication
1.
2.
3.
4.
The Plaintiff
The Defendant
Procedural Considerations
Situating the Action in Revendication
*
*
*
REVUE DE DROIT DE McGILL
[Vol. 32
2.
Titularies of Personal Rights
In the analysis undertaken to this point,
76. Revendication of Possession –
the revendicating plaintiff has been in each case asserting an actual real
right (jus in re) in the object being revendicated. It is now appropriate to
consider whether the action in revendication in Quebec may be invoked as
a possessory as well as a petitory recourse.’ In other words, will the action
lie to vindicate the claims of plaintiffs who have, at best, a jus ad rem
relating to a corporeal moveable?
The civil law knows three general types of personal rights implying the
detention of corporeal moveables: first, where a person has a custodial re-
lationship with an object, but may also claim a right to use it to his own
profit; second, where a person holds or claims custody of a moveable as a
collateral consequence of a non-title contract of which he is a creditor; and
third, where a person has a custodial relationship with an object, but cannot
claim a right to use it to his own profit.2 These relationships mirror the
categories of real rights reviewed earlier: personal rights of use mirror prin-
cipal real rights; personal rights giving rise to an execution preference
grounded in a.creditor’s detention or retention mirror accessory real rights;
personal rights of pure custody mirror the proposed category of “real rights
of administration”.
Prior to examining various hypotheses involving a custodial relation-
ship with a right to use (where a holder has a jus ad rem in the classical
sense), it is helpful to consider situations where a plaintiff has some claim
upon identifiable moveables as a type of security for an obligation (where
he is vested with a privilege or special execution priority), and situations
of purely custodial relationships (where a holder assumes a contractual ob-
ligation of care and return). The reason for adopting this modified orga-
nization is twofold: first, these two latter classes of rights seem to be uneasily
‘For the French position on this question, see B. Bouloc, “Revendication” in Encyclopedie
juridique: Repertoire de droit civil, 2d ed. (Paris: Dalloz, 1975) no. 4 [hereinafter Encyclopedie
Dalloz]; G. Lgier, “Saisie-revendication” in Encyclopedie Dalloz: Procedure civile, 2d ed.
(Paris: Dalloz, 1980) nos 11-35; P. Ortscheidt, “Prescription et possession: art. 2279-2280” in
Juris-Classeur civil (Paris: 2ditions Techniques, 1984) nos 87-89.
2In the discussion which follows the categories of personal rights discussed will be constrained
by two further limitations. First, those legal relations implying future or eventual real rights
(e.g., promises of sale) will not be considered. Secondly, it will always be assumed that the
relationship has a grounding in contract or in some other legal instrument such as a will. That
is, just as factual situations relating to real rights (e.g., the case of the usucaptor prior to
prescription) were excluded in the previous section, here also the case of factual situations
relating to personal rights (e.g., the negotiorium gestio) will be excluded.
1986]
ENFORCING RIGHTS IN MOVEABLES
situated at the boundary of personal and real rights; and secondly, there is
already some codal recognition of a right to revendicate in several of these
cases.
a. Titularies of Execution Preferences
77. Types of Privilege –
It is clear that some codal privileges, while not
giving rise to an accessory real right per se, nevertheless are not, like the
privilege for expenses of the last illness, for funeral expenses, or for servants’
wages, mere general execution priorities. 3 That is, some privileges afford to
creditors a right to gain or retain custody of identifiable assets in their
debtor’s patrimony, either to ensure expeditious realization of their claim
or to facilitate the exercise of some other right. The Civil Code lists five
such privileges. Two of these –
the claim of creditors asserting an ordinary
right of retention, and the exceptio non adimpleti contractus of unpaid sellers
(or other prior owners in contracts translative of ownership) –
are grounded
in the fact of the creditor’s current detention. The other three do not imply
a pre-existing and wrongfully interrupted detention by the privileged cred-
itor. These are the claim of the unpaid vendor who has delivered goods to
his buyer, the claim of the lessor of an immoveable upon the goods of his
lessee (or belonging to third parties) situate on the leased premises, and the
claim of a priest for tithes. Of course, to these codal privileges must also
be added the plethora of non-possessory privileges to be found in various
statutes, some of which may also constitute more than mere execution prior-
ities. 4
3See R.A. Macdonald, “Privileges and Other Preferences upon Moveable Property in Quebec:
Their Impact upon the Rights and Recourses of Execution Creditors” in M.A. Springman &
E. Gertner, eds, Debtor-Creditor Law: Practice and Doctrine (Toronto: Butterworths, 1985) 255,
for an analysis and classification of various types of privileges on moveables. See also art. 1994
C.C.L.C..
4A computer search of the statutes of Quebec revealed the following instances of the word-
stem “privil” in respect of moveables:
– Privileges on Moveables Only: Railway Act, R.S.Q. c. C-14, s. 10; Highway Code, R.S.Q.
c. C-24, s. 110; Hydro-Qu4bec Act, R.S.Q. c. H-5, s. 31(2); An Act Respecting the Ministre du
Revenu, R.S.Q. c. M-31, s. 20; Notarial Act, R.S.Q. c. N-2, s. 159; Special Corporate Powers
Act, R.S.Q. c. P-16, s. 29; Watercourses Act, R.S.Q. c. R-13, s. 42.
– Privileges on Moveables and Immoveables: An Act Respecting Industrial Accidents and
Occupational Diseases, R.S.Q. c. A-3.001, s. 324; Railway Act, R.S.Q. c. C-14, s. 10; Cities and
Towns Act, R.S.Q. c. C-19, s. 482; Municipal Code of Quebec, R.S.Q. c. C-27.1, ss 983-84;
Hydro-Qu~bec Act, R.S.Q. c. H-5, s. 31(4); Education Act, R.S.Q. c. 1-14, s. 370; An Act Re-
specting Lotteries, Racing, Publicity Contests and Amusement Machines, R.S.Q. c. L-6, s. 81;
Mining Act, R.S.Q. c. M-13, s. 105; An Act Respecting the Ministre du Revenu, R.S.Q. c. M-
31, s. 12; Transport Act, R.S.Q. c. T-12, s. 84.
McGILL LAW JOURNAL
[Vol. 32
i. Privileged Creditors with Detention
78. The Nature of Retention Claims –
In French doctrine execution priv-
ileges over moveables typically are distinguished according to whether they
are grounded in the idea of a tacit pawn, 5 or in the notion of value added
to a debtor’s patrimony. 6 While this distinction may reflect the policy origin
of most privileges, it does not highlight differences in the intensity of the
privileged creditor’s relationship with the object of his privilege. 7 Here it is
suggested that the key difference between ordinary execution priorities and
special privileges giving rise to a type of security on property resides in the
creditor’s ability to obtain custody of the object of his privilege. In other
words, the ordinary privilege is no more than a right to be paid the proceeds
of a judicial sale by preference; by contrast, the common theme of all special
execution priorities is the creditor’s right to immediate detention of a cor-
poreal moveable. In most circumstances this is translated as an existing
right of retention.
While most commentators consider the right of retention not to be a
real right,8 the right is nevertheless opposable to co-contractants, true owners
(other than the co-contractant) and third parties. Hence, it is important to
determine whether, under various hypotheses, this right will sustain an ac-
tion in revendication against persons who have wrongfully acquired deten-
tion of the object.
79. The Unpaid Seller’s Retention Claim – Analytically, the easiest case
involves the unpaid seller who has not yet delivered to his buyer. Here a
right of detention which resembles the right of retention is actually grounded
5These include the claim of innkeepers, carriers and landlords. See H.,L. & J. Mazeaud,
Leqons de droit civil, t. 3, vol. 1, 5th ed. by E Chabas (Paris: Montchrestien, 1977) nos 165-
81.
6The privilege of improvers and unpaid vendors is of this type. See M. Dagot, Les saretes
(Paris: Presses universitaires de France, 1981) at 169-217, who adds, however, a third category:
the privilege for expenses of preservation. In Quebec, there are also various public policy
privileges, all of which are simple execution priorities: see J. Deslauriers & L. Poudrier-Lebel,
Les sfiret6s: Notes de cours (Facult6 de droit, Universit6 Laval, 1979) [unpublished] at 92.
7The best discussion ofprivileges in France remains J. Bonnecase, Traiti theorique et pratique
de droit civil: Supplement, vol. 1 (Paris: Sirey, 1924) at 75-89.
8See, e.g., E Frenette, “Le droit de r6tention” in Chambre des notaires du Qu6bec, ed.,
Repertoire de droit: Sfiretes (Qu6bec: Soquij, 1979) nos 55-57; N. Catala-Franjou, “De la nature
du droit de retention” (1967) 65 R.T.D. Civ. 9, no. 6. For the past three decades Quebec courts
have taken a similar view. See Laurentide Finance Co. v. Paquette (1966), [1967] C.S. 62. But
compare the earlier cases Gagnon v. Loubier (1925), [1925] S.C.R. 334 at 337, [1925] 4 D.L.R.
289, and Lepine v. Brunei (1951), [1953] R.L. 47 at 51 (Sup. Ct).
1986]
ENFORCING RIGHTS IN MOVEABLES
in the exceptio non adimpleti contractus.9 Articles 1496-1497 C.C.L.C. pre-
suppose that the unpaid seller who transfers title retains sufficient rights in
respect of the goods remaining in his custody to assert his detention even
against a buyer to whom he has given title. 10 Moreover, this right may be
projected forward in time and includes a right of stoppage in transitu. I
Since the exceptio non adimpleti contractus protects the seller’s deten-
tion even against his buyer asserting title, it would follow that it ought also
to comprise a right of detention as against wrongfully holding third parties,
sufficient to support an action in revendication. 12 In addition, it should
permit revendication from creditors and assignees of the buyer who wrong-
fully obtain detention of possession of the goods prior to their delivery.’ 3
In other words, the seller’s right of detention functions as an analogue to
the vindicatio pignoris,14 and can only be extinguished under conditions
parallel to those where the unpaid seller’s ordinary right of revendication
is lost.’ 5 The seller who properly was asserting his right to refuse delivery
ought, therefore, to be able to revendicate on the basis of articles 1496-1497
C.C.L.C. from all wrongful holders, including the buyer and the buyer’s
assigns.
9Most authors deny that this is a true right of retention. Rather they see it as a special incident
of the law of obligations as applied to the contract of sale. See N. Catala-Franjou, ibid. But
compare Mazeaud, supra, note 5 at 105 who states: “[C]e droit de retention se confond avec
‘exception non adimpleti contractus”.
‘0 See Coco v. Lonardo (1981), [1982] R.P. 3 (Prov. Ct). Of course, where an installment
sale implies delivery the right to retain disappears. See Turcotte v. Lacombe (1975), [1975]
C.A. 305.
“See O.S. Tyndale, “Stoppage in Transitu” (1923) 1 R. du D. 117 at 121-25.
‘2 Mazeaud, supra, note 5, no. 192. Vis-d-vis third parties who wrongfully dispossess them,
the right of detention of unpaid sellers who have not delivered could only be based on a right
of retention. That is, the contractually grounded exception as against the buyer seems to trans-
late into a general right of retention as against third parties.
‘3The hypothesis here could arise where goods are seized by garnishment in the seller’s hands,
or where the buyer wrongfully has endorsed documents of title to a third party who then
successfully claims the goods from the carrier or warehouseman.The only exceptions to this
rule arise if the seller is in competition with a bank holding security under s. 178 of the Bank
Act (being part 1 of s. 2 of Banks and Banking Law Revision Act, 1980, S.C. 1980-81-82-83,
c. 40) or with the transferee of property-in-stock. In both cases, the exception arises by special
legislation. See s. 179(1) of the Bank Act, supra, and ss 4 and 27 of the Act Respecting Bills of
Lading, Receipts and Transfers of Property in Stock, R.S.Q. c. C-53 as am. Act Respecting the
Transfer of Property in Stock, S.Q. 1982, c. 55 [hereinafter Bills of Lading Act]. For the conflict
where the seller asserts stoppage in transitu and attempts to recover from a carrier or ware-
houseman in custody, see the last section of this Part.
14See Mazeaud, supra, note 5, no. 192; Dagot, supra, note 6 at 204. Both authors note that
the action is “mislabelled” as it is really an action in revendication of possession.
15See arts 1998-2000 C.C.L.C.
REVUE DE DROIT DE McGILL
[Vol. 32
80. Retention in Other Contracts Translative of Ownership -Where an owner
remains in possession after having transferred title by gift, exchange, con-
tract of enterprise or loan for consumption, it is less certain whether he may
assert the exceptio non adimpleti contractus in as complete a manner as the
unpaid seller.’ 6 While article 1597 C.C.L.C. suggests that in exchanges the
exception operates fully, 17 no article in the Code speaks to the case of the
contracts of enterprise, donation or loan for consumption.
As a practical matter, of course, this issue does not often arise in con-
tracts of enterprise. Article 1684 C.C.L.C. provides that where the workman
furnishes material, he remains owner until delivery and, therefore, he could
revendicate as such. But if the contract of enterprise actually were to in-
corporate an ordinary sale under which title passed immediately, the ex-
ceptio non adimpleti contractus could operate fully. Here the courts would
probably analogize the workman’s right to that of the unpaid seller and
would permit revendication on that basis. In the case contemplated by article
1685 C.C.L.C., where the purchaser supplies materials, the contract is not
translative of ownership.’ 8
Moreover, the case of gifts and loans is also not problematic. Normally,
one would anticipate that a donor (or a lender) who sought to impose col-
lateral obligations on the donee (or the borrower) would effect the gift (or
loan) under a suspensive condition. ‘9 Until the condition was fulfilled, there-
fore, the donor (or lender) could revendicate as owner. 20 Nevertheless, should
the gift be subject to charges, or the loan for consumption subject to giving
a deposit or some other undertaking (neither obligation being expressed as
a condition), the exception should apply as in sale, so long as the donor or
lender retained custody. It follows that the donor or lender, even though
U’See J.-L. Baudouin, Les obligations, 2d ed. (Cowansville, Que: Yvon Blais, 1983) at 338-
41. Of course, where a synallagmatic contract does not transfer ownership (e.g., deposit) the
owner would assert the contractual exceptio non adimpleti contractus against the co-contractant
and revendicate as owner against third parties in wrongful possession.
171n Hamel v. Gravener(1960), [1960] B.R. 1223, the court applied the exceptio non adimpleti
contractus to a contract of exchange.
“‘The workman in such cases, however, would be entitled to claim an ordinary right of
retention under art. 441 C.C.L.C. and could revendicate as a retention claimant. See below,
no. 81.
N’For a discussion see G. Brire, Les liberalits: Donations, testaments, substitutions etfiducie,
8th ed. (Ottawa: tditions de l’Universit6 d’Ottawa, 1982) nos 76-87a.
2 Given the purpose of a loan for consumption (and the nature of the objects usually lent)
the idea of asserting the exceptio non adimpleti contractus as a basis for revendication after
custody has been lost is somewhat far-fetched, even if technically possible.
1986]
ENFORCING RIGHTS IN MOVEABLES
longer owner, should be able to revendicate the object from a non-perform-
ing co-contractant who wrongfully gained possession, as well as from wrong-
fully holding third parties.21
81. The Right of Retention Stricto Sensu – A legally similar re’sult to that
contemplated by articles 1496-1497 C.C.L.C. arises in all cases where a
creditor has an ordinary right of retention.2 2 As long as the conditions giving
rise to the right of retention are met, the creditor of the obligation acquires
the right to custody by operation of law.23 Since the essence of the right of
retention is the custody of the creditor, any voluntary surrender of posses-
sion to the debtor extinguishes the right.24 The right is not lost, however,
if the surrender to the debtor is only temporary, with a clause requiring the
object’s return; 25 or if it is occasioned by fraud or theft.26 On the other hand,
the Consumer Protection Act limits the right of retention which may be
claimed by repairmen of automobiles, motorcycles and domestic appliances.
Wherever a contract of repair does not meet the formal requirements of the
Act, the repairer is deprived of his right to retain even if he has never
surrendered physical control to his co-contractant.27
What, then, is the recourse by which a wrongfully dispossessed retention
claimant may enforce his right to physical control of the object of his right?
Drawing on the notion of tacit pawn, it would seem that any retention
21See, generally, R. Cassin, De l’exception dans les rapports synallagmatiques (exception non
adimpleti contractus) et deses relations avec le droitl de rtention, la compensation et la rsolution
(Paris: Sirey, 1914) at 1-139, who suggests this conclusion in discussing the justification for the
exception.
22See N. Catala-Franjou, supra, note 8, for a typology of rights of retention. Classical examples
are art. 1679 C.C.L.C. (carriers); art. 1816a C.C.L.C. (innkeepers); art. 441 C.C.L.C. (im-
provers); art. 1713 C.C.L.C. (mandataries); arts 1736 and 1753 C.C.L.C. (commission-mer-
chants); art. 1812 C.C.L.C. (depositaries); art. 958 C.C.L.C. (institutes); art. 1770 C.C.L.C.
(borrowers); art. 1973 C.C.L.C. (pledgees); art. 1546 C.C.L.C. (buyers whose rights are redeemed
by the seller); and art. 2268(4) C.C.L.C. (good faith acquirers).
23Mazeaud, supra, note 5, nos 110 and 119-23; Frenette, supra, note 8, nos 5-6.
24Senecal v. Mayrand (1932), 70 C.S. 505; Therrien v. Royal Bank of Canada (1941), 79 C.S.
366.25Dumoulin v. Giard (1950), [1951] R.L. 172 (C.S.); General Motors Acceptance Corp. v.
Quebec Drive Yourself Reg”d (1942), [1942] C.S. 59; Grobstein v. A. Hollander and Son (1962),
[1963] B.R. 440.
26See Kuehne and Nagel (Canada) Ltd v. Polygraph-Export G.M.B.H. (1962), [1963] C.S.
679, where the surrender followed the tender of an N.S.E cheque. See also Wilson v. Doyon
(1963), [1964] C.S. 93. While this result is doubtful as a matter of negotiable instruments law,
the principle announced in the case is uncontroverted. See Mazeaud, supra, note 5, nos 122-
23; Dagot supra, note 6 at 100; Frenette, supra, note 8, no. 33.
27R.S.Q. c. P-40.1, ss 179 and 187 [hereinafter C.PA.]. These sections imply that the right
may nevertheless be asserted against third parties who demand possession, including the true
owner. See GeneralMotorsAcceptance Corp. v. Boucher(1979), [1979] C.A. 250 for an analogous
result as concerns a conditional seller’s right to revendicate from third parties.
McGILL LAW JOURNAL
[Vol. 32
creditor may not only reclaim possession from his debtor who has defrauded
him, 28 but may also revendicate against all third parties who have wrongful
detention2 9 or possession 30 of the goods subject to his right. As in the case
of the unpaid vendor exercising the exceptio non adimpleti contractus, the
plaintiff is revendicating neither ownership, nor a lesser real right, nor even
possession of the object; he is simply revendicating its detention. 3′ The
special favour the law accords the retainor vis-d-vis his co-contractant may
thus be projected into a more general recourse against third parties wrong-
fully in possession. 32
ii. Privileged Creditors Not Having Detention
In the French Code Napoleon there are
82. Quasi-Retention Type Claims –
two major anomalies to the theory of revendication of moveables not pre-
viously in the possession or custody of the plaintiff. These are, first, the
right of revendication of the unpaid vendor who has delivered goods to his
buyer, and secondly, the right of his lessor of an immoveable to revendicate
the objects subject to the lessors’s privilege. 33 In both cases the plaintiff has
neither a real right in the goods, nor even an immediate right to their
detention founded on contract. 34 Yet, in France, both unpaid vendor and
lessor are expressly permitted by the Code Napol6on to revendicate from
their co-contractants, and in certain cases, from third parties. 35
28Standard Credit Corp. v. Nadeau (1955), [1956] R.L. 127 (Sup. Ct); see also, by analogy,
Wilson v. Doyon, supra, note 26.
29Bensol Customs Brokers Ltd v. Asiatic Company (U.S.A.) (1981), [1982] C.E 145.
3Mazeaud, supra, note 5, no. 129; Dagot, supra, note 6 at 95 and 97-99.
31Under no conditions does the retainor acquire a right to use the object. Unlike the pledgee,
the retainor cannot stipulate a pacte commissoire. Art. 734(4) C.C.P contains a procedural
expression of the retainor’s right to seize before judgment, but it is impficit that the seizing
creditor is only claiming detention and not a right to use. See Wither Evans Ltd v. Radio
Charly (13 March 1984), Montreal 500-09-001703-826 (C.A.).
321t is precisely this issue which is at the centre of controversy respecting the legal nature of
the right of retention. For e.g., see R. Savatier, Cours de droit civil, t. 2, 2d ed. (Paris: L.G.D.J.,
1949) at 190: “Faute de permettre au r~tenteur de revendiquer l’objet dont il est d~pouille, le
droit de retention n’est pas un droit rtgP’ [emphasis added]. Since in Quebec this right to
revendicate is permitted in the cases noted, there may be better reason now to consider the
right of retention as a real right. That is, in Quebec, the right of retention has several elements
of reality still absent in France. See Mazeaud, supra, note 5, no. 129 and compare Frenette,
supra, note 8, nos 53-57.
33See Ikgier, supra, note 1, nos 11-26 and 31-33; Dagot, supra, note 6 at 169-186 and 198-
34The cases previously considered are anomalous to the extent that a plaintiff with a jus ad
rein could revendicate, but at least in each case the plaintiff had an immediate and existing
right to custody. That is, in the exceptio non adimpleti contractus and retention situations, the
revendicating party would never have voluntarily surrendered custody.
206.
35Arts 2102(4) and 2102(1) C.N.
19861
ENFORCING RIGHTS IN MOVEABLES
In Quebec, the general theory under which creditors with detention
may revendicate has three possible anomalies. First, there are two separate
categories of unpaid vendor who may revendicate moveable property: or-
dinary unpaid vendors under articles 1998-2000 C.C.L.C., and suppliers of
construction materials under article 2013e(6) C.C.L.C. Second, there is the
right of landlord to insist that his lessee furnish the rental property: under
article 1640 C.C.L.C. the landlord may seize goods for up to fifteen days
following their removal from the leased premises. Finally, there is the right
of the priest to claim a privilege on the crops of his penitent: this privilege
seems to give rise both to a personal action generating an execution priority
and to a real action directed to the recovery of the crops themselves.
83. Theory of the Unpaid Vendor’s Claim – The unpaid vendor who re-
vendicates from a buyer to whom he has transferred both title and possession
is claiming neither as owner, nor by virtue of a right to detention of which
he has been wrongfully deprived. The legal foundation of the unpaid seller’s
right to revendicate would seem to be an extension of his right not to deliver
goods until he receives payment. 36 That is, if a seller has delivered the goods
to his debtor and remains unpaid, articles 1998-2000 C.C.L.C. (as well as
paragraph 2013e(6) C. C.L. C.) provide him with a right to reclaim possession
of the property in order then to exercise either his right of detention non
adimpleti contractus, or to prevent the debtor from selling the property so
as to defeat the vendor’s right to seek dissolution of the sale under article
1543 C.C.L.C.37 The explanation for the maintenance of this extraordinary
right seems to be that under precodification French law, title did not pass
to a buyer, notwithstanding delivery, until full payment. 38
84. Conditions for Revendication – The right of ordinary unpaid sellers to
revendicate, that is, to claim a right to reacquire detention, is limited by
four conditions established in article 1999 C.C.L.C.39 First, the sale must
not have been on credit;40 second, the thing must still be entire and in the
36See Mazeaud, supra, note 5, no. 192; Dagot, supra, note 6 at 204.
37E. Schreuder, “La protection juridique du vendeur non paye d’effets mobiliers” (1979) 24
Ann. Fac. Dr. Liege 13 at 25.
(Paris: L.G.D.J., 1953) no. 188; Mazeaud, supra, note 5, no. 192.
38M. Planiol & G. Ripert, Traite pratique de droit civilfranqais, t. 12, 2d ed. by E. Becque
39See, for a general analysis, M. Pourcelet, La vente, 4th ed. (Montreal: Themis, 1980) at
168-69; K. Atlas, “The Vendor of Moveables in Quebec: His Protection and Privileges” (1982)
42 R. du B. 597; T. Rousseau-Houle, “Les r~cents d~veloppements dans le droit de la vente
et du louage de choses au Quebec” (1985) 15 R.D.U.S. 307 at 377-81.
40Thus, if a term is given for payment, the right to revendicate is lost. See Debro Inc. v. Pagb
Ltte (19 March 1982), Quebec 200-05-002158-801 (Sup. Ct). In Fiducie du Qubec v. Fabri-
cation Prcision Inc. (1978), [1978] C.A. 255 a sale “net 30 days” was held to be a sale on
credit, although now it would seem that courts will accept “net cash discount for payment
within 30 days” as cash sales.
REVUE DE DR OIT DE McGILL
[Vol. 32
same condition;4′ third, the goods must not have passed into the hands of
a third party who has paid for them; 42 and fourth, the right must be exercised
within eight days of the delivery, except in the case of insolvent traders
where the delay is extended by article 1998 C.C.L.C. to 30 days.43 If these
conditions are met an unpaid seller may revendicate notwithstanding that
he has voluntarily surrendered the object to his buyer.
The second case where an unpaid vendor may revendicate goods sold
and delivered arises in construction contracts. Under article 2013e(6)
C.C.L.C. the supplier of materials may revendicate materials not yet in-
corporated into a building if the buyer be insolvent or fail to make payments
when due. Moreover, this right does not appear to be limited by any of the
restrictions set out in article 1999 C.CL.C.44 It follows that this special
“construction” revendication, in addition to being the projection forward
41This implies that eitherjuridical or material transformation ends the right. Immobilization
by nature, although not immobilization by destination, constitutes juridical transformation.
Similarly, once goods are manufactured, they are not in the same condition: see Mercure v.
Philippe Beaubien et Cie (1965), [1966] B.R. 413. However, revendication was allowed in one
case even after timber had been sawn: see Roy v. Bois Ste. Lucie Inc. (1977), [1977] C.S. 845.
42As a consequence, the goods cannot be revendicated either from a third party who has
paid the price and taken delivery or from a pledgee who has advanced funds and taken delivery:
Mazeaud, supra, note 5, no. 194. Nevertheless, revendication can take place against donees
(even if they have taken delivery), purchasers who have taken delivery but not yet paid the
price, and purchasers who have paid but not taken delivery. See Liakao and Son Fur v.
Rothman (1964), [1965] R.P. 275 (Sup. Ct). In these situations it is immaterial whether the
subsequent sale is cash or with a term. Finally, the seller may revendicate against all precarious
holders (i.e., lessees, depositaries, borrowers), since the buyer still retains legal possession of
the goods he has purchased. The right of the seller to revendicate from a bank holding security
pursuant to s. 178 of the Bank Act, supra, note 13, or from a transferee of property-in-stock,
is refused by these special statutes, except where the bank or transferee knew of the claim prior
to taking security. See ss 179(1) and 27(1) of the Bank Act, supra. In cases of prior knowledge,
even though the bank or transferee is in a position analogous to a pledgee who has advanced
funds and taken delivery, the seller’s right to revendicate subsists. For a suggestion (in the case
of no prior knowledge) that only the right to revendicate, but not the privilege, is lost in such
cases, see Menard v. Latulippe, Renaud, Bourane Lte (1986), [1986] R.J.Q. 657 at 660-61
(Sup. Ct). See also M. Patenaude, “L’origine de la primaut6 du privilege d’une banque sur les
(1981) 22 C. de D. 667. In all such situations, however, it is
droits d’un vendeur impay”
special legislation, rather than the Civil Code, which subordinates the unpaid vendor’s rights.
4.’Keyinar Equipment Ltd v. Thomcor Holdings Ltd (1983), [1983] C.S. 326.
44Miron v. Denis (1948), [1948] C.S. 480; J. Auger, “Le privilage ouvrier ses bfnfficiaires,
son objet, ses formalitfs” (1975) C.P. du N. 65 at 72. The reasons for the less restrictive
conditions are several. First, under art. 1998 C.C.L.C. the goods sold are to be used as moveables
subject to their possible transformation or incorporation into another moveable; under art.
–
2013e(6) C.C.L.C., the goods are sold for the purpose of transformation or incorporation into
an immoveable. Hence, the requirement that the materials be “entire and in the same con-
dition” is impractical. Secondly, under art. 1998 C.C.L.C., the goods are either consumer goods
or goods for resale where a change of title implies a change ofsitus, under art. 2013e(6) C.C.L.C.,
it is apparent, no matter who actually is owner (often a difficult determination in construction
contracts), where the goods will wind up: hence, the arts 1488 and 2268 C.C.L.C. issue is not
problematic.
1986]
ENFORCING RIGHTS IN MOVEABLES
in time of a right of detention grounded in the exceptio non adimpleti
contractus, is also a right in anticipation of a construction privilege over an
immoveable.4 5
In both these cases the seller is entitled to revendicate not only from
his buyer (and, subject to article 1998(3) C.C.L.C., from third parties who
have contracted with his buyer), but also as against third parties wrongfully
in possession of the goods (for example, a thief or a finder).46 That is, as
long as revendication against his buyer is possible, in principle the seller
retains a sufficient claim upon the goods to recover custody from any person
who may have detention or possession.47
85. The Lessor of Immoveables –
In France, because the lessor’s privilege
over the lessee’s moveables is founded on the idea of tacit pawn, the lessor
is given not only a right of attachment in revendication, 48 but also a right
to revendicate both against his lessee and against wrongfully holding third
parties. 49 As in the case of the unpaid seller, however, the lessor is reven-
dicating custody, and not ownership. Moreover, his rights are subject to
severe restrictions.50
In Quebec, the landlord’s privilege is somewhat different.5′ It is clear
that the landlord may seize the propefty subject to his privilege before
judgment, but this right is not an attachment in revendication. Rather, it
is founded in article 734(2) C.C.P. which establishes a separate category of
conservatory attachment (or seizure before judgment) for landlords. In other
words, even though the landlord’s privilege in Quebec also seems to rest
on the idea of a tacit pawn, and even though it also affects identifiable
property,5 2 it does not appear to give rise to a direct right of physical custody
as in France.
45As such, it is the only codal privilege which survives the legal transformation of its object.
46While all agree that revendication remains possible against lessees, borrowers, depositaries
and repairers who have contracted with the buyer (subject, of course, to liquidating any re-
tention claim) and against purchasers and pledgees (subject to art. 1998(3) C.C.L.C.), some
claim that a finder acquires a new title analogous to a good faith purchaser. The conclusion
is suspect. See below, nos 112 and 126.
470f course, this revendication is in addition to the seller’s right to claim an execution priority
or to be subrogated for his privilege even beyond the cases set out in the Code, if the price is
still due. See Re Mechanic Supply Co. (1933), 71 C.S. 400.
48Ulgier, supra, note 1, nos 11-26.
49Bouloc, supra, note 1, no. 178; Dagot, supra, note 6 at 184-86.
50 Mazeaud, supra, note 5, no. 175.
SiSee Rousseau-Houle, supra, note 39 at 401-08. One major difference is that the landlord’s
52See, for an analysis of the property subject to the privilege, Rousseau-Houle, supra, note
39 at 402-05, and Congr~gation du Trs Saint-Rgdempteur v. Rooney (12 January 1979), Mon-
treal 500-05-013525-777 (Sup. Ct); Franchise Plus Inc v. D~panneurBitton & Fils (1984), [1984]
C.S. 394; Weinberger v. Singh (1977), [1977] C.P. 416.
privilege cannot be claimed in respect of residential premises. See art. 1650.4 C.C.L.C.
McGILL LAW JOURNAL
[Vol. 32
The landlord’s right to compel the lessee to leave the goods on his
premises or to “garnir les lieux”, 53 his right under article 1640 C.C.L.C. to
assert an execution priority on property seized within fifteen days following
its removal, 54 and his right to seize the property of third parties,55 have led
some courts to conclude that the privilege constitutes a real right in the
lessee’s property. 56 But this conclusion is suspect. To begin with, the lessee
may unilaterally extinguish the landlord’s right through sale of the property
or through its simple removal from the leased premises. Moreover, third
parties may also extinguish the privilege either by removing the goods or
by notiflying the landlord of their rights.5 7 A right which may be lost by
any mutation of title or by physical displacement can hardly qualify as a
jus in re.
It follows that the landlord has no right to compel the lessee to leave
specific goods on the premises, or to compel their return for fifteen days
following their removal. He may simply claim an execution priority over
specified assets when he seizes them while they are on the rental property
or within fifteen days of their removal,58 or when they are seized by another
creditor during that time.59 Far from having a real right in the lessee’s goods,
the landlord does not even have a right to their detention analogous to that
of the unpaid seller. Consequently, even though he may claim a priority on
goods seized (6ven in the hands of third parties) for up to fifteen days, he
5-“See Archambault v. Lemay (1951), [1952] C.S. 65; Chaput v. Pichette (1965), [1966] C.S.
520. It is this obligation to garnir which explains why third party property is subject to the
privilege. The landlord would assume that the goods on the premises will satisfy his claim and
that they belong to the lessee.
54Should a third party wrongfully make off with the goods, the lessor may cause these to be
seized in execution, or seized before judgment within fifteen days of their removal, provided
the lessee is in default under the lease in his monetary obligations.
“5This may be property of sub-lessees: see art. 1638 C.C.L.C. and Prize Realty Corp. v.
Friedman (1971), [1972] C.A. 286. It may also be property of co-contractants of the lessee,
such as suppliers: see art. 1639 C.C.L.C. and Beraznik v. Equipment Finance Corp. (20 De-
cember 1978), Montreal 500-09-000904-711 (C.A.).
56Re decorations Pierre Langlois Inc. v. Dallaire (1983), [1983] C.A. 482 is the most recent
decision. See also L.C. Carroll, ed., Snow’s Landlord and Tenant, 3d ed. (Montreal: Southam,
1934).
57Murray Waxinan Realty Inc. v. Djihanian (1983), [1983] C.A. 274. The privilege is also
lost if the landlord otherwise becomes owner of the third party’s rights: Rothenberg v. Frey
(1978), [1978] C.P. 380.
51Municipal Mortgage Corp. v. Bedard (1965), [1966] C.S. 160; but see Re Decorations Pierre
Langlois v. Dallaire, supra, note 56, where the Court of Appeal seemed to characterize a third
party owner’s exposure propter rein as giving the lessor a real right which could be claimed in
the third party’s bankruptcy. See also Pare v. Warwick Pants Manufacturing Co. (1914), 47
C.S. 60.
Aetna Factors Corp. v. Brouillard (1976), [1976] C.P. 405.
1986]
ENFORCING RIGHTS IN MOVEABLES
cannot revendicate them from his debtor or from wrongfully holding third
parties in order to have them “garnir les lieux.”’60
86. The Privilege for Tithes -The privilege for tithes is a codal anachronism,
both in its existence and in its object. This privilege constitutes a claim for
payment in kind of one twenty-sixth of the harvest of Roman Catholic
farmers.61 To enforce the privilege the priest has a mixed real and personal
action. He may revendicate his share of the crop from his penitent, or may
seize the crop and claim one twenty-sixth of its price at a judicial sale.62
But if the crop is sold otherwise than in justice the privilege is lost.63
The exact nature of the privilege is, therefore, uncertain. On the one
hand, it is an execution priority; on the other hand, it permits the creditor
to claim possession of its object. That is, the privilege seems to amount to
an expropriation under which the priest can become owner of a fraction of
his penitent’s crop. Like the unpaid seller’s privilege, it may ultimately give
rise not only to possession, but also, if the priest so chooses, to title to a
portion of the crop. Presumeably, once his claim is liquid and due, the priest
could revendicate his share from his penitent, his penitent’s non-title co-
contractants (such as depositaries, carriers), and from third parties wrong-
fully in custody of it.64
iii. Other Privileged Creditors
87. Codal Privileges Constituting Simple Execution Preferences – Several
other privileges are set out by the Civil Code and Code of Civil Procedure.
Yet none of these, including the preference of the seizing creditor under
article 616 C.C.P, can be characterized as an accessory real right. Neither
do they confer even a semblance of a right to follow. Nor do they give their
titulary a right to claim detention or possession of specific corporeal objects.
As mere execution preferences, they may be asserted only as a right to be
601n any event, it is unclear in such a case what right is being revendicated. See Lallemand
v. Larue (1908), 39 C.S. 218, 10 Q.PR. 118 where the Court of Revision assumed, in a similar
case, that the landlord could only claim damages. See also Dagot, supra. note 6 at 184. on the
question of what right is being revendicated.
61P.-B. Mignault, Droit Paroissial (Montreal: C.O. Beauchemin & Fils. 1893) at 164-76.
62Roy v. Bergeron (1867), 21 R.J.R.Q. 62, 2 R.L. 532 (Sup. Ct).
6 3See Gaudin v. Ethier (1884), 1 M.L.R. 37, 15 R.L. 345 (Q.B.). A judicial sale provoked
either by the priest or a third party gives the priest a second-ranking privilege in the proceeds.
See art. 1994 C.C.L.C.
64See, by analogy, Filiatrault v. Archainbault (1859), 4 L.C.J. 10, 8 R.J.R.Q. 62 (Sup. Ct).
See also Curs et marguillers de I’oeuvre et fabrique de la paroisse de St. Zacharie v. Morin
(1968), [1968] C.S. 615 (Prov. Ct), for a discussion of the privilege for tithes.
REVUE DE DROIT DE McGILL
[Vol. 32
paid by priority from the proceeds of a judicial sale.65 In other words, an
ordinary Civil Code privileged creditor may protect his rights as against
wrongfully holding third parties only through the oblique or Paulian actions,
through the seizure by garnishment, or through the conservatory attachment
which is open to all creditors under the conditions of article 734(4) C.C.P
In no case does a creditor who can claim a privilege giving rise only to a
simple execution priority acquire rights in, or in respect of, corporeal prop-
erty. In no case, therefore, may he bring an action in revendication.
88. Statutory Privileges – Of the various privileges over moveables set out
in the Revised Statutes of Quebec, very few give more than an execution
priority over the assets of a debtor.66 Only six deserve any consideration
here. Two are genuine security devices: the privileges under the Special
Corporate Powers Act and under the Railways Act. The latter privilege is,
in fact, simply analogized to the former. While some writers still consider
that the trustee for debenture holders acquires no real right in the property
of the debtor, in view of the analysis undertaken earlier it is assumed here
that indeed he does assert a real right, and may revendicate on that basis. 67
Two other statutory privileges, while bearing several earmarks of a spe-
cial privilege, really are ordinary execution priorities. Under the Notarial
Act, the Chamber may exercise a right of preemption over certain sums to
be remitted to a notary’s heirs.68 But this “privilege” gives no right in specific
corporeal moveables and constitutes a mere direction to the legal depositary
of the deceased notary’s minute-book to remit a fraction of fees paid to the
Chamber for debts owing to them. Under the Mining Act, the government
has a privilege on moveables belonging to the concessionaire of a mining
lease which are situate on the leased property. This privilege is analogized
to a landlord’s privilege. 69 Hence, for the reasons given in respect of the
ordinary landlord’s privilege, this privilege does not give rise to a right of
revendication.
The privileges set out in the Ministry ofRevenueAct and Hydro-Quebec
Act are, however, more problematic. The deemed trust of section 20 of the
65Normally, the privilege may be claimed only on the debtor’s property, but if third party
effects are seized and sold without opposition, the privilege also applies to the same degree
that it would over the debtor’s property. See art. 569 C.C.R
66Thus the privileges on moveables under the Highway Code and the Watercourses Act,
supra, note 4, and the mixed privileges under the An Act Respecting Industrial Accidents and
Occupational Diseases, the Municipal Code of Quebec, the Hydro-Quebec Act, the Education
Act, supra, note 4, and the Lotteries and Races Act, R.S.Q. c. L.-5, are only execution priorities,
usually ranking with, or just after, law costs.
67See above, no. 67.
68NotarialAct, supra, note 4, s. 159.
69Mining Act, supra, note 4, s. 105.
19861
ENFORCING RIGHTS IN MOVEABLES
former Act would seem to give the Ministry a real right in sums collected
or to have been collected. Hence, should specific corporeal sums (that is,
cheques, banknotes, bonds, or notes), be wrongfully in the hands of the
debtor, his liquidator or his trustee in bankruptcy, or of third parties, they
can be revendicated. On the other hand, the privilege and legal hypothec
of section 12, for the reasons given earlier,70 cannot be considered as giving
rise to an accessory real right. As a mere execution priority this privilege
and hypothec gives the Ministry no right to revendicate the taxpayer’s cor-
poreal property.7′
The privileges of Hydro-Quebec are also anomalous. Subsection 31(4)
of the Hydro-Quebec Act gives the Corporation a first-ranking execution
priority for unpaid accounts. Like the privilege under section 12 of the
Ministry of Revenue Act, this is a simple priority for payment which does
not give rise to a right of revendication. By contrast, under subsection 31(2)
the Corporation may exercise an unpaid vendor’s privilege for any material
or equipment sold to its customers. This is an ordinary vendor’s privilege,
except that none of the restrictive conditions of articles 1998-2000 C.C.L.C..
apply so as to limit revendication. 72 Here the Corporation has a true right
of revendication.
In view of the conceptual structure of the Civil Code, it is difficult to
conceive of statutory privileges which are not either accessory real rights or
mere execution priorities. As demonstrated earlier, in the former case, re-
vendication is possible; in the latter case, it is not. Nevertheless, at least
two statutory privileges are analogized to special codal privileges. They lead,
however, to opposite results. The MiningAct analogy to the lessors privilege
gives no right to revendicate; the Hydro-Quebec Act analogy to the unpaid
vendor’s privilege consecrates such a right.
89. Ordinary Execution Creditors and the Seizing Creditor – By way of
conclusion to this assessment of the right of various privileged creditors to
revendicate, it is useful to consider the status of ordinary execution creditors.
Articles 1980-1981 C.C.L.C. provide that the assets of a debtor are the
common pledge of his creditors. Nevertheless, a creditor takes a debtor as
he is, and suffers the vacillations of the economic value of his patrimony,
whatever their cause. In other words, unlike titularies of accessory real rights
or special privileges, a chirographic creditor has no claim on specific assets
7 0See above, no. 67.
71See L. Payette, “Charge flottante: Privilege de la Couronne et saisie entre les mains du
fiduciaire” (1980) 40 R. du B. 337; see also Banquefederale de dveloppement v. D.D. Transport
Lte (1984), [1984] C.S. 1127.
72Notably, the 30 day limit, the credit sale restriction and the resale limit do not apply. In
this sense, the right of revendication flowing from the privilege of Hydro-Quebec resembles
that of the supplier under art. 2013e(6) C.C.L.C.
McGILL LAW JOURNAL
[Vol. 32
of his debtor. His position is thus like that of the titulary of an ordinary
execution preference. Where a debtor disposes of his corporeal moveables
or neglects to maximize his corporeal assets a chirographic creditor has, in
principle, no means to protect his rights. 73 There are, however, two main
exceptions to this principle: prior to execution, the creditor may bring the
Paulian and the oblique actions; and, at the time of execution the creditor
may seize by garnishment property of his debtor in the hands of third parties.
The oblique action permits a creditor to enforce a debtor’s rights where
he is prejudiced by his debtor’s failure to do so. 74 All manner of claim may
be enforced obliquely, including that in revendication. 75 The Paulian action
permits creditors to set aside fraudulent acts of their debtors. 76 Thus, if a
debtor fraudulently alienates a corporeal moveable, it may be reclaimed
from the debtor’s co-contractant. 77 In neither case, however, is the chiro-
graphic creditor revendicating either a property right or possession in his
own name. In the oblique action, the plaintiff essentially “represents” his
negligent debtor, and the result of the action is to obtain the object’s return
to the debtor’s patrimony. In a Paulian claim, while the plaintiff is seeking
the nullity of a contract by direct action, the result of the action again is
simply to make the object available for judicial sale to the plaintiff’s profit.
Neither the oblique nor the Paulian actions vest ordinary creditors with a
right in their debtor’s corporeal property sufficient to ground an independent
right of revendication. Their sole function is to augment a debtor’s patri-
mony available for seizure in execution.
This leads to a final consideration. Does the execution creditor who
has already seized goods (either in his debtor’s hands or by garnishment)
have a right to revendicate property which the guardian has either failed to
recover from a third party or has fraudulently alienated? That is, even
though the creditor has no direct right in relation to the goods and has no
contractual relation with the guardian, may he nevertheless claim them from
third parties? On at least one occasion the court has permitted a seizing
7″See Macdonald, supra, note 3 at 267-74.
74Art. 1031 C.C.L.C.; see Harris v. Royal Victoria Hospital (1947), [1948] B.R. 28. There
are several other examples of the oblique action in the Civil Code. See arts 480, 655, 1040b
C.C.L.C. and art. 502 C.C.Q.
73G. Trudel, Trait6 de droit civil du Quebec, t. 7 (Montreal: Wilson & Lafleur, 1946) at 427-
28. See, e.g., Bouchard v. Lajoie (1886), 2 M.L.R. 450, 10 L.N. 109 (Q.B.). The creditor, in the
cases here under consideration, could accomplish the same result through a seizure by gar-
nishment. See arts 625-640 C.C.P
76Arts 1032-1040 C.C.L.C. See also arts 470, 502, 523 C.C.Q., and arts 484, 655, 745, 803
and 2023 C.C.L.C. for other examples of Paulian recourses.
77See art. 1036 C.C.L.C. and Millette v. Lizotte (1940), 79 C.S. 218. The Paulian defendant
may, however, elect to pay the value of the object to the plaintiff-creditor. See Re Normandin
(1958), [1959] B.R. 14.
19861
ENFORCING RIGHTS IN MOVEABLES
creditor to revendicate property under seizure from a third party, although
the legal foundation for this right was not discussed. 78 Regardless of the
rationale for revendication, however, it is again clear that the action has no
purpose other than to expose the goods revendicated to judicial sale.
90. Scope of Revendication of Titularies of Execution Preferences – Even
though the Code Napoleon recognized from its origins the special rights of
sellers and landlords to revendicate possession, no general theory of reven-
dication as a complement to security devices which do not have a character
of reality has yet emerged in France.79 A similar situation exists in Quebec.
Nevertheless, the above analysis suggests some general conclusions.
It appears that the Civil Code’s characterization of a creditor’s right as
being privileged has, in itself, no bearing on the question of revendication.
The key, rather, seems to reside in whether the privileged creditor has a
right to custody. In the first place, privileged creditors who have an existing
and actual right of detention in their debtor’s property may revendicate
both from their debtor and from third parties who wrongfully hold corporeal
property subject to the privilege. Second, unpaid sellers and priests, neither
of whom has either a real right or actual detention, may revendicate pos-
session either to bring the object to sale or to facilitate a later claim of
ownership. Third, while the landlord may assert a special privilege, he has
no right to revendicate in his own name. Because he cannot assert either a
pre-existing detention or a future claim of a real right, his right to claim an
execution preference even over goods no longer on the premises does not
carry with it a right to compel their return through revendication. Fourth,
a privilege sustaining a mere execution priority is insufficient to vest its
titulary with a right to revendicate the property over which it lies.
A statutory privilege not giving rise to a real right (or not analogized
to a privilege in the Code which gives rise to revendication) will not found
a right of revendication. Here the statute book simply defers to the taxonomy
of rights elaborated by the Civil Code. Moreover, the exceptional right of
chirographic creditors to deploy the oblique and Paulian actions to reven-
dicate corporeal moveables is no exception to this principle: in neither case
is the creditor revendicating to his own detention. Like the landlord, the
chirographic creditor is merely facilitating a future seizure in execution of
his debtor’s property. Finally, it would appear that a seizing creditor has a
right to revendicate objects under seizure which have been negligently or
fraudulently disposed of. Here one finds the principles of the Paulian and
78Franey v. Costello (1882), 12 R.L. 300 (Circ. Ct). Presumably the court would be drawing
79See Iogier, supra, note 1, no. 34.
analogies to either the oblique or the Paulian actions.
REVUE DE DROIT DE McGILL
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oblique actions extended even to the legal (as opposed to contractual) re-
lationship of the seizing creditor/guardian.
It follows from this analysis that creditors not vested with an accessory
real right may revendicate in two main cases: if they have an execution
preference flowing from an existing or future right to possession or detention
in their own name, and if they are exercising a right of their debtor in order
to facilitate a judicial sale. Therefore, it would seem that the action in
revendication has, at least in the former case, acquired non-petitory
characteristics. 80
b. Titularies of a Personal Right Implying a Custodial Obligation
91. The Obligation of Care andReturn – The civil law knows several types
of legal relationship under which one party assumes an obligation of care
and return of an object belonging to another. In modem parlance these may
be grouped under a more general rubric: administration of the property of
another.81 Some of these relationships imply that the holder is the titulary
of a real right. Thus, usufructuaries, users and pledgees must care for prop-
erty entrusted to them and return it at the expiration of the contract. 82 Again,
titularies of eventual and future real rights, who are in possession of the
object of their eventual and future right, are usually held to such an obli-
gation. For example, promisees of sale with detention, conditional buyers
with detention, and heirs in provisional possession are exposed to a con-
tingent liability of care and return. More such obligations are grounded in
contractual relations which give rise to only a personal right between co-
contractants (that is, where the individual with physical control has at best
a jus ad rem in connection with the object). The deposit is the model of
such a contract, although lease, loan and the special mandate are other
examples. Finally, some relationships giving rise to an obligation of care
and return have no direct contractual basis. These include situations arising
by deed, as in the case of testamentary trustees or testamentary executors,
or by judgment, as in the case of judicial sequestrators, guardians of seized
property, tutors and curators, or even as a purely factual matter, as in a
80For a discussion of similar developments in France, see G. Goubeaux, “L2extension de la
protection possessoire au profit des d~tenteurs” (1976) Rep. Not. Defrnois 374. See also R.
Saleilles, De la possession des meubles: 6tudes de droit allemand et franiais (doctoral thesis
in law, Universit6 de Paris, 1907) at 275ff.
81See Quebec, Civil Code Revision Office, Report on the Quebec Civil Code: Commentaries,
vol. 2 (Qu6bec: Editeur officiel, 1978) at 372-75 and 505-25 [hereinafter Commentaries].
82For usufruct and use, see M. Cantin Cumyn, De l’usufruit, de l’usage et de l’habitation
(Quebec: Soquij, 1985) nos 103-27. For pledge see arts 1972-1973 C.C.L.C. and R.A. Mac-
donald, “Exploiting the Pledge as a Security Device” (1985) 15 R.D.U.S. 551 at 602-14.
1986]
ENFORCING RIGHTS IN MOVEABLES
negotiorum gestio or in the case of a creditor who discovers he has seized
property not belonging to his debtor.
This section examines only those legal relationships involving an ob-
ligation of care and return, when they are not founded on a real right, an
eventual real right, a personal right of use, or a simple relationship of fact.
Thus, the analysis here focuses on the obligation of care and return when
it constitutes the principal feature of the legal relationship between the par-
ties. To clarify the extent of the obligation in particular cases and to explore
the possibilities for revendication which each presents, it is helpful to dis-
tinguish between three qualitatively different types of administration of the
property of another.8 3 Firstly, there are holders who may not use the object
which they must care for and return. Secondly, there are those who, by the
nature of the contract or juridical situation, may use the object for purposes
other than their own benefit. Finally, there are holders who have an obli-
gation of care and return and who, in most situations, simply represent the
owner.
i. Those Who May Not Use an Object
92. Detention and Possession – The category of holders who may not use
a corporeal moveable in their physical custody (that is, who have only pure
detention) comprises depositaries, carriers and innkeepers, as well as guard-
ians of seized property, unpaid sellers in possession of an object sold to a
buyer who has not yet taken delivery, and good faith purchasers under
paragraph 2268(4) C. C.L. C. These holders must be distinguished from ju-
dicial sequestrators, trustees, testamentary executors, mandataries, and sev-
eral retention claimants such as repairmen or defendants to an action brought
under paragraph 2268(4) C.C.L.C., each of whom retains custody of an
object, partly so as to use it for the benefit of the person to whom it must
be returned (and thus, each of whom would appear to have at least the
rudiments of possession).
93. Depositaries – The archetype of a holder with pure detention is the
depositary. 84 Even though the depositary has no real right in the object
deposited, under articles 1802-1804 C.C.L.C. he must preserve and return
it to the depositor. From this duty Mignault 85 derives, following French
83This follows the typology of the Commentaries, supra, note 81.
8 4The depositary is, of course, the only such person mentioned in art. 734(1) C.C.P. Both
codes frequently describe a holder’s rights by reference to the depositary. Sequestration is a
sub-species ofdeposit (arts 1817-1827 C.C.L.C.). Innkeepers (art. 1813ff. C.C.L.C.) and carriers
(art. 1672 C.C.L.C.) are assimilated to depositaries. Testamentary executors (art. 918 C.C.L.C.)
and trustees (art. 981b C.C.L.C.) are also held to the obligations of a depositary.
85P.-B. Mignault, Le droit civil canadien, t. 8 (Montreal: Th~oret, 1896) at 154.
McGILL LAW JOURNAL
[Vol. 32
doctrine,8 6 a right to revendicate. In the only reported cases in which the
issue was raised the Courts have come to the same conclusion. 7 This result
is also confirmed by paragraph 734(1) C.C.R which permits a depositary to
seize before judgment on the grounds of his right of revendication (namely,
to exercise the attachment in revendication).
The legal foundation of the depositary’s right to revendicate, which
today is uncontested, is obscure. Most authors88 argue that it flows, as a
matter of practicality, from the obligation of care and preservation. 89 Be-
cause the contract rests on the confidence of the depositor in the depositary,
it is argued that the depositary should not be deprived of the legal means
to vindicate that confidence, should he be wrongfully dispossessed by a third
party.90
In several instances the Civil Code
94. Holders Analogized to Depositaries –
assimilates other holders having pure detention to the depositary. For ex-
ample, the rules of ordinary deposit apply by virtue of article 1814 C. C.L. C.
to the necessary deposit of innkeepers, and by virtue of article 1672 C.C.L.C.,
to carriers. Moreover, in some cases an obligation of pure detention can be
inferred from the Civil Code, the Code of Civil Procedure or a special statute.
Thus, the obligation of a non-debtor guardian holding goods seized in ex-
ecution (articles 583ff. C.C.P)91 or seized before judgment (article 737 C.C.P),
the obligation of an evicted good faith purchaser under paragraph 2268(4)
86For the current position in France, see Bouloc, supra, note 1, nos 4 and 178; Logier, supra,
note 1, no. 35.
(Sup. Ct); Charron v. Walker (1918), 54 C.S. 439 (Ct Rev.).
87Morris v. Fournier (1938), 43 R.R 331 (Sup. Ct); Ouellette v. Laberge (1921), 28 R.L. 193
88See Bouloc, supra, note 1, no. 178; LUgier, supra, note 1, no. 35; M. Planiol & G. Ripert,
Tait~pratique de droit civilfranqais, t. 3, 2d ed. by M. Picard (Paris: L.G.D.J., 1952) no. 391.
89See Charron v. Walker (1918), 54 C.S. 439 at 441; Aix, 19 December 1950, J.CP 1951.11.6491
(note M.J. Pierrard); E. Glasson, A. Tissier & R. Morel, Traite thkorique et pratique d’orga-
nisation judiciaire, de competence et de procedure civile, 3d ed. (Paris: Sirey, 1932) no. 1234.
90Morris v. Fournier, supra, note 87. It is to be noted that the depositor himself can never
be in wrongful possession such as to give the depositary a right to revendicate as depositary.
On the one hand, art. 1810 C.C.L.C. requires the objects return to the depositor when de-
manded, notwithstanding a term. On the other hand, under art. 1811 C.C.L.C the depositary
is relieved of this obligation if he establishes his own ownership. But in such a case he would
be revendicating as owner, not as depositary. Finally, under art. 1812 C.C.L.C. he may refuse
delivery if he has a retention claim. Once again, if the depositor obtains possession, the re-
vendication would be as a retention claimant and not as depositary.
91Lamarre v. Weinish (1937), 43 R. de J. 33 (Sup. Ct); Dionne v. Poulin (1926), 29 Q.PR.
57 (Sup. Ct); Zinman v. Manie (1940), 78 C.S. 414; Hebert v. Brfile (1956), [1957] R.P 270
(Sup. Ct).
1986]
ENFORCING RIGHTS IN MOVEABLES
C.C.L.C. who is holding the property until he is reimbursed the price he
paid,92 and the obligation of the public curator who is holding unclaimed
goods 93 are analogous to simple deposit. 94 In each of these cases, therefore,
the holder ought to be able to revendicate from a wrongfully holding third
party.
ii. Those Who May Use an Object to the Benefit of Others
95. Quasi-Depositaries –
In addition to cases analogized to pure deposit,
the Civil Code also provides that other persons are seized as depositaries,
even though they may use the rights of the person for whom they hold for
the benefit of that person. Such analogies occur notably in successions and
liberalities. For example, article 918 C.C.L.C. provides that testamentary
executors are seized as depositaries 95 and specifically gives them a right to
claim possession of property, even as against heirs or legatees. 96 An identical
formulation appears in article 981b C.C.L.C., which gives trustees a right
to possesssion opposable to beneficiary donees and legatees.9 7 Thus, despite
confusion as to the locus of ownership of trust property, and doubts as to
whether the trustee under article 981a if. C.C.L.C. may claim a “real right
of administration”, there is no question that he may revendicate, at least
as depositary. While there is no explicit reference to depositaries in article
869 C. C.L. C., the reference to legatees who are “fiduciary or simply trustees”
coupled with the later reference to testamentary executors in that article
suggest that legatees under article 869 C.C.L.C. are also seized as deposi-
taries. 98 A similar result would appear to be indicated under article 964
9 2Pinard v. Bergeron (1977), [1977] C.S. 1158; Farmers Insurance Co. v. Gravel (1925), 41
B.R. 370. This would also apply to buyers in possession of goods after the sale has been annulled.
See, by analogy, art. 1539 C.C.L.C. and Mortgage and Discount Corp. v. Murphy (1935), 73
C.S. 148.
’93Public Curatorship Act, R.S.Q. c. C-80, s. 12.
94Several other situations previously examined could also fall under this rubric. These in-
clude, inter alia, the cases of repairers (art. 441 C.C.L.C.), pledgees (art. 1973 C.C.L.C.), usuf-
ructuaries (art. 484 C.C.L.C.) and sellers in possession (art. 1498 C.C.L.C.).
“This is true no matter how far the testator acting under art. 921 C.C.L.C. extends his
powers. See Gervais v. Gervais (1962), [1963] R.P. 49 (Sup. Ct). The executor, as such, is an
administrator who holds as depositary.
96See Banque Canadienne Nationale v. Couloinbe (1965), [1966] B.R. 780; Bellemare v.
Gtnereux (1972), [1973] C.S. 217; H6tel-Dieu St-Michel de Roberval v. Metropolitan Life In-
surance Co. (1940), 78 C.S. 512.
97Dubreuil-Goyette v. Sherbrooke Trust Inc. (1976), [1976] C.A. 571. Of course, the trust
instrument could stipulate that an income beneficiary would have custody of the trust corpus,
in which case the trustee could not revendicate from such income beneficiary.
98See Valois v. de Boucherville (1927), [1929] S.C.R. 234, [1928] 1 D.L.R. 343; but note the
statements of Mignault J. at 241 and Rinfret J. at 270 where the court seems to accord the
trustee the status of owner.
REVUE DE DROIT DE McGILL
[Vol. 32
C.C.L.C. in cases where a will creates a legatee who is not also an institute
of a substitution.99
The powers and obligations of judicial’00 and conventional 0′ seques-
trators are, in principle, also those of the simple depositary. 02 But, de-
pending on the contract or the judgment of the court, the sequestrator may
also have the power to manage the property of those for whom he holds. 103
While there is some dispute as to whether the sequestrator is a depositary
with the power to manage’ 04 or a mandatary of the parties, 0 5 his title to
is not in doubt. 0 6
revendicate –
should he be wrongfully dispossessed –
The mandatary acting under a special mandate in respect of a corporeal
moveable should also be able to revendicate as mandatary. Article 1713
C.C.L.C. imposes upon the mandatary an obligation to execute the mandate
as a prudent administrator.107 Should the mandate simply consist of an
obligation to hold and deliver, it will make the mandatary a pure depositary,
while if it implies repair or exploitation, it will resemble conventional se-
questration. 108 If the mandate arises in the context of a partnership, it en-
compasses all rights vested in the other partners, including, in cases where
one partner contributes property, the right to revendicate. 10 9
In each of these cases of a quasi-deposit, the administrator of the prop-
erty assumes not only an obligation of care and return, but also a collateral
obligation to derive profit for the individual for whom he holds.”10 Thus,
like the depositary, the quasi-depositary has detention of the object under
a relationship of trust out of which he derives no personal use. On the other
hand, in none of these cases is the holder merely acting for another (as does
99Sce Masson v. Masson (1912), 47 S.C.R. 42 at 89-90, Anglin J. and at 73-74, Fitzpatrick
C.J.
00Sce arts 742-750 C.C.R, and arts 1823 and 1827 C.C.L.C.
o’0 See arts 1818-1822 C.C.L.C.
‘0 2See arts 745 C.C.R and 1819 C.C.L.C.
0 3L. Sarna, “Aspects of the Law of Judicial Sequestration in Quebec” (1977) 23 McGill L.J.
1
508; Cavanaugh v. Machabee (1969), [1969] B.R. 871; Gennari v. Zervos (1965), [1966] C.S.
433.
Ic4See arts 1794 and 1819 C.C.L.C., and C.EM.G. Inc. v. Pinto (5 August 1977), Montreal
500-05-013200-777 (Sup. Ct).
‘oSee System Theatre Operating Co. v. Pulos (1955), [1955] S.C.R. 448, 35 C.B.R. 127.
1o6See Bissegger v. M.G.A. Development Corp. (1973), [1974] R.P. 265 (Sup. Ct).
07Art. 1710 C.C.L.C See also Mongeau v. Mongeau (1971), [1973] S.C.R. 529. The case of
negotiorumn gestores will be discussed later as a case arising from a purely factual situation.
103E. Groflier, “L’importance croissante du mandat en droit qurb6cois: les d6veloppements
rfcents” (1985) 15 R.D.U.S. 445 at 453-55; compare Gennari v. Zervos (1965), [1966] C.S. 433.
109See arts 1846 and 1851 C.C.L.C.
I 10For a good example of revendication by a depositary with use, see Perreault v. Poirier
(1958), [1959] B.R. 447, rev’d on other grounds (1959), [1959] S.C.R. 843, 23 D.L.R. (2d) 61;
see also J. Watterson and Co. v. Montpetit (1933), 54 B.R. 548.
1986]
ENFORCING RIGHTS IN MOVEABLES
a tutor or curator); rather, he is always acting on the basis of his contractual
or legal obligation of care and return, related to specific corporeal property.
For this reason there is no doubt that the quasi-depositary may also reven-
dicate under the same title as a pure depositary.I
96. The Obligation ofAdministration and Representation – Apart from the
cases of obligations of care and return directly giving rise to a right to use,
the Civil Code also contemplates that a person may have contractual or
legal custody over a corporeal moveable which implies such an obligation
in an indirect fashion. Paradigm cases are those of the tutor, the curator,
the judicial adviser and the public curator. The right of tutors, 12 curators,” 13
advisers’14 and the public curator” 5 to revendicate varies according to
whether they have a right of administration or merely an advisory role in
respect of their charge’s property.116 Tutors may revendicate in their pupil’s
7
name, as may curators to interdicted imbeciles and to insane persons.’ ‘
Curators to the property of prodigals and drunkards, as well as certain
curators to property under article 347 C. C.L. C., may also revendicate under
similar terms.”18 The right of the Public Curator to revendicate is identical
to that of private curators. 19 By contrast, judicial advisers have no status
to revendicate in their advisee’s name.’ 20
Quite separate from the question of whether these administrators may
revendicate in a representative capacity is the question as to whether they
may revendicate under their own name. For example, does their respon-
sibility for property and their possible exposure to an action in damages
generate a right to sue in a fashion analogous to the right of the depositary?
Situations where a pupil or other charge could not revendicate, but where
a depositary or administrator could do so, are difficult to conceive of; there-
fore, it is not surprising to find no judicial decision on the point. However,
as the situation of the Public Curator revendicating “ownerless” property
S’In other words, these examples of”quasi-deposit” imply (as the case of the special mandate
shows clearly) an element of representation. Nevertheless, the revendication is on an inde-
pendent footing which does not require the plaintiff to prove the depositor’s, mandator’s, or
settlor’s title.
” 2Arts 290 and 304 C.C.L.C.
1’3Arts 337, 340, 343 and 348 C.C.L.C.
114Arts 349 and 351 C.C.L.C.
115Public Curatorship Act, supra, note 93, ss 10 and 23.
” 6See Commentaires, supra, note 81 at 372-75. See also P. Azard & A.F. Bisson, Droit civil
qu~bcois, vol. 1 (Ottawa: Editions de l’Universit6 d’Ottawa, 1971) nos 19-20.
11tThus, the right to revendicate accruing to the minor or imbecile must be exercised by the
tutor or curator.
” 8See arts 90, 91, 676a, 688 and 945 C.C.L.C. The case of absentees, where the curator may
become owner, is discussed below, no. 112.
“19Public Curatorship Act, supra, note 93, s. 10.
’20See art. 351 C.C.L.C.
McGILL LAW JOURNAL
[Vol. 32
from a thief or other wrongful holder illustrates, such an action should
theoretically be possible.’ 2′
97. Scope of Revendication of Plaintiffs with a Personal Right Implying a
Custodial Obligation – Once revendication by a depositary on the basis of
an obligation of care and return is admitted, it is clear that the law must
also permit a range of other holders and custodians to revendicate from
wrongfully holding third parties. Thus, in this context also, the action in
revendication reveals non-petitory features. While there can be no objection
in principle to permitting the action for those whose primary obligation is
pure preservation – depositaries and holders analogized to depositaries –
other considerations bear on the situation of those with a right to use the
object to the benefit of others. Nevertheless, where the holder is a quasi-
depositary –
a testamentary executor, trustee, sequestrator or special man-
datary –
the analogy to deposit is sufficiently strong that the right to re-
vendicate should be permitted. Where, however, the holder assumes an
obligation of representation (and thereby acts for another) it is less certain
whether that status is enough to sustain revendication in his own name.
Presumably, unless such representatives could also claim a status of de-
positary or quasi-depositary (that is, unless they also had defacto custody)
revendication in their own name would be impossible.
c. Titularies of a Personal Right of Enjoyment
98. Personal Rights of Enjoyment – The law also imposes an obligation of
care and return on every holder who has a personal right to use an object.
While the intensity of the obligation to care for an object varies according
to the nature of the contract and to its gratuitous or onerous character, the
obligation to return is invariably one of result. 22 That is, subject to any
special contractual terms, both the borrower for use and the lessee –
the
two paradigmatic cases of personal rights of enjoyment (jus ad rem) – must
care for the object as prudent administrators and maintain its destination.-‘2 3
In addition to these rights of enjoyment arising directly by contract, there
are two other cases where the Code contemplates that a holder may use to
his own profit: the income beneficiary of a trust in possession, and the
‘210nly one example involving a private tutor or curator comes to mind. Imagine a minor
who upon attaining his majority settles a lawsuit by abandoning an action in revendication
brought by his tutor. If he does so prior to his tutor’s accounting, the tutor may wish to avoid
his potential liability under art. 290 C.C.L.C. by revendicating on the basis of his obligation
of care and return.
’22Sce, e.g., arts 1617, 1623 and 1766-1769 C.CL.C.
‘ -‘See arts 1618 and 1767 C.C.L.C.
19861
ENFORCING RIGHTS IN MOVEABLES
owner/guardian of property under seizure. 124 The situation of capital be-
neficiaries in possession, heirs with provisional possession and promisees
of sale in possession will be considered under the rubric of future real rights.
The situation of the non-owner spouse under certain matrimonial regimes
may also be analogized to that of a holder with use, although the exact
nature of the rights at issue remains uncertain.1 25 In each of these five cases
the holder is vested with slightly different prerogatives in the object held,
and as a consequence the entitlement to revendicate requires separate dis-
cussion.
99. Borrowers for Use – The contract involving a personal right of use
which most closely resembles deposit is the loan for use. 126 Under a loan
for consumption, the borrower becomes owner 27 and thus may exercise an
action in revendication as such. 128 The borrower for use, however, neither
becomes owner, nor acquires a real right in the thing lent. 29 He is obliged
to care for the object and return it in good condition to the lender. These
obligations are identical to those imposed upon the depositary,’ 30 except
that the borrower may in all cases use the object, while the depositary may
do so only with the consent of the depositor.’ 3′
Given the rationale for the depositary’s right of revendication (the ob-
ligation of care and return) one might well conclude that a borrower for use
is also vested with a right to revendicate as against third parties wrongfully
dispossessing him. 32 Yet this conclusion might be seen to run counter to
the basic theory of personal rights of enjoyment, according to which the
owner (lender) must ensure the enjoyment of the borrower, who cannot of
his own right vindicate that enjoyment. Nevertheless, Quebec courts have
permitted borrowers to act directly in order to claim damages from third
124See art. 583 C.C.P. for the case of an owner/guardian of property under seizure. The
situation of capital beneficiaries in possession, heirs with provisional possession and promisees
of sale in possession will be considered under the rubric of future real rights.
125See, e.g., arts 450(2) and 479(2) C.C.Q.
’26Arts 1763-1776 C.C.L.C.
’27See arts 1777-1784 C.C.L.C., particularly art. 1778 C.C.L.C.
-‘2 See above, no. 54. Quasi-usufruct under art. 452 C.C.L.C. resembles in this respect a loan
’29See especially arts 1764 and 1774 C.C.L.C.
1
-10H. Roch & R. Par6, TraitW de droit civil du Quebec, t. 13 (Montreal: Wilson et Lafleur,
for consumption.
1952) at 169-77.
‘3 1Compare art. 1766 C.C.L.C. with art. 1802 C.C.L.C.; art. 1769 C.C.L.C. with art. 1805
C.C.LC.; art. 1770 C.CL.C. with art. 1812 C.C.LC.; art. 1763 C.C.L.C. with art. 1804 C.C.L.C.
1320ne might argue that the deposit implies that the depositor is relying on the depositary
to protect his goods and is deemed to give him a mandate to revendicate. Yet, in view of the
fact that even those with a simple jus ad rein may be depositors, the foundation of the de-
positary’s right cannot be in an implied mandate from the titulary of a real right, but must
arise from his obligation of care and return.
REVUE DE DROIT DE McGILL
[Vol. 32
parties. 33 In such cases damages have been awarded not only for the holder’s
loss of enjoyment but also for the damages suffered by the owner to whom
he is responsible.’3 4 In view of the essentially gratuitous character of the
loan for use, its analogy to deposit, while unorthodox, does not seem totally
misplaced.135
100. Lessees – A far more difficult case for permitting revendication is that
of the ordinary lessee.’ 36 While articles 1617, 1621 and 1623 C.C.L.C. im-
pose upon the lessee obligations of care and return analogous to those of
the depositary, other features of the contract suggest that the lessee should
have no status to revendicate. For example, articles 1608 and 1609 C. C.L. C.
oblige the lesssor of moveables to warrant the lessee’s enjoyment against
legal and factual disturbance.1 37 While this latter obligation does not give
rise to a claim for damages against the lessor in respect of the acts of third
parties (such as a wrongful taking), the lessee may nevertheless in such a
situation demand specific performance, cancellation of the contract or a
reduction in rent. In other words, the general theory of the lease of things
contemplates that because the lessee is paying the lessor a rent (and neither
doing him a service as in deposit nor receiving a gratuitous service from
him as in loan), he should look to the lessor to vindicate his jus ad rem. 13 8
On the other hand, the fact that the lessee assumes the same obligation
of care and return as a depositary has induced the court, in at least one
recent case, to permit a lessee who had subleased an object to bring an
opposition to withdraw from a seizure of the sub-lessee’s goods. The court
concluded: “il n’y a pas raison valable de traiter le locataire qui est sous-
locateur differemment du d6positaire puisque comme le d6positaire, il a
l’obligation de rendre et dans le cas pr6sent, il a 6galement l’obligation de
garde”. 3 9 If the reasoning in this case is valid, it should also apply to any
133See Saint-Pierre v. Lambert (1936), 42 Q.P.R. 393 (Sup. Ct); Kirouac v. Ruel (1941), 70
B.R. 350; Perreault v. Therrien (1936), 74 C.S. 481; Goyette v. Vgzina (1946), [1946] C.S. 327,
all of which gave a borrower an action in damages.
134See Montpetit v. Liboiron (1954), [1954] B.R. 301; Delorme v. Anocencio (1957), [1960]
R.L. 202 (Sup. Ct) and the comment by C. Perrault, “Qui est autrui?” (1966) 26 R. du B. 368
at 374.
135That is, as in deposit, the dominant psychological characteristic of the contract is the trust
of the lender in the borrower. Hence, revendication from a third party under circumstances
similar to those of the depositary might well be justifiable.
1360n the analysis presented here, the financial lessee under art. 1603 C.C.L.C. is considered
to have a real right and not simply ajus ad rem like the ordinary lessee. See R.A. Macdonald,
“Enforcing Rights in Corporeal Moveables: Revendication and its Surrogates (Part One)”
(1986) 31 McGill U. 573 at note 280ff. [hereinafter “Revendication: Part One”].
137Compare arts 1605-1606 C.C.L.C. with arts 1776 and 1812 C.C.L.C.
138But see J. Derrupp6, La nature juridique du droit du preneur di bail et la distinction des
droits riels et des droits de cr~ance (Paris: Dalloz, 1952).
139Discothkque & Golf Lafontaine Inc. v. Lussier (1980), [1980] C.S. 166 at 169.
1986]
ENFORCING RIGHTS IN MOVEABLES
lessee who is not exempted by contract from an obligation of care and
return. 140
In other words, modern developments in the contract of lease such as
the lessee’s right to withhold rent so as to effect repairs to the object, and
his enhanced right to sublease, reflect a legislative desire to give him greater
prerogatives in the object itself. It is, therefore, not surprising that courts
respond by permitting a lessee direct access to remedies to protect these
prerogatives. Nevertheless, whether courts will permit revendication by les-
sees who do not also have a contractual claim to detention against the
defendant in the action (or by his creditors) remains uncertain.’ 41
101. Income Beneficiaries of a Trust in Possession – According to modern
analyses of the trust relationship neither the income beneficiary nor the
capital beneficiary have a real right in the corpus of the trust. 142 Rather,
they merely have a personal right to enforce the trust as against the trustee. 143
Nevertheless, in certain trust arrangements the income beneficiary may ac-
tually be given physical custody of the corporeal moveables subject to the
trust, in addition to a right to the revenue produced. In such cases one might
well characterize the beneficiary’s right as a jus ad rem in at least part of
the trust corpus.144 The resulting legal relationship might then be seen as
analogous to that of the borrower for use or of the lessee. 45 If so, the
observations made earlier might also justify the courts permitting a right
of revendication based on the income beneficiary’s obligation of care and
40The court was influenced by the fact that the lessee (as sub-lessor) assumed many of the
1
lessor’s obligations; but the true character of the sub-lessor’s title should not matter vis-el-vis
third parties seizing the sub-lessee’s goods.
14 tThat is, if the courts see the obligation of care and return as fundamental to all leases
(and not just to leases where there has been a sub-lease), it is likely that the lessee will be
permitted to revendicate. Paradoxically, therefore, the reasons for attributing a character of
reality to the lessee’s rights are more persuasive in the case of moveables than in the case of
immoveables.
42M. Cantin Cumyn, Les droits des b~n~ficiaires d’un usufruit, d’une substitution et d’une
1
fiducie (Montr6al: Wilson & Lafleur, 1980) nos 90-91. See R.A. Macdonald, “Revendication:
Part One”, supra, note 136, no. 72.
143Depending on the composition of the trust corpus, the capital beneficiary may, however,
have an eventual or future real right: see below, no. 121.
144Of course, everything depends on the specific language of the will or deed of donation.
In Ballantyne v. Royal Trust Co. (1976), [1976] C.A. 606, on one reading of the judgment, the
court seems to call such an arrangement a substitution. With minor variances, it might also
amount to a usufruct. See Cantin Cumyn, supra, note 142 for an analysis of the legal char-
acteristics proper to each of these devices.
1450n the analogy to lease in such cases, see Cantin Cumyn, ibid., no. 92.
McGILL LAW JOURNAL
[Vol. 32
return. 146 To date, however, no judicial decision has been given on this point,
presumably because the cases where the trustee refuses or neglects to re-
vendicate are so rare.
102. Owner/Debtors Whose Property is under Seizure – Where moveable
property is seized in execution the seizing officer must, pending judicial sale,
attribute custody of the goods to the debtor, unless there are special reasons
for not doing so. 147 Like the guardian who is a third party, the owner/
guardian assumes an obligation of care and return analogous to that of the
depositary: he may neither damage nor dispose of the goods and he must
present them for sale on the date indicated on the writ of seizure. 148 Never-
theless, since he remains owner, the courts have permitted the guardian to
exercise a limited right to use the goods. 149 Thus, the owner/guardian should
be entitled to revendicate from wrongfully holding third parties, in his qual-
ity either as owner or as a depositary with a right to use.15 0 Similar principles
would also apply whenever an owner is named guardian under a seizure
before judgment.’ 5′
103. Non-Owner Spouses under Certain Matrimonial Regimes – The cor-
rect characterization of the rights of non-owner spouses in what may be
loosely described as “family property” has always been problematic. More-
over, recent reforms to the Civil Code seem to have created several new
types of rights as between spouses. 52 Under the earlier community of prop-
erty regimes, the respective rights of spouses in the property of the marriage
were equivocal. While the Code gave spouses the right to concur in the
disposition of household furniture 53 or in the disposition by gratuitous title
of all other community moveables,154 the basic administration of the com-
1461n principle, this right should extend not only to third parties wrongfully in possession,
but also to the trustee or the capital beneficiary wrongfully asserting custody of the corpus.
147Arts 583 and 608 C.C.R See Cie Financitre Canadienne v. Cotte (1981), [1981] C.P. 160.
148Hebert v. Bral, supra, note 91; Dallaire v. Decor Floral (1977), [1978] R.P 124 (Prov. Ct).
See also Y. Lauzon, Droit judiciaire prive: Execution des jugements (Montr6al: Th6mis, 1983)
at 61-65.
“49Khullar v. Decarie Square Inc. (1980), [1980] C.S. 1097.
150For an example of such revendication see Moisan v. Roche (1877), 4 Q.L.R. 47, 1 L.N.
33 (Q.B.). That is, he ought to be able to reclaim from, say, a thief, simply on the basis of his
status as guardian. See also Franey v. Costello, supra, note 78.
’15 Art. 737 C.C.P See also Fairview Auto Leasing Ltdv. Salvail (1980) [1980] R.P 97 (Prov.
Ct); JAC. Ltee v. Aineublements Branchaud Inc. (1980), [1980] C.S. 1129; Cie de construction
Belcourt v. Bronzage 3 Soleils Inc. (18 December 1985), Quebec 200-09-000699-857 (C.A.).
’52See J. Pineau & D. Burman, Effets du mariage et regimes matrimoniaux, 3d ed. (Montr6al:
Th~mis, 1984) passim, particularly at 126-28.
Reform Family Law, S.Q. 1980, c. 39, s. 66.
153Arts 1425a(2) and 1292(2) C.C.L.C., as rep., An Act to Establish a New Civil Code and to
154Arts 1292(3) and 1425a(2) C.C.L.C., as rep., An Act to Establish a New Civil Code and to
Reform Family Law, ibid.
19861
ENFORCING RIGHTS IN MOVEABLES
munity was conferred on one spouse only.1 55 For this reason it is doubtful
that the de facto right of use of one spouse over community property ad-
ministered by the other could have amounted to a jus ad rem and could
have been capable of sustaining an action in revendication, apart from an
express or implied domestic mandate. 56
But the Civil Code of Quebec creates additional problems in the inte-
gration of these limitations with articles 450 and 479 C.C.Q. Under article
450 C.C.Q. household furniture used by the family has a protected status
regardless of its ownership.1 57 An innocent spouse may now seek the nullity
of acts in relation to household furniture to which he or she has not con-
sented. Similarly, article 479 C.C.Q. generalizes the rule which permits an
innocent spouse to seek the nullity of acts which are undertaken in excess
of powers vested in the other under a matrimonial regime. However, given
that these two rights cannot be exercised against third parties in good faith
in onerous transactions,’ 58 and given a two-year prescription period on such
actions, 59 the occasions where the non-owner spouse could actually exercise
this right of annulment are quite limited.
On the other hand, where the act is gratuitous or the third party is in
bad faith, the innocent spouse should be entitled to recover the property,
once having had the unauthorized disposition annuled. 60 Yet the right of
annulment appears to be strictly attached to the spouse for this limited
purpose only. It would not, therefore, give rise to a general right to reven-
dicate the other spouse’s acquests, the community property or the other
spouse’s private property used as household furniture as against non-con-
tractual third parties such as thieves or overholding bona fide co-contrac-
tants such as lessees, borrowers or depositaries. Nor would it give a right
to revendicate household furniture from a spouse who simply removed it
from the family residence. 16′ In other words, the non-owner (or non-ad-
ministrator) spouse’s right to use “family property” is merely defacto. Thus,
community of property, severely limits the non-concurring spouse’s rights.
155Moreover, art. 479(2) C.C.Q. which now applies to all matrimonial regimes, including
156See arts 447 and 475-477 C.C.Q. on domestic mandate. While an argument for permitting
revendication could also be made on the basis of the spouse’s future right to a part of the
community, there is no asset specificity to this right. Revendication, therefore, could not be
possible on this basis either. See Pineau & Burman, supra, note 152 at 244-50. A similar result
should follow in respect of acquests under the partnership of acquests regime: see arts 493-494
c.C.Q.
157Pineau & Burman, ibid. at 154-59. This is the same rule as for community property and
acquests, except that it also includes the private property of each spouse used as family furniture.
’55Arts 450(2) and 479(2) C.C.Q.
’59See art. 2261.1 C.C.L.C.
1601n other words, the rights created by arts 450 and 479 C.C.Q. seem to resemble the Paulian
161See Pineau & Burman, supra, note 152 at 60. In this sense, the rights of the non-owner
spouse are not radically different from those of a lessor of immoveables. See also above, no.
84.
recourse. See above, no. 88.
REVUE DE DROIT DE McGILL
[Vol. 32
since in the ordinary course of the marriage that spouse assumes no obli-
gation of care and return, it is difficult to see upon what basis (other than
the domestic mandate or some tacit negotiorum gestio) entitlement to bring
the ordinary action in revendication could be grounded. 162
104. Scope ofRevendication ofPlaintiffs with a Personal Right ofEnjoyment
– Even though holders with ajus ad ren (namely, borrowers for use, lessees,
income beneficiaries of a trust in possession, and owner/guardians of prop-
erty under seizure) assume an obligation of care and return not unlike that
of the depositary, doctrinal authorities doubt that this obligation should be
sufficient to ground an entitlement to revendicate. However, recent judicial
decisions on the rights of borrowers for use and lessees suggest that the
action in revendication should be open to any holder who has a legal interest
in the conservation of the thing. 63 On this analysis the income beneficiary
of a trust in possession, and the owner/guardian of property under seizure,
should also be able to revendicate. Nevertheless, it is clear that non-owner
spouses, having no jus ad rem, also have no general right to revendicate
“family property”. In asssessing this last situation one arrives at the very
limits of the concept of a personal right of enjoyment in respect of a corporeal
moveable.
3.
Titularies of Future, Conditional and Eventual Real Rights
105. Conservatory Revendication – Despite ambiguities at its margins, the
distinction between real rights and personal rights remains fundamental to
the civil law. Yet legal rights may also be characterized along axes which
cut across this classical dichotomy. For present purposes the most important
alternative classification is that which distinguishes between actual, future,
conditional and eventual rights.164 In the cases reviewed in the preceding
two sections the revendicating plaintiff was always asserting an existing and
actual right, whether real or personal. It is now appropriate to consider
whether the action in revendication may be deployed strictly as a conserv-
atory recourse. That is, does a future, conditional, or eventual right in respect
162That is, the fact that one spouse may use “family property” and may have some control
over its eventual disposition cannot be seen as vesting that spouse with even a jus ad rem.
’63This also seems to be the position which the courts in France are reaching: see lUgier,
supra, note 1, no. 34; but compare H. Mazeaud et al., LeCons de droit civil, t. 2, vol. 2, 6th
ed. by E Gianviti (Paris: Montchrestien, 1984) no. 1627.
164See J. Ghestin & G. Goubeaux, TraitM de droit civil: Introduction genrale, 2d ed. (Paris:
L.G.D.J., 1983) at 182, who distinguish between “droits actuels, futurs, conditionnels et 6ven-
tuels”.
1986]
ENFORCING RIGHTS IN MOVEABLES
of a corporeal moveable imply a sufficiently intense legal relationship that
specific recovery by a wrongfully dispossessed plaintiff should be permitted?
In the analysis which follows, only situations involving the assertion of a
real right will be discussed. 165
106. Modalities of Ownership – Notwithstanding that the civil law con-
ceives of ownership (and for that matter of any real right) as being indi-
visible, in any transfer of title the possibility of future or conditional rights
may arise. 166 Moreover, as in any real contract, right and detention may be
dissociated. Thus, in most circumstances involving a contractual transfer
of title, the person whose rights are only potential will actually have physical
control of the corporeal object upon which his rights bear. For example, a
buyer under a suspensive condition, a buyer in a contract where the transfer
of title is deferred by a term, and a promisee of sale normally (although not
always) will have detention of the object to be purchased. Similarly, others
with only potential rights (such as heirs in provisional possession, and buyers
under protected sales) will necessarily have detention. 167 Conversely, some
potential owners do not have custody of the object of their potential right.
These include, in the context of a sale, sellers who retain a right of resolution
notwithstanding delivery, and buyers who take neither title nor delivery.
Other examples include the cases of donors and testators who stipulate a
right of resolution, and of substitutes, contractual institutes, presumptive
heirs and capital beneficiaries of a trust.
While each of the various legal relationships just reviewed has a separate
footing, each generates at least one titulary of a potential real right.168 Even
though contractual reservations of title do not presuppose a novel legal
institution such as the substitution or the trust, the legal relationship between
the titulary of the right and the object of the right is similar. For this reason,
165Eventual personal rights are simply too remote to suggest the availability of revendication,
although actions in specific performance may be possible. For example, a promisee/lessee could
not revendicate, even though he might conceivably enforce the contract of lease by specific
performance. Potential rights not grounded in a contract or other legal relationship (e.g., where
they flow from prescription in course) will be discussed in the next section. It should also be
noted that in several cases a conditional or future real right is coupled with an existing personal
right (e.g., a conditional buyer in possession). In the analysis which follows it is the nature of
the real right which will be the focus of discussion.
166In principle, the remarks which follow are equally applicable to real rights less than own-
ership. It is, however, less plausible to find examples of such modalities in respect of lesser
principal real rights or even accessory real rights.
167The expression “buyer under a protected sale” means the buyer of the thing belonging to
another who purchases under the conditions of arts 2268(3) and 2268(4) C.C.L.C. and who is
holding prior to the acquisition of title through prescription.
16SIn addition to any personal right which may be created (e.g.,as between buyer and seller
in a contract translative of ownership) these situations imply that one party has a potential
jus in re.
34
McGILL LAW JOURNAL
[Vol. 32
they will be analysed not according to the precise legal origin of the potential
right, but rather according to the locus of detention.
a. Potential Owners with Physical Control
107. Types of Potential Ownership – Potential ownership arising otherwise
than from a relationship of fact may be the consequence of a contract (usu-
ally one of sale, but also of ordinary donation and marriage covenant) or
a succession (usually by will, but also by operation of law). In addition to
usual contractual modalities of ownership, applicable equally to onerous
and gratuitous contracts, the law knows three special institutions –
the
substitution, the trust and the contractual nomination of an heir – which
complicate the regime of liberalities. Nevertheless, except in the most im-
plausible situations, the titularies of potential rights under these latter ar-
rangements will not have custody of the object upon which their right bears. 69
It is therefore appropriate to begin with a discussion of contractual mo-
dalities implying possession of the potential owner: conditions, terms, and
promises accompanied by delivery.
108. Ownership under Suspensive Condition – Like the seller who transfers
title under a suspensive condition, the buyer subject to a resolutory con-
dition is considered as an owner and may revendicate as such. In contrast,
the buyer or other transferee under suspensive condition and the seller or
other transferor under a resolutory condition are considered merely as hav-
ing a potential right. 70 For purposes of locating ownership (and the right
to revendicate as owner) the law considers only the individual whose rights
are subject to resolution as owner. 171
Whether or not the party whose ownership is suspended by a condition
may revendicate against a third party who wrongfully interferes with the
property is problematic. It is clear that he cannot revendicate as owner. 172
Nevertheless two features of the law of conditions suggest that he has a jus
169The implausible cases include instances where the substitute is also an undivided institute,
where the capital beneficiary of a trust has been given custody (e.g., where he may vote shares,
the income beneficiary gets the dividends and the trustee has the right of disposition) and
where the contractual institute has a right in specific matrimonial furniture.
70Classical doctrine would characterize this as a “conditional right”. See G. Marty & P.
Raynaud, Droit civil: Les biens, 2d ed. by P. Raynaud (Paris: Sirey, 1980) no. 463 and Mazeaud,
supra, note 163, nos 1395-1401.
171See above, no. 52. See also Accessoires d’Autos Laurentien Lte v. Churchill Constructors
172For an examination of the rights of owners under suspensive condition, see Montreal Trust
v. Roadrunner Jeans (1982), [1983] C.S. 245, 27 R.P.R. 216; and Planiol & Ripert, supra, note
38, no. 231.
(1973), [1973] R.P. 216 (Sup. Ct).
1986]
ENFORCING RIGHTS IN MOVEABLES
ad rem sufficient to support revendication. First, article 1086 C.C.L.C. pro-
vides that the creditor may, prior to fulfillment of the condition, undertake
all acts conservatory of his rights. 173 Secondly, should the condition occur,
the creditor’s rights are retroactively consolidated.174 The conditional own-
er’s aspiration to ownership distinguishes his detention from that of the
lessee (or other titulary of a contractual jus ad rem necessarily ending with
the return of the object to the co-contractant) and intensifies his legal re-
lationship with the object of his right.17 5 In other words, while the possession
of the creditor under a suspensive condition is precarious, that custody, in
combination with his conditional right and his exercise of material acts
consistent with ownership, have been held sufficient to ground a claim in
revendication. 176
The legal rationale behind this result seems to be that because the
conditional owner concurrently assumes a contingent obligation of care and
return similar to that of the lessee, and acquires a contingent retroactive
right of pure ownership, the authorization to take conservatory measures
must encompass the right to protect his detention directly.177 In this sense,
revendication by conditional owners seems to reveal at least the rudiments
of a petitory character which are absent in ordinary cases where a holder
has a jus ad rem. 178
109. Ownership Suspended by a Term – The buyer or other transferee whose
ownership is suspended by a term is in a slightly different position from
that of the conditional transferee. While his rights are more certain than
those of the transferee under a suspensive condition, they are still only
potential. 179 Moreover, when the term arrives the transferee’s rights are not
retroactive, but date only from the expiry of the term.180 Nevertheless, the
creditor’s potential loss of the benefit of the term for payment (the usual
173These include the right to bring an oblique action, actions to interrupt prescription, the
Paulian action and the action in declaration of simulation. See M. Tancelin, Les obligations,
2d ed. (Montreal: Wilson & Lafleur/Sorej, 1984) no. 249; Baudouin, supra, note 16, nos 609-
10.
174Tancelin, ibid.; Baudouin, ibid.; arts 1085 and 1088 C.C.L.C.; R. Jambu-Merlin, “Essai
sur Ia rtroactivit& dans les actes juridiques” (1948) 46 R.T.D. Civ. 271; M. Vanel, “Propri6t”
in Encyclopedie Dalloz, supra, note 1, nos 140-41.
17See Ortscheidt, supra, note 1, no. 100; but compare Bouloc, supra, note 1, no. 178.
176See Studebaker Corp. of Canada v. Glackmeyer (1928), 44 B.R. 216; and Frechette v.
177Jambu-Merlin, supra, note 174; see also M.A. Loutre, “Etude sur la rrtroactivit6 de Ia
Carrikre Lumber Co. (1947), [1948] B.R. 185.
condition” (1907) 6 R.T.D. Civ. 753.
178See Tancelin, supra, note 173; Baudouin, supra, note 16.
’79See Tancelin, supra, note 173, nos 326-27.
’50Hence, while the obligation is certain, the creditor has no recourse to oblique or Paulian
actions against the tmnsferor see Baudouin, supra, note 16, no. 599. But he may bring an
action to interrupt prescription: see Tancelin, supra, note 173, no. 242.
REVUE DE DROIT DE McGILL
[Vol. 32
correlative of the term for transfer of ownership) exposes him to a contingent
liability not unlike that of the conditional buyer or lessee. Consequently,
once he obtains custody he should be able to revendicate from third parties
who wrongfully dispossess him.’ 8′ In this case, however, the rationale would
seem to lie in the transferee’s detention. That is, the absence of retroactivity
suggests that the buyer’s ownership is never equivocal. The revendication
would be strictly a possessory recourse as in the case of the lessee.1 82
110. Promisees of Sale – The situation of the promisee of sale is analogous
to that of the conditional or term buyer. 8 3 Under article 1478 C.C.L.C., in
bilateral promises of sale, delivery and actual possession of the corporeal
moveable normally complete the sale. The transferee thus may revendicate
as owner against all persons, even if the actual sale be not yet completed
or judicially confirmed. 84 In most cases, however, the promise of sale is,
in fact, made in the context of an instalment sale – where, notwithstanding
both promise and delivery, the seller retains title. That is, the seller promises
to transfer title at a future date, upon the fulfillment of a condition: full
payment of the purchase price.
In such cases the transferee once again acquires only a potential right.
Neither is this right retroactive, as in a conditional transfer, nor is it certain,
as in a transfer under a term. Yet an analogy can be drawn between prom-
isees of sale with detention, whose right to obtain title is deferred by a future
or uncertain event, and buyers under a term. 85 On this basis promisees
have been permitted to revendicate from third parties wrongfully in pos-
session. 86 A similar conclusion may be derived from the Consumer Pro-
tection Act and the Automobile Insurance Act, 187 which establish separate
to a conditional buyer.
8’8 Tancelin, ibid., argues for permitting the same conservatory measures as those available
1821n sales where the transfer of ownership is suspended by a term, there is never any doubt
as to who is owner. Whether the question is asked before or after the arrival of the term, the
answer at any particular point in time is the same. In contrast, because conditions once ac-
complished have retroactive effect, the answer to the question of who was owner at any par-
ticular time will vary according to the accomplishment of the condition.
183Nevertheless, because of the maxim donner et retenir ne vaut, the remarks that follow
cannot apply to donations. A unilateral promise of donation accompanied by delivery generates
no rights. Either there is a don manuel, or there is a gratuitous loan-type contract. A bilateral
promise of donation accompanied by delivery is conceivable, though implausible.
184See Pourcelet, supra, note 39 at 23-24 who notes, however, that the sale must not be
conditional, or that the transfer must not be under some other title such as a lease. See also
Nadeau v. Nadeau, (1977), [1977] C.A. 248; and Payeur v. Dion (1979), [1979] C.S. 675.
’85While no court has yet explicitly so held, it would appear that bilateral promises where
the transfer is deferred by a term would also be analogized to sales under a term. For a general
discussion, see Rousseau-Houle, supra, note 39 at 313-44.
186See Studebaker Corp. of Canada v. Glackmeyer, supra, note 176.
87C.P.A., supra, note 27, ss. 15 and 136; Automobile Insurance Act, R.S.Q. c. A-25, s. 1.1.
19861
ENFORCING RIGHTS IN MOVEABLES
legal regimes affecting the rights of promisee purchasers in possession. The
former Act protects promisee purchasers from repossession by their seller,
in exactly the same manner as it protects conditional term buyers, while
the latter Act exposes promisee purchasers of automobiles to civil liability
as “owners” of their vehicles.
It would seem that the legal regime of bilateral promises of sale with
delivery parallels that of the ordinary law of sales, or sales with a term, as
the case may be, and that the right to revendicate should be established on
a similar basis.18 8 Recently courts have shown a greater tendency to give
such promisee purchasers recourse to conservatory measures, injunctions
and seizures before judgment. But in each case these remedies have been
explicitly based upon an exceptional recognition of a personal right.189 In
cases of a unilateral promise with delivery, the purchaser has an even more
tenuous rapport with the object. Nevertheless courts seem prepared also to
allow a possessory revendication by promisee purchasers, even in unilateral
promises accompanied by delivery prior to acceptance of the promise. 9 0
111. Dissolution and Resolution of Sale – A transferor who has given title
to his buyer is also vested with a potential right of ownership. This occurs
notably as a result of a legal right of dissolution or resolution, or a contractual
right of resolution. 191 Where the transferor/former owner retains detention,
other than by asserting the exceptio non adimpleti contractus of articles 1496-
1498 C.C.L.C., his right of detention has an uncertain legal footing. In most
cases, he would be acting as the mandatary or depositary of his buyer,
although he might also have no more than a simple relationship of fact with
the object (as a negotiorum gestor). The right to revendicate could, therefore,
be grounded in such a status.
But, since he is also a previous owner under a contract translative of
ownership, the transferor/former owner could claim the status of a potential
owner in possession. As such, and independently of his status to revendicate
under any other title, he should have a right to revendicate from wrongfully
holding third parties the object previously in his detention. The rationale
for such a right is similar to that advanced in the case of buyers under
’88See Ouimet v. Guilbault (1971), [1972] C.S. 859; Boisvert v. Bournival (1984), [1984] C.A.
133; and especially Banque Mercantile du Canada v. Bouchard (8 June 1978), Quebec 200-09-
000150-76 (C.A.).
189For an example with immoveables see Fronette v. Socit6 immobilibre du cours Le Royer
(23 February 1979), Montreal 500-05-002549-796 (Sup. Ct).
’90Since the acceptance is not retroactive, the purchaser could not claim pre-existing own-
ership at the time of bringing the action. He might argue that the action itself confirms his
acceptance, but he may also simply wish to recover the object so as to avoid liability towards
the seller for its loss. In the latter case, the revendication cannot be considered petitory.
’91See arts 1065, 1088, 1543 and 1544 C.C.L.C, and see above, no. 53.
McGILL LAW JOURNAL
[Vol. 32
suspensive conditions, except that his custody does not imply a right of use
in the object. 92 In other words, notwithstanding any limitations of the Code
or Consumer Protection Act upon his right actually to resolve or dissolve
the sale as against his buyer, vis-ed-vis third parties, his rights as a potential
owner in possession are sufficient to sustain revendication. 193
112. Buyers under Protected Sales – Where an object is purchased under
the conditions of paragraphs 2268(3) and 2268(4) C. C.L. C. (the buyer pur-
chases in good faith at a fair or market, etc.) the buyer does not immediately
become owner of the object purchased. This is true whether or not he later
becomes aware that he has purchased an object belonging to another. Prior
to the consolidation of his title by the effect of acquisitive prescription, the
legal nature of the buyer’s title is simply that of a potential owner in
possession. 194
Yet this is a peculiar potential ownership. Unlike the promissee pur-
chaser or the purchaser subject to a term or condition, the buyer under a
protected sale has no contract with the owner; however, in contrast to the
ordinary usucaptor, he may assert a legally-protected right against the true
owner. Moreover, this right has a legal, rather than a factual, foundation.
In the event of the buyer’s wrongful dispossession by a third party, he may
revendicate on the basis of such a right. In such cases (as in situations of
conditional ownership) the action has a petitory character. 195
113. Heirs in Provisional Possession- The legal regime of absence has three
stages in which the presumptive heirs may assert different rights in the
property of the succession. During the first stage the law presumes absence,
and the absentee’s property is administered by a curator; during the third
stage, the possession of his heirs is deemed absolute. In the first stage, the
curator to the property of the absentee appointed by the Superior Court
under articles 87-92 C.C.L.C. revendicates as an ordinary administrator; in
the third, the heir revendicates as owner.196 During the second stage, where
an absentee’s presumptive heirs obtain provisional possession of his prop-
erty, these presumptive heirs hold the property, from a functional point of
view, as potential owners in possession. Nevertheless, the Code characterizes
921n this case he would not normally be performing material acts consistent with ownership,
1
so that his relationship to the object is less intense.
See below, no. 118.
’93Once he has surrendered custody, however, he may no longer revendicate on this basis.
194See below, no. 175.
‘”5The distinction between protected sales and usucaption by a finder or ordinary buyer as
a foundation for revendication is important where third-party rights are concerned. Protected
buyers revendicate not only possession, but also as a result of art. 2268 C.C.L.C. on a petitory
basis. That is, they are vested by effect of law with a part of the true owner’s prerogatives.
196See Azard & Bisson, supra, note 116, no. 56; see also above, no. 55.
1986]
ENFORCING RIGHTS IN MOVEABLES
their possession as a trust and imposes the same obligations of administra-
tion upon them as upon the curator named by the Superior Court. 97
The point at issue, therefore, is whether their revendication has a pe-
titory character. The Code answers this question in the negative: even though
they may accede to the quality of heir, and even though article 103 C.C.L.C.
makes them parties defendant to actions against the absentee, heirs in pro-
visional possession are accountable not as potential owners but as admin-
istrators. More particularly, because absolute possession is afforded to heirs
as of the date of death (where this can be proved), while provisional pos-
session is afforded to presumptive heirs at the moment of the disappearance
or “latest intelligence received”, it may well be that heirs in provisional
possession ultimately will not see their provisional possession deemed ab-
solute. 198 It follows that revendication by wrongfully dispossessed heirs in
provisional possession will always be grounded in their status as adminis-
trators. 199
114. Liberalities Giving Rise to Equivocal Possession – Because of the
particular circumstances of both inter vivos and mortis causa liberalities,
the legal regime of property rights is sometimes equivocal. For example, in
addition to ordinary contractual terms, in successions and donations the
Code provides for revocation for ingratitude or exclusion for unworthi-
ness. 200 Let us consider the improbable hypotheses of a donor of a perfected
donation who discovers a cause of ingratitude prior to transferring the object
of the gift and who is then wrongfully dispossessed by a third party, or that
of an intestate or testate heir in possession (who is not an executor or
administrator) who discovers a cause of unworthiness prior to transferring
property to a legatee or to a coheir entitled thereto and who is then wrong-
fully dispossessed by a third party. In both such cases revendication could
not be sought as an owner, but only as a potential owner in possession. 201
The majority of equivocal situations arise, however, from the special
circumstances of substitutions, trusts and contractual nominations of heirs.
Where examples of potential ownership are at issue in substitutions and
trusts (as in the case of the substitute or the capital beneficiary) in most
cases the potential owner will not have physical custody. But since the
substitution or trust document may vest him with custody, it is worth asking
197Arts 96-97 C.C.L.C.
198See art. 99 C.C.L.C.; see also Azard & Bisson, supra, note 116, no. 56.
199Unlike the case of conditional owners, the true heir asserts a new legal title, even when
his provisional possession is deemed absolute (and is made retroactive to the date of death).
Arts 98-99 C.C.L.C. give a distinct title to heirs entitled to inherit as of the date of death. The
potential ownership is defacto, and not the result of a pre-existing contract.
2Arts 610-613, 813-816 and 893 C.C.L.C.
201This example serves to show the distinction between revendication as executor or ad-
ministrator, and revendication as potential owner in possession.
REVUE DE DROIT DE McGILL
[Vol. 32
whether he acquires any superior title to revendicate from wrongfully hold-
ing third parties as a consequence of his potential ownership. 202 Because
the substitute and capital beneficiary are deemed to take directly from the
settlor under articles 962 and 981a ff. C.C.L.C. their revendication presum-
ably will be petitory.20 3
The rights of contractual institutes in possession are more problematic.
Where the beneficiary of a contractual institution is actually put into ex-
clusive possession (as opposed to having a defacto right of use), his rights
may plausibly be analogized to those of a buyer or an inter vivos donee
under a term. The contractual institute may not take conservatory measures
and his right is not retroactive. 204 For this reason, prior to the death, re-
vendication by the contractual heir in possession could only be posses-
sory.205 His future right of ownership under the marriage contract is too
remote to give rise to legal protection as such.
115. Scope ofRevendication ofPotential Owners with Custody – The variety
of legal relationships under which a potential owner may acquire physical
control of a corporeal moveable suggests that revendication to protect such
future rights will not have a uniform basis. Where contracts translative of
ownership are concerned, revendication will almost always be possessory,
although certain conditional owners having ajus ad rem may also have the
status to revendicate on a petitory basis. Other potential owners in posses-
sion will always be revendicating possession, except for heirs in provisional
possession who cannot revendicate on any basis in their own name. Rather,
they will claim only as administrators of the property of another. In other
words, where the title of the potential owner who exercises a present personal
right of use is subject to retroactive confirmation, the character of his status
to revendicate will not depend on the terms of his future ownership, but
rather on a close analysis of the terms of his present custody. 20 6
202The consequences of an anticipated renunciation, where the substitute may demand final
although the capital beneficiary may not: see Baril v.
ownership under art. 960 C.C.L.C. –
Trust Genral d Canada (1975), [1975] C.S. 892 –
are not in issue here.
203See, as concerns art. 962(2) C.C.L.C., Fortin v. Robichaud (1971), [1972] C.A. 140. For
the case of a trust, the recent case Trust Royal v. Moon (1981), [1982] C.S. 939 holds that a
lapse directly benefits residual heirs or legatees. Hence, the right t6 the capital is an eventual
proprietary right.
2 4See Bri~re, supra, note 19, no. 468.
20 5See Cantin Cumyn, supra, note 142, nos 68 and 84 for a characterization of the rights of
2060f the various hypotheses reviewed, therefore, only the revendication by conditional
contractual institutes as eventual only.
transferors and buyers under protected sales could plausibly be said to be petitory.
1986]
ENFORCING RIGHTS IN MOVEABLES
b. Potential Owners out of Possession
116. Potential Ownership and Future Detention – As in the cases where
potential ownership is coupled with present detention, there are several legal
relationships which imply that a person may assert potential ownership
without having detention. The most common examples arise in the context
of liberalities and successions, and involve quite particular legal institutions.
Yet in onerous contracts translative of ownership one again confronts not
only the possibility of a dissociation of title and custody, but also the pos-
sibility of potential rights evidenced by neither title nor custody. It is there-
fore helpful to consider these contractual variations prior to examining the
special situations arising in successions, substitutions and trusts.
In principle, one
117. Transferees Who Obtain Neither Title Nor Custody –
is here confronted with hypotheses arising from a contract of sale, even
though the analysis applies equally to exchanges, donations and loans for
consumption.20 7 A typical example of a contract of sale in which the buyer
obtains neither title nor custody would be that involving the brokerage of
shares or bonds purchased on margin. But, in any contract of sale where
transfer of title is deferred (by a term or a condition) or is merely promised,
prior to delivery the buyer has neither title nor custody.20 8 In most such
cases, were a third party wrongfully to obtain physical control of the objects
sold, it is difficult to see upon what basis the buyer could assert an action
in revendication. 20 9
There are however two cases where the buyer’s connection with the
object is somewhat less tenuous: conditional transfers and protected sales.210
In both instances the transferee acquires an immediate right of use from
his seller, as well as the right to claim possession and a right to see his future
ownership retroactively confirmed. These cases present the strongest claim
for permitting revendication from wrongfully holding third parties; but again,
it is difficult to see upon what basis revendication could be permitted.
2071n donations, of course, one must also consider special limitations on conditions which
may be stipulated. See arts 771(1) and 778-783 C.C.L.C., illustrating the maxim donner et
retenir ne vaut.
2081t might be argued that where risk of loss passes immediately to the buyer, he obtains a
species of detention under which his seller is holding as mandatary or depositary. Yet it is
difficult to see how mere detention can be materially dismembered prior to its actual consti-
tution.
209 0f course, as against the seller the buyer would have an action in specific performance;
against a third party, the buyer’s only recourse would be to bring an oblique action should his
seller refuse to do so.
210Suppose, for example, that a thief stole an automobile from a dealer after a conditional
sales agreement had been signed, but before delivery. Or suppose a thief were to steal an object
from a seller who had already passed “title” to an object belonging to another to his buyer.
McGILL LAW JOURNAL
[Vol. 32
118. Transferors under a Resolutory Condition – Most often a transferor
who brings an action to dissolve, resolve or revoke a contract will not have
physical custody of the corporeal object to which the contract relates. 21″
Prior to exercising a right of resolution, it is unclear whether the transferor
has sufficient interest in the property to revendicate from wrongfully holding
third parties. To isolate the issue here under consideration, let us consider
a seller who transfers title under a contractual resolutory condition not
relating to payment of the purchase price, who discovers a third party in
possession of the goods, and whose buyer is not in default under the con-
tract.212 Does the mere fact of his being able to assert a potential right of
resolution vest the former owner with a right to revendicate? While the
transferor can bring conservatory measures, including the action to interrupt
prescription, normally the transferor has no vocation to use. Revendication
prior to resolution is therefore impossible.213 The transferor here would be
revendicating neither possession nor title.
119. The Theory of the Substitution – The fiduciary substitution is a theo-
retical anomaly which seems to run contrary to several basic premises of
the law of property. Most importantly, the device seems simultaneously to
create two rights of ownership –
in the institute and in the substitute. Some
theorists see the rights of the institute of a substitution simply as those of
an owner subject to a resolutory condition, and analyse the substitution on
that basis.2 14 However, since any lapse in the substitution will benefit (in
the first instance) the institute and not the settlor or his heirs, the majority
of authors view the institute’s title as comprising a temporary and limited
right of ownership.215 During the substitution, therefore, the institute holds
as proprietor and may revendicate the property under the same conditions
as an ordinary owner.216 After the substitution has opened, however, and
assuming that the substitute has not repudiated under article 965 C.C.L.C.,
the institute loses all rights to the property and can no longer exercise the
right of revendication. 217
2 1’Normal cases would include contractual and legal resolution of a sale, as well as revocation
of donations and legacies.
212For cases of revendication following default, see above, no. 53.
213The Paulian and oblique actions might, however, lie in certain cases where the transferee
refuses to act.
des notaires du Qudbec, 1979) no. 631.
2′ 4See the discussion in R. Comtois, R~pertoire de droit: Les libralit~s (Montreal: Chambre
2 5See, for example, Cantin Cumyn, supra, note 142, nos 16-25 and 81-85.
2 6Art. 944 C.C.L.C. See also Minister of National Revenue v. Smith (1960), [1960] S.C.R.
477, 23 D.L.R. (2d) 689, for a confirmation of the institute’s status as a time-limited owner.
217There is one possible exception to this rule. If art. 959 C.C.L.C. incorporates the rules of
arts 581 and 582 C.C.L.C., which in turn incorporate the rule of art. 417 C.C.L.C. for both
moveables and immoveables –
then the institute who has made non-necessary improvements
which the substitute wishes to keep, will have a right of retention until he is paid. See Frenette,
1986]
ENFORCING RIGHTS IN MOVEABLES
120. Rights of the Substitute – The position of the substitute is more prob-
lematical. Once the substitution opens he is deemed owner and is held to
have received directly from the grantor, so that he takes the property free
and clear of any rights ceded by the institute.218 Thus, he may revendicate
corporeal moveables from the institute or from any third party acquirer,219
including a purchaser under a forced sale,220 subject to the exceptions of
articles 953, 953a and 959 C.C.L.C.
Prior to the opening of the substitution, the substitute has, at best, only
an eventual right.22′ Nevertheless, he is permitted certain prerogatives at-
taching to ownership suspended by condition. 222 He may undertake con-
servatory acts against the institute or third parties 223 and may, if the institute
abandons the property, revendicate on the basis that the substitution has
opened. 224 Finally, if the institute deteriorates the property, the substitute
may revendicate it under sequestration.225
The most difficult case arises where, prior to opening, a third party
wrongfully takes the property and the institute refuses or neglects to reven-
dicate. Since paragraph 734(1) C.C.P. provides that both institute and sub-
stitute may seize before judgment the property which they are entitled to
revendicate, it may be that the substitute may revendicate qua substitute,
prior to the opening of the substitution.226 There are however no cases in
supra, note 8, no. 26. He could, presumably then revendicate from third parties who wrongfully
dispossess him, even after the substitution has opened, but would be doing so as a retention
claimant.
218Art. 962 C.C.L.C. See also Fortin v. Robichaud (1971), [1972] C.A. 140; and arts 949 and
219Art. 949 C.C.L.C. See Rzasa v. Musial (1975), [1975] C.S. 1097.
220Art. 950 C.C.L.C. See also Saratoga Development Corp. v. Harben Investment Corp. (1966),
950 C.C.L.C.
[1969] C.S. 266.
22 Arts 956-957 C.C.L.C. The right cannot be transmitted, by will or otherwise, should he
die before the substitution opens in his favour. See Millette v. Millette (1968), [1969] B.R. 93.
222See Cantin Cumyn, supra, note 142, no. 84.
223Art. 956(2) C.CL.C. While the saisie-revendication is qualified as a conservatory attach-
ment, see IUgier, supra, note 1, nos 1-2: it is not clear whether ordinary revendication by a
substitute prior to opening is conservatory. Comtois, supra, note 214, no. 651 also considers
the action to interrupt prescription as being conservatory. Such would be the remedy against
a third party with whom the institute has contracted.
224This would follow by implication from art. 960 C.C.L.C.
225See art. 955 C.C.L.C.
2261n theory, this right of attachment could also be founded either on art. 955 C.C.L.C. as
a dissipation of the substituted property or on art. 960 C.C.L.C. as an implied anticipatory
opening. See, however, Cantin Cumyn, supra, note 142, nos 22 and 85, who insists that the
substitute has no real right prior to opening, and exercises these conservatory rights by excep-
tion. On this conception, art. 734(1) C.C.P. would apply only to cases where the substitute
revendicates from the institute either on the basis that the substitution has opened, or that the
court will declare it forfeited. Revendication from a third party as a substitute prior to the
opening would thus be inconceivable.
REVUE DE DROIT DE McGILL
[Vol. 32
which this issue has arisen, and to extrapolate from the conservatory at-
tachment in revendication given to a potential owner out of possession a
more general right to revendicate would seem to be a rather extraordinary
extension of the protection given to the titulary of a mere eventual right.227
121. Capital Beneficiaries of a Trust – While there is some authority that
the capital beneficiary of a trust acquires rights in the trust corpus at the
moment of its constitution, 228 the majority opinion is that his rights arise
only at the extinction of the trust 229 and that during its currency he has no
more than a potential right, not unlike that of the substitute. 230 In other
words, the right of the capital beneficiary out of possession to revendicate
should be analogous to that of the substitute.231 The connection of the capital
beneficiary to the trust corpus is effectively too remote to permit direct
judicial vindication. 232
In principle the regime relating to the
122. Ordinary Heirs and Legatees –
ordinary transmission of property upon death should not create practical
difficulties in allocating the right to revendicate, since ownership of property
is serial. 233 From the moment of death heirs and legatees may claim property
of the succession as owners, 234 by bringing either an action in revendication
or the action to recover an inheritance, as appropriate. 235 Thus, where the
legacy concerns a thing certain, the legatee by particular title may reven-
dicate the object even from the heir or general legatee. 236 Prior to death the
presumptive intestate heir and the legatee of a will which has been made
public have only eventual rights and have no status to revendicate. That
is, the presumptive heir has no patrimonial right and may not even contract
in respect of a future succession. 237
227This is, in most cases, a theoretical point, since art. 931 C.C.L.C. obliges the institute to
sell moveables, absent a specific exception in the deed.
228Thoreson v. National Trust Co. (1954), [1955] B.R. 298.
229See Cantin Cumyn, supra, note 142, no. 93 for a discussion.
2301bid., no. 94.
23 This is so, even though a renunciation by the income beneficiary will not directly benefit
the capital beneficiary. Moreover, the capital beneficiary of a trust does not appear, as such,
on the list of potential plaintiffs who may exercise an attachment in revendication under art.
734(1) C.C.P.
232The beneficiary has a personal action against the trustee and may conceivably, on that
account, exercise an oblique action. See the rather unsatisfactory discussion in Wave v. Hough-
ton (1976), [1976] C.S. 585, and Hand v. Auclair (1970), [1970] C.A. 253.
233For the special case of reappearances following an absence, see above, no. 55.
234Jean v. Gagnon (1944), [1944] S.C.R. 175, [1944] 3 D.L.R. 277.
23 5See A. Mayrand, Les successions ab intestat (Montreal: Presses de l’Universit6 de Montreal,
1971) nos 45-64. See also Lamontagne v. Boivin (1965), [1966] B.R. 295.
236See Comtois, supra, note 214, no. 282.
237Art. 1061 C.C.L.C., and compare arts 1579-1581 C.C.L.C. See also Pourcelet, supra, note
39 at 223-30.
1986]
ENFORCING RIGHTS IN MOVEABLES
123. Heirs Nominated by Contract of Marriage and Donationes Mortis Causa
– A slightly different situation arises in cases where by contract of marriage
an irrevocable donatio mortis causa has been established or where there has
been a contractual nomination of an heir. In the latter case the contractual
institution merely warrants the beneficiary’s status as heir. It gives no pres-
ent right in specific property.
In the former case, even though the right of the donee is certain, it is
neither a present nor a conditional right. The donee mortis causa is not
owner and may not revendicate as such;238 even where identified corporeal
property is given, and even if the donee is also vested with a defacto right
of use, he acquires no greater title than an ordinary presumptive heir.239
Where a donor gives mortis causa both present and future property, the
rights of the donee are just as aleatory.240 He may not bring even conserv-
atory measures in respect of present property, with the consequence that
his rights vis-d-vis most third parties are susceptible of being extinguished
under article 1027 C. C.L. C. That is, unlike the case of a substitute or of the
capital beneficiary of a trust, where the donor is immediately disseized, in
the donatio mortis causa the donee may retain possession so as to later
transfer both title and possession to a third party.241 On the other hand,
some commentators believe that where the donor refuses to act against third
parties the donee may bring a Paulian or oblique action.242
124. Scope of Revendication of Potential Owners out of Possession – One
confronts the limits of revendication in situations of potential ownership
where the titulary of a conditional or eventual right has no custody of the
object upon which his eventual right bears. While it is arguable, in cases
where a plaintiff asserts a potential ownership subject to retroactive con-
firmation, which implies a present personal right of use, that revendication
may be pursued even prior to the transferee’s obtaining custody, absent such
a present right of use, revendication (unlike conservatory measures) will be
refused to conditional owners out of possession. A similar result should
obtain in cases of substitutes and capital beneficiaries of trusts. Finally,
contractual institutes and donees mortis causa do not appear to have suf-
ficient rights even to sustain ordinary conservatory recourses. Like non-
owner spouses under matrimonial regimes, they have neither a present jus
238Beauchamp v. Verreault (1966), [1967] R.P. 39 (Prov. Ct).
239See above, no. 113.
240See Bri~re, supra, note 19, no. 468.
2411bid.
242 ee R. Comtois, Essai sur les donations par contrat de mariage (Montr6al: Recueil de
droit et de jurisprudence, 1968) at 118; see also J.E. Billette, Traite th~orique et pratique de
droit civil canadien: Donations et testaments, vol. 1 (Montral: n.p., 1933) no. 760.
46
McGILL LAW JOURNAL
[Vol. 32
ad rem nor a sufficiently localized future right to call forth in specie legal
protection. 243
4.
Other Holders of Corporeal Moveables
125. Relationships of Fact – The above three sections have illustrated the
extent to which the various types of legal rights which may be asserted in
or in respect of a corporeal moveable have been granted a degree of rec-
ognition and protection. It is now appropriate to consider if other purely
factual relationships with physical objects merit legal protection. For the
purposes of this study these situations may be seen to be one of three types.
First, some defacto holders of a corporeal moveable may actually be claim-
ing, in good or bad faith, a real right (generally of ownership) in the object.
Thus, finders, thieves and transferees of a thing belonging to another will
typically be asserting title and claiming to be possessing as proprietor. Sec-
ondly, some de facto holders will expressly be holding for another. These
include negotiorum gestores, recipients of a thing not due who became aware
of that fact, and creditors who inadvertantly seize the property of another.
Thirdly, some defacto relationships do not even imply the claim of deten-
tion. This ocdurs notably in familial situations, where spouses or future
intestate heirs make use of corporeal property over which they claim no
present, localized right. Each of these instances of a defacto right in physical
objects has a different legal consequence; each therefore requires separate
analysis. 244
126. Persons Asserting Title – The general legal regime applicable to persons
in possession of a corporeal moveable may be derived from articles 583,
586, 589, 592, 594 and 595 C.C.L.C. These articles describe not only the
means by which ownership may be acquired through legal mutation of title
(descent, contract, will or expropriation) but also original means of acquiring
ownership through creation or occupancy. In addition, they advert to de-
rived title which has a purely factual basis, namely accession and prescription.245
For the purposes of this analysis the factual relationship grounded in
accession is not problematic, since the object acquired by accession is subject
to a legal regime identical to that of the object to which it is attached. The
125-28.
rights in France.
243For a more detailed analysis of these defacto rights, see above, no. 103, and below, nos
244See Marty & Raynaud, supra, note 170, nos 410-17 for a brief discussion of these defacto
2451n France a distinction is drawn between res communes, res nullius, and res derelicta, on
the one hand, where the person is taking custody of an ownerless object, and treasure or derelict
property, on the other, where an owner presumably has lost (but not abandoned) his property.
Since in the former case the occupier becomes owner by the simple act of occupation, this is
no longer a question of purely factual relationship. It will therefore not be examined here.
1986]
ENFORCING RIGHTS IN MOVEABLES
case of the usucaptor, however, is more complex. The three classic examples
of intending usucaptors who have only a factual relationship with an object
are finders, thieves and transferees of the thing belonging to another.
The finder of a lost or stolen corporeal moveable may be claiming either
of two statuses. If he takes possession as owner of an object he has found,
he should be able to invoke paragraph 2268(1) C.C.L.C. and assert an action
in revendication against any individual who wrongfully dispossesses him.
Here the rule of paragraph 2268(1) C.C.L.C. protects peaceful possession
during the thirty year period leading up to usucaption, against all but the
true owner.246 By contrast, where the finder purports to be holding for
another, he can no longer be said to have possesssion, but is rather a mere
custodian –
and his right to revendicate against
wrongfully holding third parties should be determined on that basis.
a negotiorum gestor –
A regime not dissimilar to that of the finder will arise when the good
faith purchaser of an object belonging to another in a non-protected sale
discovers his true status.247 Prior to acquiring title by prescription of three
years, he cannot be considered as owner. But he may invoke the rule of
paragraph 2268(1) C.C.L.C. and thereby revendicate against all but the true
owner, on the basis of his prior possession as proprietor, just like any other
intending usucaptor. Insofar as protected sales are concerned, the position
in Quebec differs from that in France.248 In Quebec, good faith acquisition
in a protected sale does not immediately transfer title to the buyer. Thus,
revendication by the transferee can only be grounded in his prior possession,
as in a non-protected sale. However, by contrast with the regime applicable
to non-protected sales, the buyer may, in certain cases, reclaim the object
from the true owner who regains custody of it. If the sale were governed by
paragraph 2268(3) C.C.L.C., revendication against the owner would always
be possible: since the owner cannot directly revendicate from the buyer, he
ought not to be able to resist revendication by the buyer if he should later
obtain possession. If paragraph 2268(4) C.C.L.C. is applicable the contrary
result is indicated: the good faith acquirer has no right to revendicate from
the owner, since he is obliged to disgorge possession upon receipt of the
246Because he has no title the finder will almost always be in bad faith. Only if he has genuine
reasons for believing that the object is res derelicta could he claim a good faith possession.
Moreover, there is some question whether he ever has “colour of right” if he does not have
such a belief. If not, some courts have characterised his title as that of a thief. See Mazeaud,
supra, note 163, no. 1632; and’see below, nos 149-51.
abandoned object. Macdonald, “Revendication: Part One,” supra, note 136, no. 11.
24 7This would be analogous to the finder who genuinely believes he is appropriating an
248See, for the position in France, Bouloc, supra, note 1, nos 147-53; see also Ortscheidt,
supra, note 1, nos 6-12 and 81-88.
REVUE DE DROIT DE McGILL
[Vol. 32
price he has paid. Should the owner refuse payment, however, he should
be able to revendicate as a wrongfully dispossessed retention claimant.249
The thief, like the finder, may always plead the presumption of article
2194 and paragraph 2268(1) C.C.L.C. in support of his title. Thus, a thief
who has lost possession may revendicate as owner until his true status is
revealed. However, because he is legally unable to acquire ownership by
prescription, he can never resist an action in revendication by the lawful
owner, as may the finder who prescribes. 250 It would also appear, given the
presumption of paragraph 2268(1) C.C.L.C., that the thief whose true title
is not revealed may even assert his prior possession as thief to ground an
action in revendication against a third party who wrongfully holds the cor-
poreal moveable he has stolen.25′ However, should the defendant in reven-
dication expose the thief’s true title, it is unlikely that a court would order
disgorgement unless the defendant himself were also a thief. If the defendant
were a finder, the court would probably protect his future right to prescribe
(assuming that he were not a clandestine holder) in preference to the thief
who can never prescribe. If the defendant were also shown to be a thief,
the court would probably adjudicate the property to the public curator,
refusing to prefer one thief over another.
In all the above hypotheses –
finder, good faith purchaser, thief –
it
is the vocation to ownership (possession as proprietor) which is the basis
of revendication, not simply the fact of prior possession. 252 For this reason,
once the thief’s true title is revealed, a title which means under paragraph
2268(6) CC.L.C. that he never has the vocation to ownership, the court
will not enforce revendication.
127. Persons Not Asserting Title – The legal situation of the finder who
does not claim title is much less complicated. Here his finding is simply a
particular instance of a negotiorum gestio.253 The finder holds the corporeal
moveable in the name of, and for the benefit of, another, in much the same
way as a mandatary would. This is the precise legal characterization of the
role of the gestor.254 Wherever, as a purely factual matter, a person manages
249See above, nos 81 and 112.
250Art. 2268(6) C.C.L.C. A like result is provided for in the cases of violent or clandestine
holders, as long as the defect in possession remains. See also arts 2197-2198 C.C.L.C.
251See Ortscheidt, supra, note 1, no. 100.
2521n other words the fact of a simple use of an object, as in a marriage situation, cannot be
found “possession as proprietor” sufficient for revendication.
253Finding is not an example of a necessary deposit. See arts 1813-1816 C.C.L.C. Both
Mignault, supra, note 85 at 162-63, and Roch & Par6, supra, note 130 at 288-89 consider a
finder to be a negotiorum gestor since necessary deposit is a contract requiring the depositor’s
consent.
254See Baudouin, supra, note 16, no. 380.
1986]
ENFORCING RIGHTS IN MOVEABLES
the business of another (including the preservation of another’s corporeal
moveable property) there is a negotiorum gestio.2 55
The Code analogizes the gestor, for purposes of elaborating his duties,
to a mandatary. First, he must act as a prudent administrator under article
1045 C. C.L. C.; secondly, paragraph 1043(2) C. C.L. C. imposes on the gestor
all the obligations of an express mandate. When combined with the obli-
gation imposed by an paragraph 1043(1) C.C.L.C. to “take charge of the
accessories of such business”, these duties are probably sufficient to sustain
the gestor’s right to revendicate against third parties on the same footing as
that of a mandatary. 256
Where a creditor inadvertently seizes property belonging to a third party
and later discovers the fact, he also will be held to the obligation of a
negotiorum gestor. The guardian, of course, is his mandatary and is seized
as a depositary of the property of the true owner. As such, he should be
able to revendicate from any person who wrongfully takes the goods from
him while he is guardian. 257
By contrast with the negotiorum gestor, the person who is in reception
of a thing not due 258 does not seem to have as strong a claim to revendicate
the thing from a third party who wrongfully dispossesses him. This is be-
cause, if he is in good faith, he will assume he is owner; the Code, therefore,
would not require him to act as a prudent administrator. Nevertheless,
article 1047 C.C.L.C. imposes an obligation upon recipients to restore the
object; moreover, under articles 1049-1051 C.C.L.C. the recipient who dis-
covers the mistake must return the thing in kind. Even if he has received
the thing in good faith, he has a duty to restore it.259 Thus, like the gestor,
once his true status is revealed he has the same obligation of care and return
as the depositary, and should be permitted to revendicate in the same man-
ner.
128. Scope of Revendication of Holders Asserting a Merely Factual Rela-
tionship with a Corporeal Moveable – Paradoxically, the true foundation
of the right to revendicate appears most clearly in situations where the
relationship between person and object has a factual rather than a legal
foundation. In permitting finders and buyers under protected sales to re-
vendicate, courts are implicitly recognizing that the protection of rights in
corporeal moveables must extend to the protection of any peaceful posses-
255See A. Mayrand, Des quasi-contrats et de l’action de in rem verso (Association du jeune
Barreau, Montral, 1939) [unpublished].
2 56See above, no. 95.
257See the discussion in Perlman v. J.J. Joubert Lte (1954), [1954] B.R. 496 as concerns the
true owner’s rights. See also Franey v. Costello, supra, note 78 at 167.
258Arts 1047-52 C.C.L.C.
259See generally, Baudouin, supra, note 16, nos 401-09.
McGILL LAW JOURNAL
[Vol. 32
sion whose ultimate consequence is a proprietary right. Further, in per-
mitting negotiorum gestores and recipients of a thing not due to revendicate,
they are also implicitly recognizing that even non-proprietary claims over
corporeal moveables are worthy of vindication when their ultimate con-
sequence is to expose their titulary to an obligation of care, preservation
and return. Only casual defacto users, such as various non-owner members
of a family, do not have a factual connection with a corporeal moveable
intense enough to sustain an action in revendication against a wrongfully
holding third party. In this respect the regime of de facto rights parallels
that of personal rights: the most problematic case for permitting revendi-
cation is where the de facto holder asserts a tenuous connection with an
object.
5.
Towards a Theory of Plaintiffs in Revendication
129. Restating the Issue –
If one were to adhere strictly to the classical
thesis, the question “who may bring the action in revendication?” could be
answered easily. According to Mazeaud, “[l’]action qui sanctionne le droit
de propriet6, est laction en revendication (rei vindicatio, r6clamation de la
chose). Pour triompher, le demandeur P laction en revendication doit 6tablir
son droit de proprit”, 260 which is to say: ‘Taction en revendication, stricto
sensu, tout en permettant de recouvrir la possession, implique la n~cessit6
pour le demandeur de prouver son droit de propriet6.”‘261
Classical theory attaches the action not to the titulary of specific rights
(or even to a relationship of fact such as “possession as proprietor”), but
to the right of ownership itself. In the words of Mazeaud: “[L]e propri6taire
perd alors l’action en revendication en m~me temps que le droit de propriet6;
mais cette action ne disparait pas; elle change de titulaire avec le droit de
propri6t6 dont elle n’est que la mise en oeuvre.” 262 For this reason, the
action historically has been denied “a toute personne qui ne peut pas in-
voquer un droit r6el muni d’un droit de suite sur le meuble, notamment
au cr~ancier dont le privilege ne repose pas sur une ide de gage, au com-
modataire, locataire qui a perdu la dtention de l’objet. ‘ 263
But such assertions fundamentally contradict the practical realities of
how the action would be brought today. The action in revendication in-
variably is coupled with the conservatory measure known as the attachment
in revendication. In view of the procedural purposes of the attachment
(simply to freeze corporeal property pending trial), courts seem less rigorous
26See Mazeaud, supra, note 163 at 318, no. 1627.
26 1See Bouloc, supra, note 1, no. 4.
262See Mazeaud, supra, note 163 at 318-19, no. 1628.
26 3See Ikgier, supra, note 1, no. 34, quoting E. Glasson, Precis theorique et pratique de
procedure generale, 2d ed. by A. Tissier (Paris: L.G.D.J., 1908).
1986]
ENFORCING RIGHTS IN MOVEABLES
in policing strictly the categories of rights-holders who may bring it. Inev-
itably, therefore, a certain slippage between the action and the attachment
has occurred. As some now note: “L’action en revendication est largement
ouverte. Notamment il n’est pas nrcessaire que le demandeur 6tablisse son
droit de proprirt6; il suffit qu’il prouve par tous moyens que la chose &tait
entre ses mains au moment de la perte ou vol. ‘ 264
To restate the issue, if the rule of paragraph 2279(1) C.N. or paragraph
2268(1) C.C.L.C. is understood as a presumption of law, it would appear
that any person who at one time had possession (whether or not that person
were also responsible for the care and return of an object) could exercise
the action in revendication. Certain French authors now simply claim that
the action is open to those who have a personal right (jus ad rem) implying
only detention, so long as they have an interest in the conservation of the
thing.265
130. Revendicating Custody? –
In response to modem developments, some
theorists have attempted to salvage the classical position by modifying it
at its margins. These theorists suggest that today the action is called upon
to serve a petitory and possessory function. Stricto sensu, the action requires
the plaintiff to prove his ownership (or more generally any principal real
right, any accessory real right and any privilege which can be analogized to
the possessory pledge); lato sensu, and by exception, the action may also
serve in many cases simply to vindicate a prior possession where the cus-
todian (such as a depositary) assumes responsibility for the care and pres-
ervation of the thing.
That is, to maintain the major axiom that revendication is the reflection
of a real right, some jurists also deduce a minor possessory corollary. But
as the above review of various potential plaintiffs in revendication has
shown, this minor “possessory corollary” is called in aid by litigants in a
modem commercial economy quite as much as the “petitory axiom”. What
is more, only by fictionalizing the landlord’s privilege as a pledge, by fic-
tionalizing commercial and documentary pledges as possessory, and by fic-
tionalizing the unpaid seller’s right of revendication as a vestige of an
historical ownership right can even the “petitory axiom” be salvaged.
In view of these fictions, one might just as well say that revendication
is no less than the action by which the titulary of a present or reversionary
right to exercise a pouvoir materiel over a corporeal moveable, or any person
acting for, and responsible to, such a titulary, may vindicate that pouvoir
materiel against third parties wrongfully holding an object. In other words,
264 0rtscheidt, supra, note 1 at 14.
265See Planiol & Ripert, supra, note 38, no. 391. The first to make such a claim were C.
Aubry & C. Rau, Droit civilfrancais, t. 3, 4th ed. (Paris: L.G.D.J., 1873) nos 183 and 256.
REVUE DE DROIT DE McGILL
[Vol. 32
the relationship being vindicated seems at bottom to be factual rather than
legal.
If indeed the action can be seen
131. Revendicating Objects, Not Rights –
as having a factual basis, the question at issue is neither “what legal rights
in or in respect of a corporeal moveable will support revendication?”, nor
“is revendication a possessory as well as a petitory recourse?” Rather the
proper way of asking “who may revendicate?” is to ask “who has a right
to claim immediate physical control (or a pouvoir materiel) over the ob-
ject?” 266 This is not to say that the action in revendication is simply a pale
imitation of the immoveable possessory actions (namely, la complainte, la
dtnonciation de nouvel oeuvre, Faction en r~integrande)267 and the common
law proprietary torts of conversion and trespass. Once courts take seriously
the protection of peaceful “possession as proprietor” which is implied by
paragraph 2268(1) C.C.L.C., it is difficult to deny the same protection to
an individual such as a lessee, who behaves towards others exactly as pos-
sessor even though he only has detention of an object.268 Moreover, in
proposing a rationalization of “administration of the property of another”
the Draft Civil Code recognizes that all manner of rights (real, personal,
potential and defacto) can imply present detention on account of another.269
It is therefore no surprise that simple “present detention” impells courts to
develop or adapt recourses to protect such detention directly.
132. Conclusion –
In tracking in detail potential plaintiffs in revendication
according to classical theory, and in examining judicial responses to modem
commercial practice, one discovers that the action in revendication (rightly
or wrongly) has been made available to titularies of rights other than real
rights on the basis of some notion of the intensity of the connection that a
plaintiff may claim with a corporeal object. It is suggested that this intensity
may be measured along three axes in four degrees of intensity.
The axes reflect, first, a measurement of jouissance, secondly a meas-
urement of economic value, and thirdly a measurement of physical control.
Ownership is central to all three axes, and the measure of intensity for all
three progresses through real rights and personal rights to simple de facto
266Not surprisingly, other legal systems cast the issue similarly. See J.G. Fleming, The Law
of Torts, 6th ed. (Sydney: Law Book, 1983) at 61-63.
& Raynaud, supra, note 170, nos 205-29.
267For discussion, see Mazeaud, supra, note 163, nos 1457-68, especially no. 1463ff.; Marty
2681n France, developments in this direction, concerning immoveables, date from the turn
of the century. They are now confirmed by the Loi no 75-596 du 9juillet 1975, amending art.
2282 C.N., which provides that possessory actions are open to “ceux qui possdent ou d6tien-
nent paisiblement”. That is, except as against their author in title, mere holders may now bring
possessory actions.
269See Macdonald, “Revendication: Part One,” supra, note 136, n. 374.
1986]
ENFORCING RIGHTS IN MOVEABLES
control. These axes reflect basic microeconomic concepts relating to use
value and capital value of corporeal property. But their implications for
deciding which plaintiffs who should be permitted to revendicate can only
be derived once the limitations of the action and its procedural requirements
have been assessed. To these tasks this essay now turns.
C. Limitations on the Action in Revendication
133. Revendication in Principle – Analyses of revendication of corporeal
moveables in France typically commence with the following statement of
principle: “en r~gle g~n6rale la revendication des meubles est refusee … -.270
Notwithstanding that the action in revendication by an owner of moveable
property is imprescriptible, 271 over the vast majority of circumstances in
France the underlying right to revendicate is denied or partly denied to an
owner who has lost possession of a corporeal moveable. In other words,
while the action in revendication is as constant as the right of ownership,
in most cases the dispossessed owner will forfeit his action against certain
acquirers because he will have lost his status as owner.272
The situation in Quebec, however, is quite otherwise. To begin with,
the presumption of article 2268(1) C.C.L.C. has a far narrower scope than
that of article 2279 C.N 273 Moreover, Quebec courts have given a liberal
interpretation to the term “stolen” in paragraph 2268(4) C.C.L.C., with the
result that there remain few cases where paragraph 2268(3) C.C.L.C. actually
would prevent revendication.2 74 Finally, in Quebec the rudiments of a re-
gistry system for various security devices have muted the conflation of title
and possession which inheres in French law.2 75 Of course, as in France, the
270See Bouloc, supra, note 1, no. 100.
27’Even though all actions are prescribed by thirty years unless the law provides otherwise,
under art. 2242 C.C.L.C., because ownership cannot be lost by non-usage the action in reven-
dication should always remain available. See Bouloc, supra, note 1, no. 5; A. Weill, E Terr6
& P. Simler, Droit civil: Les biens, 3d ed. (Paris: Dalloz, 1985) no. 306. But see, contra, Ortsch-
eidt, supra, note 1, no. 74. See also Y. Caron, “La vente et le nantissement de la chose mobilire
d’autrui: Deuxi~me partie” (1977) 23 McGill L.J. 380 at 417-18. Nevertheless, moveables may
be abandoned: see Marty & Raynaud, supra, note 170, nos 414-17.
2720f course, where revendication is sought by one of the other plaintiffs mentioned (i.e. a
non-owner), the action in revendication may be unavailable where the right on which the action
is based has been extinguished by prescription. See, e.g., arts 479(4) and 488(2) C.C.L.C.
273Macdonald, “Revendication: Part One”, supra, note 136, nos 12-14.
274See Y. Caron, “La vente et le nantissement de la chose mobili~re d’autrui: Premiere partie”
(1977) 23 McGill L.J. I at 26-38; P. Martineau, La prescription (Montreal: Presses de l’Uni-
versit6 de Montreal, 1977) nos 156-58.
275See, e.g., arts 1979b and 1979g C.C.L.C.; Bank Act, supra, note 13, s. 178(3); Bills of
Lading Act, supra, note 13, s. 52; and Special Corporate Powers Act, s. 29, supra, note 4.
McGILL LAW JOURNAL
[Vol. 32
action in revendication is imprescriptible; 276 but, by contrast with the French
position, one must begin in Quebec with the premise that subject to limi-
tations an owner may always revendicate.
134. Loss of the Right to Revendicate – Notwithstanding the general prin-
ciple, however, there are four main types of situations where the right to
revendicate may be lost or restricted. First, and most importantly, the person
revendicating may no longer have the right which he claims because another
person has acquired it. In the law of corporeal moveables this typically
occurs through a voluntary mutation of title, in which case revendication
by the transferor is usually not in issue.277 But the right may also be lost
involuntarily, either through a forced mutation of title or through a material
transformation of the object. Examples of the former are the following cases:
partition (articles 689-753 C.C.L.C.), judicial sales (article 1490 and para-
graph 2268(5) C.C.L.C.), forced sales (articles 1585-1591 C.C.L.C.), licita-
tion (articles 1562-1563 C. C.L.C.), acquisitive prescription (article 2242 and
paragraph 2268(2) C.C.L.C.), sales by a seller in possession (paragraph 1027(2)
C.C.L.C.), informal consumer sales (Consumer Protection Act, section 135)
and illegal conditions in wills (article 760 C. C.L. C.). Examples of the latter
(the loss of right through material transformation of the object) include
immobilization by nature (articles 376-378 and 416 C.C.L.C.), incorpo-
realization, subrogation and accession to moveables (articles 429-440
C.C.L.C.).
Secondly, the action in revendication may no longer be brought when
the substantive right (other than ownership) supporting the revendication
has been lost or abandoned, even if no third party has acquired it. Of course,
this is trivially true of all rights. For example, a usufructuary (or lessee, or
depositary) whose usufruct (or lease or deposit) expires, is cancelled, or is
extinguished by prescription, can no longer revendicate in that capacity.
Here again, revendication by the titulary of the right usually is not in issue. 278
But this cause has a particular bearing on security contracts including no-
tably the claims of pledgees, documentary pledgees, unpaid sellers, retention
claimants, conditional and promisee purchasers and transferors under res-
olutory condition. It also includes the situation where the titulary of a se-
curity contractually (or by effect of law) renounces his rights vis-&-vis certain
defendants (for example under articles 462, 1029, 1058 and 1975 C.C.L.C.).
276The proof of the ultimate imprescriptability of the action lies, however, in art 2268(6)
C.C.L.C., which prevents a thiefor his universal heirs ever acquiring title. If, after fifty or even
one hundred years, the owner should prove that the holder of his moveable is the thief who
stole it (or his universal heir), he would not be debarred from revendicating.
277The transferor may, however, seek to have the transfer set aside or resolved for one reason
or another, and thus seek to revendicate. But in such cases, the revendication is consequent
upon reestablishing ownership. There is no conflict over the legal cause of the transfer.
278Even if the right has expired, the usufructuary assumes an obligation of care and return,
and may revendicate from wrongfully holding third parties in order to fulfill this latter obli-
gation.
1986]
ENFORCING RIGHTS IN MOVEABLES
Thirdly, there are cases where the action in revendication is lost or
conditioned even if the underlying right is not.279 These include common
ownership by accession (articles 436, 437 and 439 C.C.L.C.), protected sales
and pledges (articles 1488 and 1966a, and paragraph 2268(3) C.C.L.C.),
partially protected sales and pledges (articles 1489 and 1966a, and paragraph
2268(4) C.C.L.C.), the sale of automobiles (Highway Code, section 22);
ordinary consumer sales (Consumer Protection Act, sections 132-149), cer-
tain rights of retention (Consumer Protection Act, sections 179 and 187) and
most statutory transfers.
Fourthly, certain claimants may be deprived of the action in reven-
dication where goods are subject to a security or are under seizure. Typical
cases include titularies of rights of retention and pledgees in possession. The
latter cases include ordinary seizures against all but owners, judicial seizures
by a landlord for his privilege (article 1639 C.C.L.C.) and non-judicial sei-
zures by a documentary pledgee, inventory transferee, trustee for bond-
holders or a bank. In each situation one confronts the major difficulty flowing
from a multiplication of plaintiffs in revendication: which plaintiff’s right
should prevail?
135. Scope ofRevendication – Under all of the above hypotheses the action
in revendication may be lost or postponed against certain defendants. But
given the possible multiplicity of plaintiffs in revendication, it is not at all
clear when the loss of an owner’s right to revendicate operates to wash title.
Hence it is also necessary to determine, in those situations where an owner’s
rights are lost, which other rights sustaining revendication will also be elim-
inated. There are two possibilities: either title may be washed completely,
subject to exception, or the owner may be deprived of the action in reven-
dication with certain other claimants being able to continue to assert it.
Deciding this further question, which effectively defines the scope of each
limitation on revendication, will be the object of the last section of this
Part.
1.
A Third Party Has Acquired the Object
136. Material and Legal Transformation – The action in revendication
only protects ownership and other rights in objects indirectly; it vindicates
rights by allocating physical control. Thus, where a corporeal moveable loses
its identity as a separate object, the action to recover it is extinguished along
with the owner’s rights. In such cases, a material transformation of the object
leads to a legal mutation of title.
279The action in revendication as such survives, to protect the true owner’s rights from
wrongful interference by most third parties; it simply cannot be exercised against certain hold-
ers.
REVUE DE DROIT DE McGILL
[Vol. 32
But an object may also be acquired simply through a legal mutation of
title. Most often this will occur consensually (by the effect of contracts and
gifts), in a manner deemed consensual (by descent or by will), or by statutory
transfer (in bankruptcy or the winding-up of companies), although it may
result by operation of law. The effect of consensual dispositions and sta-
tutory transfers has already been considered. 280 It remains, therefore, to
examine the consequences of material transformation and involuntary legal
mutation on an owner’s right to revendicate.
a. Material Transformation
137. Loss of Identity and Loss of Individuality – The law establishes two
distinct means by which an object may be materially transformed. First of
all, a corporeal moveable may cease to be a moveable. This occurs notably
when it becomes immobilized as a consequence of the rules of accession to
immoveables, through its attachment to, or incorporation into, an im-
moveable. But a corporeal moveable may also cease to be corporeal. For
example, wood may be burned to produce electricity or steam; goods may
be destroyed giving rise to an insurance claim; or a corporeal negotiable
instrument may become simply a book entry on a bank ledger. In each of
these cases it is important to determine whether the object has lost its
identity as a corporeal moveable.
A corporeal moveable may also lose its individuality even while re-
maining a corporeal moveable. Hops and barley remain corporeal move-
ables as beer, but they have lost their identity; mixed inventories are no
longer individuated; an automobile chassis remains a corporeal moveable
even if no longer separable from the vehicle of which it is a part. It is
necessary, therefore, to examine how both loss of identity and loss of in-
dividuality affect the right of revendication.
The Object Has Become Immobilized
i.
138. Immobilization of Moveables – Of the various means by which cor-
poreal moveable property may be immobilized, three are of importance
here: immobilization by determination of law, immobilization by destina-
tion and immobilization by nature.
There are essentially two types of immobilization by determination of
law: public policy immobilization under article 382 C.C.L.C. and fictional
immobilization of temporary moveables under paragraph 386(2) C.C.L.C.
Article 382 C.C.L.C. declares certain sums due to minors or children and
the capital of constituted rents to be immoveable. Presumably, were these
28 See Macdonald, “Revendication: Part One”, supra, note 136, nos 51-55. See also above,
nos 105-23.
1986]
ENFORCING RIGHTS IN MOVEABLES
sums evidenced in a corporeal instrument and were the instrument to be
lost, revendication would not be possible other than by petitory action under
article 771 C.C.P. Conversely, under paragraph 386(1) C.C.L.C., temporary
moveables could be revendicated as moveables. However, were these move-
ables to fall under the conditions of paragraph 386(2) C.C.L.C. they could
be claimed only under article 771 C.C.P. In each of these cases, however,
the material transformation of legal status usually does not also produce an
involuntary mutation of ownership, so that the owner’s title to claim phys-
ical control of his property is not compromised. 28′
Immobilization, by nature or by destination, however, is not simply
notional: in both cases, corporeal objects are affixed to an immoveable.
Immobilization by destination under articles 379-380 C.C.L.C. is rarely
problematic (for purposes of revendication) since the Code requires an iden-
tity between owner of land and owner of moveable.282 In other words, like
immobilization by determination of law, immobilization by destination does
not itself effect a mutation of an owner’s title. For this reason, sellers will
frequently use the conditional or installment sale to protect their right to
revendicate corporeal moveables they have sold. Thus, even if the object
sold has the vocation to become immobilized by destination (for example,
a telephone switchboard), the conditional sale prevents that immobilization
until the buyer becomes owner.283 It follows that only immobilization by
nature will ever produce an involuntary mutation of title.
139. Immobilization by Nature – Where construction materials, such as
bricks and lumber, are completely incorporated into an immoveable, they
lose their characteristics as moveables and become immoveable by nature.
Moreover, the courts have held that certain other items, such as furnaces
and elevators, which are indispensable to the completion of a building, are
immoveable by nature, notwithstanding that they may retain their individ-
uality as objects. 284 In both cases immobilization results, whether or not
the owner of the immoveable is also owner of the immobilized moveable.
As a result, the material transformation from moveable to immoveable
by nature may often produce a legal mutation of title, which automatically
281Problems can occur in respect of other rights giving rise to an action in revendication.
Imagine giving a child, under the conditions of art. 382 C.C.L.C., a bearer bond already
impressed with a perfected pledge. Would the immobilization extinguish the pledge? Similarly,
it is worth asking whether the temporary mobilization under art. 386(2) C.C.L.C. would also
affect immoveable rights of emphyteusis, usufruct, habitation, hypothec, etc.
282See Foyer du Cadeau Inc. v. Imperial Enterprises Inc. (1967), [1968] C.S. 456 and Banque
fJd~rale de developpement v. Champlain Air climatis6 et Chauffage Lt~e (1980), [1980] C.A.
12.283Immobilization by destination will, however, affect other rights such as those of unpaid
vendors, commercial pledgees, etc. See below, no. 187.
284Horn Elevator Ltd v. Domaine d’Iberville Lt~e (1971), [1972] C.A. 403.
McGILL LAW JOURNAL
[Vol. 32
extinguishes a prior owner’s action in revendication. 285 This immobilization
also extinguishes the rights of all persons deriving rights from the prior
owner.286 Of course, the person effecting the immobilization may in certain
cases be liable in damages to the owner or other titulary of the right to
revendicate. 287
ii. The Object Has Become Incorporeal
140. Incorporeal Rights and Subrogation – Where a corporeal moveable
has been destroyed, the owner obviously may no longer revendicate. But
in certain cases the destruction gives rise directly to incorporeal property.288
Through the application of notions of subrogation rtelle the prior owner
retains rights in the incorporeal. 289But these rights must be vindicated by
remedies appropriate to incorporeals, and not by the action in revendication.
Only if by a further subrogation the incorporeal again becomes corporeal
(for example, insurance money purchasing a replacement object) may the
original owner revendicate. 290 In these cases, however, the loss of identity
as corporeal property usually does not effect a mutation of title.291
2850f course, a special regime is established with respect to construction projects, so that the
seller may exercise a privileged claim for the price of materials. See art. 2013e C.C.L.C. Sim-
ilarly, if by the rules of subrogation, rights in a moveable (fertilizer) which becomes immobilized
(crops) and remobilized (harvested crops) are maintained, revendication by the titulary is
possible after remobilization. For an example of statutory subrogation, see ss 178(l)(c)-(j) and
178(3) of the Bank Act, supra, note 13, which transform the bank’s rights in fertilizer into a
right in crops.
286But, for an exception, see ss 178(l)(g)-(h) of the Bank Act, supra, note 13, which preserve
287See arts 416-418 C.C.L.C.
288A distinction is being made between incorporeal things and incorporeal rights. An owner
whose object is expropriated and who is left with a usufruct has only an incorporeal right. But
the object upon which that right bears remains a corporeal moveable. For a discussion of the
frontiers of corporeal moveables, see Caron, supra, note 274 at 22-25; and Martineau, supra,
note 274, no. 154.
the bank’s claim even when wiring is immobilized by nature. See below, no.187.
289The question of the extent to which the doctrine of subrogation rtelle will permit an
owner’s claim to be traced into an incorporeal is of most interest where a creditor with an
accessory real right seeks to assert his security in the proceeds of an ordinary course disposition
of secured collateral. For a discussion see R. Macdonald, “Inventory Financing in Quebec After
Bill 97″(1984) 9 Can. Bus. L.J. 153 at 159-62.
290That is, assuming ownership by subrogation can be proved, it is immaterial that a present
corporeal moveable was formerly an incorporeal. The action in revendication is directed to
the recovery of the present object.
291The only plausible example where transformation from corporeal to incorporeal would
automatically produce a mutation of ownership would arise in the case of a sale of future book
debts under art. 1571d C.C.L.C. where the debts arise from the sale of an object. Here the
owner sells a corporeal moveable, generating an incorporeal (a book debt) which he has pre-
viously sold. Hence, he cannot claim a right to the incorporeal, and the transformation from
corporeal to incorporeal actually effects a mutation of title.
1986]
ENFORCING RIGHTS IN MOVEABLES
iii. The Object Has Become Part ofAnother by Accession
141. Accessio, Specifcatio, Confusio – A material transformation of a cor-
poreal moveable implying legal mutation of title can also occur by operation
of the rules of accession. In other words, title is sometimes transferred as
a consequence of the loss of individuality of an object. This may occur
through the incorporation of one object into another, through the transfor-
mation of an object by manufacture, through the combination of objects
owned by several persons or through confusion of inventories. Article 429ff.
C.C.L.C. elaborate the basic rules governing accession to moveables, in-
cluding forced transfers of title, subject to contractual undertakings between
the parties to the contrary.
142. Ordinary Accession – When two objects are united, the owner of the
object which is the accessory loses his right of ownership, notwithstanding
that the objects may be separated. 292 However, should the accessory greatly
exceed the principal object in value, the owner of the less valuable object
loses his right of ownership to the owner of the more valuable part.293
Finally, if neither is accessory and both are of equal value, the bulkier is
deemed principal.294 In each of these cases the Code provides for a forced
mutation of title and the owner who loses title also loses the action in
revendication.
In cases of confusion, either through adjuncture 295 or
143. Confusion –
admixture,296 one or more owners may also be expropriated. Where one
owner’s material greatly exceeds the quantity and price of any of the other
owners’ materials, the first may claim ownership of the whole object or
whole inventory. The other owners lose any claim to ownership, 297 subject
to the right of an innocent owner to demand separation, if conveniently
possible. With the loss of ownership these other owners also lose their right
to revendicate. 298
144. Specification – Articles 435 and 436 C.C.L.C. set out the principles
governing the attribution of ownership of corporeals being manufactured.
In some cases, specification will lead to a transfer of title to a corporeal
moveable. Where an owner’s object is transformed by an artisan, and the
attachment of an aluminum sail mast to a fibreglass sailboat hull.
292Arts 430 and 431 C.C.L.C. A good example of such accession would be the case of the
293Art. 432 C.C.L.C. Thus, a single diamond in a large silver necklace would be deemed the
294Art. 433 C.C.L.C. For example, a bulkier engine would be considered principal over a
295Art. 437 C.C.L.C. An upholstered chair would be an example of the adjuncture of objects.
296Admixture covers the case of mixed inventories, which are dealt with in a fashion similiar
297Art 438 C.C.L.C.; that is, even assuming that a conditional seller were able to establish
298This is subject to the case described in art. 437(2) C.C.L.C. See below, no. 168.
that he had retained title to part of the inventory, he would still be expropriated.
transmission that was smaller, but equal in value.
principal.
to adjuncture.
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workmanship greatly exceeds the value of the materials, the right to reven-
dicate will be lost (along with title) if the workman chooses to keep the
object.299 A similar rule applies in cases where the artisan also supplies some
of the materials used in the manufacturing process.300
145. Consequences ofAccession to Moieables –
In each of the above cases,
where one party loses the right of ownership (and with it the right to re-
vendicate) he may claim both the value of his object 301 and, if the trans-
formation was without his consent, damages as well. 30 2 In certain cases of
adjuncture or admixture, however, ownership is deemed common and either
party may demand that the object be disposed of by licitation. 30 3 Finally,
an exceptional regime of restitution is established where materials are used
without an owner’s consent to make an object of a different description: the
owner is not expropriated but may claim, in preference to the new object
itself, either its value or restitution of material of a similar kind.304 If the
owner chooses to claim the new object, he will be exercising an ordinary
action in revendication; if he opts to receive material of a similar kind, until
the fungible property is identified, he will not be able to claim it in reven-
dication. His claim will be at best in contract or delict.30 5
b. Legal Transformation
146. Forced Mutation of Title – Any legal system provides for a variety of
mechanisms by which the owner of a corporeal moveable may be forced
against his will, express or implied, to give up his title to an object. This
occurs notably in cases of expropriation for a public purpose, statutory
transfers, partition, judicial sales, forced sales and licitation. Moreover, in
several other cases the law permits a third party to extinguish an owner’s
rights, as for example in the case of acquisitive prescription and subsequent
transfers by a non-owner transferor in possession. Finally, in one or two
but rather of revendication being refused, despite the right.
299Art. 435 C.C.L.C.
30Art. 436 C.C.LC.
301Arts 430, 435 and 438 C.C.L.C
302Art. 441a C.C.L.C.
303Art. 439 CC.L.C This specific example is not a case of the underlying right being lost,
3
04See art. 440 C.C.L.C. But see ss 179(l) and 179(7) of the BankAct and the Bills of Lading
Act, supra, note 13, which would maintain the bank’s or transferee’s security in such future
property, once the debtor became owner. However, where the accession rules actually expro-
priate the interest of the bank’s debtor, the bank or transferee would also lose both its security
and its right to revendicate.
305Contractual and delictual actions leading to the specific recovery of corporeal moveables
are not real actions. They are discussed in Macdonald, “Revendication: Part One”, supra, note
136, nos 21-22; and Macdonald, “Enforcing Rights in Corporeal Moveables: Revendication
and Its Surrogates (Part Three)” (1987) 32 McGill L.J. [forthcoming].
1986]
ENFORCING RIGHTS IN MOVEABLES
exceptional situations, the law deems, notwithstanding the agreement of the
parties or the desire of one party, that certain contracts or deeds will transfer
title. The most common examples of “public order” title transfers occur in
respect of informal consumer sales and illegal conditions in wills.
i. Partition
147. Indivision and Partition – The rule of article 689 C.C.L.C. that no
one may be compelled to remain in a state of undivided co-ownership means
that the action in partition is always available as an ultimate recourse to
co-owners. Prior to partition each individual co-owner is reputed owner of
the whole common property and may revendicate it from wrongfully holding
third parties. 306 Following partition, however, each co-owner is deemed to
have taken his share directly from the transferor, and never to have had
rights in any property that does not fall into that share.307 Hence, with the
localization of ownership the action in revendication is lost by each co-
partitioner over the property which is no longer subject to his right of un-
divided co-ownership. Nevertheless, even though the partition extinguishes
the title of several co-owners, it is not translative of title between co-owners;
the new owner takes his property subject only to whatever charges existed
at the moment the undivided co-ownership began.
ii. Judicial Sales, Forced Sales and Sales by Licitation
148. The Theory of Judicial Sales – The rules relating to judicial sales are
set out in articles 1585-1591 C.C.L.C. and in the Code of Civil Procedure.
Paragraph 2268(5) C.C.L.C. provides an absolute bar to an owner’s right to
revendicate if his property has been mistakenly sold under authority of
law.308 This provision is a reflection of article 1490 C.C.L.C. and applies
not only to sales following a seizure under article 569 C.C.R30 9 but also to
sales by trustees in bankruptcy, to municipal tax sales after the delay for
redemption has expired, to sales by customs officers, and to all other forced
sales under legal process. 310 Moreover, paragraph 2268(5) C.C.L.C. applies
to licitations under articles 1562 C.C.L.C. and 808 C.C.P wherever a par-
tition in kind is impossible.
306See LUgier, supra, note 1, no. 10.
307Art. 746 C.C.L.C, subject of course to his right to seek rescission under arts 751-53
C.C.LC.
308See Caron, supra, note 271 at 398-99. Of course, the exception may be pleaded only if all
formalities were properly followed: Brook v. Booker (1909), 41 S.C.R. 331. If not, then reven-
dication remains possible until ownership is lost under some other title such as acquisitive
prescription. See, however, the protection given by art. 612 C.C.R to a buyer who has paid the
price.
309Heroux v. Royal Bank of Canada (1941), [1942] S.C.R. 1, [1942] 1 D.L.R. 192; Perlman
31Caron, supra, note 271 at 398, n. 32a.
v. J.J. Joubert Lte, supra, note 257.
McGILL LAW JOURNAL
[Vol. 32
By contrast, an absolute transfer of an owner’s right under paragraph
2268(5) C.C.L.C will not arise from various non-judicial sales in execution.
These include sales by a pledgee who has not stipulated a pacte commissoire
under article 1971 C.C.L.C.,311 sales by trustees for bondholders, 31 2 other
sales in realization by secured creditors, 313 and private sales by certain cred-
itors having a right of retention. 314 In each of these latter cases the sale will
either be a public sale or a sale “in a commercial matter generally” under
paragraph 2268(3) C.C.L.C.; in none of these cases therefore will it effect
an absolute bar upon the true owner’s revendication. 315
149. Effect of a Judicial or Forced Sale – An ordinary sale following a
seizure in execution vests the purchaser with absolute title in any property
belonging to the debtor.316 In France, it is an open question whether the
judicial sale transfers ownership a non domino, or whether it merely impedes
revendication by the true owner.317 But in Quebec, the issue is no longer
debated: article 577 C.C.P. provides that ownership is transferred and title
passes a non domino.31 8 Although the owner’s right to revendicate is purged
once the sale takes place, he is permitted to bring an opposition to withdraw
under article 597 C.C.P. prior to sale.31 9 If an opposition to withdraw is not
brought, the true owner loses his right to revendicate from the purchaser
(adjudicataire)320 unless the sale is set aside for fraud or collusion. 321 How-
ever, if the true owner could have revendicated prior to the sale, he may
claim a privilege in the proceeds of the sale.322
iii. Acquisitive Prescription
150. Acquisition of Ownership by Prescription – Under paragraph 2268(1)
C.C.L.C. the holder of a corporeal moveable is presumed to have lawful
inent v. Caisse Populaire Saint-Denis (1980), [1981] R.L. 1 (C.A.).
3 ‘See Campbell v. Beyer (1906), 30 C.S. 86; Societe Canadienne d’Hypothques et de Loge-
312pag v. Montreal Trust Co. (1981), [1981] C.S. 217; Marois v. Alimentation B.M.R. Inc.
(1981), [1982] C.P. 335, rev’d in part (sub nom. Trust General du Canada v. Marois) (1986),
[1986] R.J.Q. 1029 (C.A.).
313For example, by bank’s transferees, documentary pledgees and commercial pledgees (arts
1979c and 1979i C.C.L.C.).
holders of unclaimed goods. See Macdonald, supra, note 3 at 345-47.
314 For example, jewellers (art. 1671a C.C.L.C.) and innkeepers (art. 1816a C.C.L.C.), or other
315See below, no. 174.
316Banque de Montreal v. Theberge (1968), [1969] R.P. 73.
317See J. Vincent, Voies d’ex~cution et procedures de distribution, 14th ed. (Paris: Dalloz,
1981) no. 68bis.
note 148 at 67-68.
318Heroux v. Royal Bank of Canada, supra, note 309.
319Felton V. Camoco Electronics (1969), [1969] R.P. 424 (Prov. Ct); and see Lauzon, supra,
32Breault v. Trudeau (1953), [1954] C.S. 97.
321Banque Provinciale du Canada v. Desjardins (1978), [1978] C.P. 392.
322Arts 2005a(2) C.C.L.C. and 604 C.C.P.
1986]
ENFORCING RIGHTS IN MOVEABLES
title. 323 Nevertheless, the true owner is not debarred by this presumption
from revendicating his object if he can establish his claim as well as the
defects in the holder’s title. For example, the owner may be able to establish
the precarity of the holder’s possession (in which case prescription can never
be acquired according to article 2193 C.C.L.C.), or show that the possession,
although not precarious, has been of insufficient duration.324
Nevertheless, should the owner fail in this proof, his right to revendicate
will be lost, barring further proof of some other defect in the defendant’s
title. But the dismissal of the true owner’s action does not itself entail a
transfer of title. Until the possessor acquires title by effect of law, the true
owner remains owner, even if he cannot establish the fact with sufficient
certainty to succeed in an action in revendication. 325
Where, however, the possessor acquires title by the effect of acquisitive
prescription, the former owner’s right to revendicate is extinguished along
with the ownership.326 In principle all possessors, even those in bad faith,
acquire ownership of corporeal property at the expiration of thirty years. 327
Additionally, if the possessor is in good faith (which is presumed under
article 2202 C.C.L.C.),328 the prescription period is reduced to three years,
reckoning from the owner’s dispossession. 329
151. Nature of the Three-Year Prescription – The three-year acquisitive
prescription is a juridical anomaly which is unique to Quebec law. It differs
from the rule set out in article 2279 C.N. in three respects. First, the true
owner may always prove his title until prescription is acquired. 330 Secondly,
the term “corporeal moveable” in paragraph 2268(2) C.C.L.C. has been
interpreted as referring to the right and not to the object over which the
333 (C.R) for an analysis of this presumption.
323See Compagnie de publication de La Presse v. Terres laurentiennes Inc. (1970),[1970] R.P
324See Assh v. Cit6 de Lvis (1939), 77 C.S. 153 on proving one’s title, and Belisle v. Caron
(1942), 80 C.S. 160 and Fonderie de Plessisville v. Caron (1934), 72 C.S. 427 on proving defects
of possession. The defendant must establish that the prescription is of sufficient duration, or
that the conditions of art. 2268(3) C.C.L.C. are met. See Tremblay v. Duval (1931), 70 C.S.
239, and Rogers v. Goldberg (1948), [1949] C.S. 74. See generally Martineau, supra, note 274,
nos 161-63.
325See Mazeaud, supra, note 163, no. 1629.
326Thus, while ownership of corporeal moveables cannot be lost by extinctive prescription,
it can be extinguished by the acquisition of ownership by another through acquisitive pre-
scription. See Martineau, supra, note 274, no. 164.
327Art. 2242 C.C.L.C. But see art. 2268(6) C.C.L.C. which prevents prescription by thieves
and their successors by general title.
Ltte v. Sun Life Assurance Co. of Canada (1975), [1975] C.A. 473.
328See Ren6 T Leclerc Inc. v. Perreault (1969), [1970] C.A. 141; Morgan, Ostiguy & Hudon
329See art. 2268(2) C.C.L.C. See also Caron, supra, note 274 at 38-40
330Compare with Ortscheidt, supra, note 1, no. 81. In France the owner may reclaim for up
to three years only if the object was lost or stolen.
REVUE DE DROIT DE McGILL
[Vol. 32
right lies. Hence, incorporeal rights in corporeal moveables (such as usuf-
ruct) may only be prescribed by thirty years. 331 Thirdly, in order to invoke
the abbreviated prescription, it is not necessary that the possessor or his
author have accumulated three years’ good faith possession. It is sufficient
that the possession of the person who claims prescription commenced in
good faith, and the owner has been out of possession for three years.332
The import of this third requirement is difficult to grasp, since it dis-
sociates the quality from the quantity of possession. Certain examples will
clarify its scope. A thief never has possession sufficient for prescription but
if he sells the object he has stolen to a good faith purchaser four years after
the theft, the purchaser immediately acquires ownership by prescription. 333
Again, if a good faith possessor (namely an individual who does not know
of the defect in his own title) sells to a bad faith possessor more than three
years after the true owner’s loss of possession, the party in bad faith never-
theless will acquire ownership. This is because his seller (the good faith
possessor) had already become owner (on the basis of the three-year pre-
scription) prior to the sale. By contrast, should the owner’s dispossession
be of only two years, the bad faith possessor who acquires under particular
title from a good faith possessor can only prescribe by thirty years. 334 Finally,
the dispossession required by the Code is dejure and not defacto. Hence,
if an owner leases an object to a lessee who sells to a third party four years
later, the owner loses possession only at the time of the sale; the new good
faith acquirer can acquire the object by prescription only at the expiration
of three years from the date of sale.335 Moreover, the three-year prescription
can never be set up as between a possessor and his author, since the attempt
to prescribe against title will always amount to a bad faith possession.336
331See Caron, supra, note 274 at 22-25.
332Rickner v. Picard (1945), [1945] C.S. 432. In France, this is seen as a dMlai prffix see
333See Martineau, supra, note 274, nos 161-63. The thief is unlikely to make a sale which
Bordeaux, 14 January 1974, D.1974.Jur.542 (note R. Rodire).
would fall under arts 2268(3) or 2268(4) C.C.L.C.
334Arts 2197 and 2198 C.C.L.C. In this case, the date ofthe owner’s dispossession is irrelevant.
Thus, if a thief steals and holds for two years prior to selling to a good faith purchaser, who
immediately sells to a bad faith purchaser, prescription is not acquired thirty years after the
theft, but rather thirty years from the demonstrable origin of the possession (arts 2198 and
2200 C.C.L.C.). Of course, in most cases there would be an intervening good faith purchaser
who would get immediate title.
335See Caron, supra, note 274 at 40; see also A. Mayrand, “Le nantissement de la chose
d’autrui” (1943) 3 R. du B. 313 at 320. A similar result would occur in dispositions by owners
under a suspensive condition.
336See Mazeaud, supra, note 163, nos 1525 and 1541; G. A. Rosenberg, “The Notion of
Good Faith in the Civil Law of Quebec” (1960) 7 McGill L. J. 2. See also art. 2203 C.C.L.C.,
and Bouloc, supra, note 1, nos 139-46.
1986]
ENFORCING RIGHTS IN MOVEABLES
152. Effect of Prescription – The prescription of thirty years or three years,
as the case may be, may be set up not only against owners, but against all
those asserting a right of revendication in the object prescribed. Like the
judicial sale, acquisitive prescription constitutes a “titre nouveau” which
extinguishes all existing rights in the object. 337
iv. The Object Is Re-Transferred by a Transferor in
Possession
153. The Nature ofthe Transferor’s Rights – A major modification wrought
by the 1866 Code was the adoption of the rule of consensualism in con-
tracts. 338 Article 1025 C.C.L.C. confirms this principle in respect of contracts
for the alienation of a thing certain, whether the contract be a sale, an
exchange or a gift. 339
Because sale is a consensual contract which is perfected without deliv-
ery, 340 a seller who retains possession of a moveable which he has sold no
longer has title, as his buyer has become owner. Nevertheless, paragraph
1027(2) C. C.L. C. provides that, should the seller sell the corporeal moveable
a second time and deliver the object to the second purchaser who is in good
faith, 34 1 the former owner will lose his rights and the subsequent purchaser
will be deemed owner. For the rule of paragraph 1027(2) C.C.L.C. to apply,
the subsequent acquirer must have a bonafide title to the goods in his own
account 342 (either by sale or gift), although it need not be a title translative
of ownership; 343 in addition, the goods must still have been in the possession
of the transferor at the time of the second transfer. 344 Nevertheless, the first
337This is true even of registered security devices. See A.G. Canada v. Mandigo(1964), [1965]
B.R. 259, and Banque Provinciale du Canada v. Dionne (1956), [1957] C.S. 167, which hold
that the bank’s right to revendicate may be limited by arts 2268(2)-(4) C.C.L.C. For a critique
ofthe result as concerns arts 2268(3)-(4) C.C.L.C., seeR. A. Macdonald, “Security under Section
178 of the Bank Act: A Civil Law Analysis” (1983) 43 R. du B. 1007 at 1043-51. See also
below, no. 187.
3d ed. (Montreal: Dawson Bros, 1880) i at ii-iii.
3385ee the discussion in T. McCord & A.D. Nicholls, eds, The Civil Code of Lower Canada,
3391n contracts of gift a notarial deed is required to transfer title without delivery. But a
donor, having executed the deed while having remained in possession, could then sell the object
or give it by don manuel. For a discussion in the context of a contractual institution, see Brire,
supra, note 19, no. 468.
340Arts 1025 and 1472 C.C.L.C.
341Tardifv. Fortier (1946), [1946] B.R. 356.
342Thus, possession by a depositary or mandatory of the seller is not sufficient. See Church
3431t could be, for example,-by way of pledge. Dupuy v. Cushing (1878), 22 L.C. Jurist 201
(B.R.). It could also involve the concession of a usufruct to a second transferee who takes
possession.
v. Bernier (1892), 1 B.R. 257.
344This possession could in fact be effected through the transferor’s warehouseman, carrier
or mandatary.
McGILL LAW JOURNAL
[Vol. 32
transferee need not actually have taken personal delivery in order to defeat
the second transferee’s claim; he need only have taken possession. 345 The
application of paragraph 1027(2) C. C.L. C. is restricted to cases where the
transferor retains possession and not mere custody. 346
154. Effect of the Sale – Once the conditions set out by paragraph 1027(2)
C.C.L.C. are met, the second acquirer may set up his title against an action
in revendication brought by the former owner.347 Once again, this is a case
of a transfer of ownership rather than a mere refusal of revendication. 348
An example will demonstrate the nature of the rule. Suppose a seller who
is left in possession by a first buyer, then sells to a second buyer who takes
possession, but who constitutes the seller as his depositary. If the seller then
delivers to the first buyer, the second buyer could revendicate from the first
buyer on the basis that he was the first to obtain “actual possession.” In
cases of purported successive pledges, the first pledgee’s right to revendicate
as such never arises, since a pledge without creditor possession is a mere
promise of pledge. 349 However, in other transactions such as gift, exchange,
enterprise and loan for consumption the effect of paragraph 1027(2) C.C.L.C.
would be to extinguish the first transferee’s title, as well as the rights of all
parties who have contracted with him. 350 It follows that the second alien-
ation is translative of title a non domino in much the same way a judicial
sale would be.35′
v.
Informal Consumer Installment Sales
155. Sales with a Term for Payment – Sections 66 to 150 of the Consumer
Protection Act set out several obligatory requirements which must appear
in consumer credit contracts. Section 135 of the Act provides that where
these requirements are not met, an installment sale under which ownership
is not transferred until full payment of the purchase price is automatically
transformed into an ordinary contract of sale; title passes immediately to
the buyer, who is deemed to have been given a term for payment. Section
345A buyer might expressly constitute his seller as a depositary on his account, yet, given
the seller’s equivocal custody, the courts are sceptical of such arrangements. See Mailloux v.
Beaudry (1915), 48 C.S. 9 (Ct Rev.).
346Sce Lafleur v. Blanger (1943), [1953] C.S. 181, and the cases cited by Caron, supra, note
347Woodward & Sons v. Auger (1933), 71 C.S. 569.
348Art. 1027(2) C.C.L.C. gives the case of the second acquirer “that one of the two who has
been put in actual possession is preferred and remains owner of the thing.. .[our emphasis]”
271 at 411-12.
349Thompson and Alix Ltd v. Lapierre (1933), 72 C.S. 460.
35 Thus, commercial pledgees, or trustees for bondholders of the first buyer, would lose their
rights.
35’A special difficulty arises concerning the respective rights of the second buyer and of the
transferee or bank. One would expect the same result as in the case of acquisitive prescription,
in that the sale is not merely protected; rather, it transfers ownership. But see below, no. 187.
1986]
ENFORCING RIGHTS IN MOVEABLES
15 states that this provision applies to any title-deferral contract, whether
a credit contract or not. Thus, by operation of law, a seller may lose his
action in revendication because he loses his right of ownership. However,
the Consumer Protection Act does not give the buyer a new title; it merely
modifies the date at which the rights transferred under the existing consumer
contract (invariably title) are vested in the purchaser. For this reason, other
rights ofrevendication opposible to the seller are not necessarily extinguished.3 52
vi. Illegal and Immoral Conditions in Wills
156. Conditional Transfers of Title – Article 760 C.C.L.C. provides that
both gifts inter vivos and wills may be conditional. However, as is the case
in all contracts translative of ownership, a condition contrary to public order
and good morals in a gift inter vivos is not only void in itself, but renders
void the obligation to which it relates.353 In wills, however, an illegal or
immoral condition is simply reputed not written and the disposition stands.354
As a result, where a legacy is deferred by such a condition, the residuary
legatees or intestate heirs immediately lose their right of succession to the
beneficiary of the conditional legacy.355 No longer having ownership of any
corporeal property, they have no right to revendicate. Here again the law
imposes a non-consensual transfer of title by advancing the date at which
the transfer of title occurs. But the heir does not acquire a new title; like
the consumer purchaser, he assumes whatever charges were existing on the
corporeal property at the time the succession opened.
2.
– The Underlying Right Has Been Lost, Extinguished or Surrendered
157. Negative Limits on Revendication – Each of the cases reviewed above
involved a right to revendicate being lost because a third party actually
acquired ownership of the property being revendicated. As a consequence,
the former owner (or anyone deriving rights from him) would be attempting
to revendicate a third party’s property. A second frequent type of situation
where the action in revendication will be refused occurs when, without a
new transfer of ownership, the substantive right less than ownership sus-
taining revendication has been lost or abandoned. This occurs most notably
in cases of extinctive prescription (or other lapse of time), including the
expiration of a contract, in cases where the revendicating plaintiff no longer
352Notably, those of the seller’s vendor or secured creditor, to the extent that they are not
suppressed by some other provision of law, such as art. 2268(3) C.C.L.C.
353Arts 760(1) and 1060(1) C.C.L.C., provided of course that the gift depended on the illegal
condition.
the condition.
354Art. 760(3) C.C.L.C., unless the testator makes the legacy dependent on the fulfillment of
355For a complete analysis of the differences between gifts and wills concerning illegal and
immoral conditions, see Bri~re, supra, note 19, nos 76-81.
68
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meets the material conditions required to assert his rights (whether this
failure arises from a voluntary act on his part or not), and in cases where
he has contractually renounced the right to revendicate. These cases each
are examples of a plaintiff revendicating on the basis of a jus in re aliena
or some non-ownership right: the plaintiff will be asserting in good faith a
legal right to revendicate a third party’s property, but will in fact have lost
his entitlement to do so.
a. Extinctive Prescription and Other Lapses of Time
158. The Theory ofExtinctive Prescription – Article 2242 C.C.L.C. provides
that “[a]ll things, rights and actions the prescription of which is not otherwise
regulated by law, are prescribed by thirty years”. Therefore, in cases in-
volving corporeal moveables, absent any special statutory provision, non-
usage for thirty years extinguishes a legal right.356 Only ownership cannot
be lost by non-usage, although corporeal moveables, unlike immoveables,
may, following abandonment, be left ownerless. 357 It follows that all real
rights inferior to ownership may be lost by non-usage; moreover, all personal
rights giving rise to a jus ad rem may also be extinguished by prescription.
In these cases the extinction of the underlying right also extinguishes the
action in revendication.
159. Legally Time-Limited Revendication – Certain other potential plain-
tiffs also lose their right to revendicate, independently of prescription, by
mere passage of time. This occurs most often in the context of a security
agreement or other accessory rights. Where contractual security is at issue
the law usually limits the duration of the security instrument. For example,
an agricultural or forestry pledge may secure a loan for up to fifteen years
or a line of credit for a five-year term. 358 Similarly, a commercial pledge
expires after ten years.359 Endorsees of documents of title by way of collateral
guarantee lose their title after six months. 360 Finally, transferees of property
in stock may not take security for a term exceeding five years, without
reregistration. 36′
Time limits also affect the rights of various privileged revendicating
plaintiffs. Thus an unpaid vendor must normally revendicate within eight
356 For a complete discussion, see Martineau, supra, note 274, nos 231-406.
357See Marty & Raynaud, supra, note 170, nos 49, 50 and 414-17.
358Art. 1979a C.C.L.C.
359Art. 1979e C.C.L.C. In commercial pledge, as well as agricultural and forestry pledge, the
pledge is void if the contract of loan exceeds the time limits. See CaissePopulairedeSt-Casimir
v. Raymond, Chabot, Fafard, Gagnon Inc. (1982), [1983] R.L. 99 (Sup. Ct).
6OBills of Lading Act, supra, note 13, s. 6.
36 ‘Ibid., ss 22-25.
19861
ENFORCING RIGHTS IN MOVEABLES
days following delivery.362 If he wishes to revendicate on the basis of his
former ownership, he must bring an action in resolution of the sale within
thirty days of delivery if the buyer becomes insolvent.363 The lessor of
immoveables also has a time-limited legal security, but as noted earlier, this
right does not give rise to an action in revendication per se.364 Again, the
tithe creditor may only revendicate his share of the crop for a claim less
than two years old.365
Apart from security and quasi-security agreements, other rights giving
rise to revendication are limited in time. Testamentary executors lose their
seizin one year and one day after the death, unless their term is extended
by the testator.366 Similarly, the seizin of trustees lasts only for the duration
of the trust.367 Rights of usufruct and use which are not life-usufructs or
which are not otherwise limited by contract expire after ninety-nine years. 368
Finally, the right of the heir in provisional possession expires after thirty
years from the disappearance with the result that his right to revendicate
on that basis also expires. 369
In each of these cases the mere effluxion of time sets a limit on the
plaintiff’s right to revendicate. That is, quite apart from the extinction of
a claimant’s right by prescription, in several cases the substantive right
basing revendication constitutes no more than a temporary title. These time
limits are especially important in facilitating the consolidation of ownership
and the protection of the presumption of paragraph 2268(1) C.C.L.C.
160. Consensually Time-Limited Revendication –
In all cases where the
right to revendicate is grounded in a title less than ownership, the right can
be lost by the expiration of the contract which creates the underlying right.
This is true whether the titulary claims a real right (principal or accessory)
or a merejus ad rem such as a right of deposit. In these situations the parties
expressly tie the action in revendication to a particular contractual right.
When the right expires the status to revendicate ceases to exist.
362Arts 1998-1999 C.C.L.C. Where the debtor is insolvent this delay is extended to thirty
days.
363Art. 1543 C.C.LC.
364Art. 1640 C.C.L.C. See above, no. 85.
365See above, no. 86.
366Art. 918 C.C.L.C.
367Art. 981b(2) C.C.L.C.
368Cantin Cumyn, supra, note 142, nos 14-17.
369Art. 98 C.C.LC.
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b. Failure to Comply with Other Conditions for Revendication
161. Revendication Based on Possession – Many rights less than ownership
imply that their titulary will have a right of detention of a corporeal move-
able. For example, a revendicating plaintiff often will be attempting to regain
custody of an object in order to perfect some security against its owner.
Since creditor possession is the essence of many of these security devices,
any voluntary surrender of possession to the debtor will extinguish the right
to revendicate. Thus, ordinary pledgees, retention claimants, and holders
such as unpaid sellers asserting the exceptio non adimpleti contractus who
voluntarily give up possession will lose the right to assert that possession
against their cocontractant (or the true owner).370 It follows that these cred-
itors also give up any right they may have had to revendicate from wrong-
fully holding third parties.
On the other hand, where the responsibility of the possessor continues
notwithstanding any loss of custody (that is, where the holder’s primary
responsibility is administration) even a voluntary surrender of custody does
not extinguish the underlying right, and revendication continues to be pos-
sible. 37′ Thus, depositaries, sequestrators, trustees, executors, mandataries,
negotiorum gestores, recipients of a thing not due, lessees and borrowers for
use retain the right to revendicate even if they have voluntarily transferred
custody, by way of, for example, sub-deposit, replacement mandate or sub-
lease. 372
162. Abandonment and Abuse – There are a variety of other cases where
the underlying right, and consequently the action in revendication, are lost.
For example, whenever the titulary of a right (other than ownership) suf-
ficient to sustain revendication abandons the object or renounces his right,
he also irrevocably gives up the right to revendicate. Of course, should the
owner of a corporeal moveable abandon his object he will not necessarily
lose his right to revendicate. If a third party has acquired it by occupation
or prescription the abandoning owner will have lost his title; if no one has
claimed the object the owner may simply take it back. 373 Where a third
party claims the abandoned object animo domini but has not yet acquired
ownership, the court is called upon to decide whether to prefer a repentant
former owner or an actual possessor. In such a case the presumption of
article 2268(1) C.C.L.C. ought to protect the present possessor’s ownership,
assuming he can prove the prior abandonment. 374
370Except a temporary surrender, for purposes of repairs, etc. See above, no. 81.
371Unless the surrender is intended to terminate the contract. See below, no. 161.
372Discothtque & Golf Lafontaine Inc. v. Lussier, supra, note 139.
373See Mazeaud, supra, note 163, no. 1629.
374Moreover, even if the owner abandons with animus, if he should change his mind prior
to another taking possession, he may plead art. 2268(l) C.C.L.C.
,19861
ENFORCING RIGHTS IN MOVEABLES
The underlying right upon which revendication is grounded may also
be forfeited in cases of abuse. Only an owner (or someone explicitly au-
thorized by the owner) is permitted to exercise the prerogative of material
abusus. Thus, where the titulary of a real or personal right such as usufruct
or lease, wastes or dissipates a pledged, loaned or leased object the under-
lying right will be forfeited.375 This is also true for non-contractual posses-
sory rights such as the right of retention. In all such cases, the result is the
same as if the time limits for the contract expired. 376
163. Identity and Individuality –
In various cases already examined the
loss of identity or individuality of a corporeal moveable actually operated
a transfer of ownership.377 But several rights less than ownership may be
lost through a loss of identity or individuality, even where title itself is not
transferred. For example, where the owner of land immobilizes an object
belonging to him by nature, .no transfer of ownership results. But all lesser
rights (real or personal) in or in respect of the object will be extinguished.
Obvious examples include the case of usufructuaries, pledgees or unpaid
sellers.378 The underlying right is also lost, with respect to most of these
lesser rights as a consequence of immobilizations by destination. 379
Not only must an object retain its identity as a corporeal moveable,
but it must in most cases also retain its individuality. This limitation is not
particularly problematic, since the rules of accession to moveables will gen-
erally operate to transfer title as well. If the right of ownership of an object
is extinguished by accession so also would be all lesser rights in that object.
But with respect to certain types of non-possessory security, a loss of in-
dividuality is possible, even without a change of ownership. Such a loss of
individuality will extinguish an unpaid seller’s and a commercial pledgee’s
rights,380 although not those of a bank, transferee of property-in-stock, or a
trustee for bondholders.38′ In all these cases, if the underlying right is lost,
for lack of identity or individuality of the object upon which it bears, so
too is the action in revendication which sustains it.
See above, no. 159.
37 5Arts 480, 1766, 1805, 1975 C.C.L.C.
376
377See above, nos 136-45.
378This is because, while the same person remains owner, the basis of his title has changed.
Only banks asserting s. 178 security and transferees of property-in-stock are exempt from this
loss of title in certain cases. See below, no. 187.
379But see art. 1979ff. C.C.L.C. for commercial pledge, and s. 178 of the Bank Act, supra,
note 13. See also art. 571 C.C.P. and Banque d’lpargne de la cite et du district de Montr~al v.
Gaz Metropolitain Inc. (1976), [1976] R.P. 83 (Prov. Ct).
380Art. 1999 C.C.L.C.; Roy v. Bois Ste-Lucie Inc., supra, note 41; see art. 1979f C.C.L.C. by
3 8’1 ee, e.g., the Bank Act, supra, note 13, s. 179(7).
implication.
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164. Contractual Informality – While most contracts relating to moveables
are strictly consensual, several security or quasi-security devices require a
degree of formality. In most cases, a failure of formality will mean that the
right claimed is radically null. This would be the case, for example, with
an informal trust deed, commercial pledge or transfer of property-in-stock.
In two cases, however, informality merely restricts the opposability of the
right which is claimed. Thus, a failure to register an “intention to give
security” under section 178(4) of the Bank Act does not void the bank’s
security; it merely makes it inopposable to certain creditors. For this reason,
revendication on the basis of a section 178 right would remain possible,
except as against those listed creditors. Similarly, the limitation on a re-
pairer’s right of retention set out in sections 179 and 186 of the Consumer
Protection Act only applies as against the consumer.382 Should the true owner
(in cases where the consumer is not the owner) attempt to regain possession,
the repairer may oppose his right; hence, should the repairer be wrongfully
dispossessed by anyone other than the consumer, he may be able to reven-
dicate.
c. Contractual Renunciations
165. Licenses to Deal and Partial Waivers – Normally the action in re-
vendication will be exercised only against a third party who has no con-
tractual relationship with the owner. Such a third party could be a finder,
a thief or a person who himself has contracted with the owner’s co-con-
tractant. The most common example of this last situation would be the case
of the purchaser from a holder who is merely a lessee or conditional pur-
chaser. In such cases the relationship of the third party purchaser and the
true owner would be governed by the rules relating to the sale of the thing
belonging to another.3 83 A variation on this theme occurs when an owner-
debtor sells property over which he has granted a non-possessory security;
if he attempts to do so free of his creditor’s security, a conflict between the
third party and the creditor will arise. Normally the rules of the Code will
apply to determine the respective rights of purchaser and secured creditor. 384
Nevertheless, in certain cases, an owner or secured creditor will ex-
pressly give a co-contractant a license either to deal with the property free
of his rights or to subordinate his rights to a third party. In such cases, the
third party may avail himself of rights arising from a contract to which he
was not a party.385 For example, a stipulation by which a seller who retains
38-See, by analogy, General Motors Acceptance Corp. of Canada v. Boucher (1979), [1979]
C.A. 250.
383See arts 1487-1490 and 2268 C.C.L.C.
384See Macdonald, supra, note 337 at 1043-51.
385Art. 1029 C.C.L.C. See C.K. Irving, “Article 1029 C.C.: Stipulation for a Third Party”
(1963) 9 McGill L.J. 337.
1986]
ENFORCING RIGHTS IN MOVEABLES
title agrees with his buyer that he will not enforce his right to revendicate
against ordinary course purchasers of the buyer may be invoked in defense
to an action in revendication brought by the original seller, provided the
stipulation is a genuine stipulation for a third party.386 A similar result may
be reached in respect of the right to sub-lease 387 and the right to assign
principal real rights such as usufructs. 388 Finally, the owner or secured cred-
itor might agree that the debtor could engage in ordinary course dealings
giving rise to a right of retention, in which case the right to revendicate
would be subordinated to that of the retention claimant. 389
166. Inter Partes Stipulations –
It is common for the titulary of a right to
revendicate to agree with his own co-contractant to postpone or forfeit the
right to revendicate under certain conditions. Most often these agreements
occur in the context of a security agreement, where for example a conditional
seller will agree to give notice prior to revendicating his object. These ar-
rangements are simply a reflection of the ordinary law of contract and con-
stitute no more than limitations on the underlying right which translate into
limitations of the action in revendication. 390
3.
Loss or Limitation of the Action in Revendication Per Se, without
Loss of the Underlying Right
167. Survival of the Underlying Right – Perhaps the most distinctive feature
of the action in revendication is the fact that it may be lost or conditioned
even when the underlying right which it protects subsists. In some situations
a plaintiff otherwise entitled to revendicate may be unable to do so because
the remedy is unavailable against the party in physical control of his object.
This obviously occurs where a co-contractant (or a person directly deriving
inferior rights from him) has a right to custody of the corporeal moveable
but it also arises from certain legal impediments to revendication which
protect the rights of third parties.
The most common cases involving a denial of revendication against
third parties are the protected and partially protected sale hypotheses of
article 2268 C.C.L.C. In addition, there are two cases where the plaintiff
cannot revendicate against a co-contractant or a person with whom he has
a direct legal relationship. These are the cases of imposed indivision and
of ordinary consumer installment sales. Finally, in certain cases a statutory
386Compare Juneau v. Plamondon (1930), 69 C.S. 327.
387Art. 1619. C.C.L.C.
388See art. 457 C.C.L.C.
389See Macdonald, supra, note 337 at 1043; Boston Bank of Canada v. Montreal Fast Point
390Rather, these restrictions can be analogized to those arising in protected sales hypotheses.
(1975) Ltd (28 August 1986), Montreal 500-05-005445-869 (Sup. Ct).
See below, no. 172ff.
McGILL LAW JOURNAL
[Vol. 32
transfer will not deprive a potential revendicating plaintiff of his right of
ownership but will nevertheless suppress revendication, the remedy to en-
force that right.39 1
What is notable in each of these cases is that the underlying substantive
right (even if one of ownership) survives. Thus, revendication remains pos-
sible against all persons except those whom the law explicitly protects from
revendication. 392
a.
Inter Partes Limitations on Revendication
168. Nature of the Right – Normally, a party seeking to recover a corporeal
moveable from a co-contractant will do so through an action in specific
performance. However, in two situations the action in specific performance
will be unavailable. First, in cases of imposed indivision, there may not be
an applicable contractual term concerning custody between owners whose
goods have been intermingled. Here, any attempt at recovery would have
to be grounded in revendication. Secondly, there are cases where the law
restricts the freedom of parties to contractually stipulate the circumstances
under which custody of an object may be transferred. Thus, the plaintiff
out of possession is no longer asserting a contractual right, but rather a right
to possession grounded in his status as a titulary of a real right (most often
that of ownership).
i.
Imposed Indivision
169. Limited Revendication – Under articles 436, 437 and 439 C.C.L.C.,
when adjoined or admixed moveables belonging to several owners cannot
be separated and their relative value is equal, the rules of accession do not
operate so as to permit one owner to expropriate the other.393 Similarly if
the value of the workmanship and materials of one person is equal to the
value of the materials of the other, and the moveables cannot be separated,
article 436 C.C.L.C. also prevents expropriation. 394 Each becomes an un-
divided co-owner of the whole. Therefore, while each retains a right to
revendicate against third parties, 395 neither may revendicate from the other.
As in the case of any other type of indivision, the recourse of the undivided
39’See Macdonald, “Revendication: Part One”, supra, note 136, no. 74.
3921n other words, this is the obverse of the title-washing problem. In asking whether title
is washed, one is concerned to know if any of the various plaintiffs in revendication may still
bring an action. In the present context the question is to determine which defendants can resist
revendication.
3931f one owner’s material demonstrably exceeds the other owner’s material in value, art.
394But if the relative values are unequal, then expropriation occurs either to the owner (art.
438 C.C.L.C, gives a right to expropriate.
434 C.C.L.C) or to the workman (art. 435 C.C.L.C.).
395See lUgier, supra, note 1, no. 10.
19861
ENFORCING RIGHTS IN MOVEABLES
co-owners inter se is either partition or licitation. 396 It follows that an in-
nocent owner whose material was confused or specified remains owner but
loses a part of the right to revendicate which he previously could have
exercised indiscriminately.
ii. Ordinary Consumer Installment Sales
170. Nature of Consumer Installment Sales – Under the Consumer Pro-
tection Act 397 the owner of property sold to a consumer by installment sale,
or under any other contract which defers the transfer of title until complete
performance of the buyer’s obligations, 398 may not always be able to re-
vendicate the goods from his buyer according to the terms of the contract
of sale. Section 138 of the Act subjects the action in repossession to various
preconditions which are set out in sections 139 to 146. 399
Sections 139 and 140 provide that the owner may not retake possession
without giving the consumer a thirty-day notice to remedy any default under
the contract. Moreover, sections 142-144 require the seller to obtain judicial
permission to retake possession from a consumer who has paid more than
half of the purchase price. In such cases the court may not only refuse
permission to repossess, but may also modify the credit terms respecting
the balance owing at that time.400
In these hypotheses, the
171. Scope of the Seller’s Right to Revendicate –
Consumer Protection Act does not effect a transfer of title to the consumer.40′
In contrast to the sanction resulting from an informal consumer installment
sale, the seller remains owner. However, the seller’s right to revendicate is
severely restricted as against his buyer. On the other hand, as owner the
seller could revendicate from any third party who wrongfully holds the
property as well as from any person acquiring the property from the con-
sumer, subject nevertheless to the limitations set out in article 2268
C.C.L.C.402 As in the case of imposed indivision, the law protects the sub-
stantive right, while at the same time restricting the titulary’s judicial re-
courses available to vindicate it.
b. Limitations on Revendication as against Third Parties
172. The Notion of a Protected or Partially Protected Sale or Pledge –
Paragraphs 2268(3) and 2268(4) C.C.L.C. provide that in certain cases an
owner may lose the right to revendicate his corporeal moveable property
396Art. 439 C.C.L.C.
39 7C.P.A., supra, note 27.
398C.P.A., ibid., s. 15.
399In addition, C.P.A., ibid., s. 136(6) prevents contractual recapture clauses (des voiespar&s).
4C.P.A., ibid., s. 15, makes these provisions apply mutatis mutandis to resolutory provi-
sions.
40ISee C.P.A., ibid., s. 135, and see above, no. 154.
402See also C.P.A., ibid., s. 137.
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[Vol. 32
from a holder who has not yet acquired it by prescription under paragraph
2268(2) C. C.L. C.403 First, paragraph 2268(3) C. C.L. C. establishes a rule that
certain purchasers automatically acquire a legal position unassailable by the
true owner. Secondly, paragraph 2268(4) C.C.L.C. provides that in other
cases the true owner may revendicate only upon reimbursing the purchaser
the price he has paid. In this study, the former will be characterized as a
protected sale, the latter as a partially protected sale.
i. Protected Sales and Pledges
173. Conditions for Protected Sales – The Code sets out four conditions
which an acquirer must meet in order to avail himself of paragraph 2268(3)
C.C.L.C. First, he must be in actual possession of the corporeal moveable. 404
Once this is established the acquirer must also meet three other condi-
tions:405 he must be in good faith,40 6 the corporeal object must not have
been lost or stolen 407 and he must have acquired the object in one of the
protected sale circumstances set out in paragraph 2268(3) C.C.L.C. (that is,
at a fair, market, or public sale, or from a trader dealing in similar articles,
or in a commercial matter generally).
174. Types of Protected Sale – The notion of a “sale at a fair or market”
is self-explanatory, but seldom encountered today. The conditions under
which other types of protected sale may arise require discussion.40 8 The
term “public sale” was at one time interpreted to mean only an auction
under articles 1564 to 1568 C.C.L.C., 409 although it would seem that public
403For an extensive study, see Caron, supra, note 274, and see above, note 271.
44See Martineau, supra, note 274, no. 165.
40 5It is to be remembered that the onus rests on the acquirer to prove these three other
conditions. See Martineau, supra, note 274, nos 166-77; Caron, supra, note 271 at 416; and
Rogers v. Goldberg (1948), [1949] C.S. 74.
406Art. 2268(3) C.C.L.C.; Fortin Foundry v. Palmer Bros (1960), [1960] C.S. 324.
407Art. 2268(4) C.C.L.C. Martineau, supra, note 274, no. 156 believes that the expression
“stolen” should be given a narrow interpretation. That is, rather than to be interpreted as
encompassing the hypotheses covered by the Criminal Code (which would include conversion
by a person given custody by the seller), the term should be given the same restrictive inter-
pretation as in France. See Globe Slicing Machine Co. v. Ethier (1948), [1948] C.S. 257; and
Mazeaud, supra, note 163, nos 1521-23. On the other hand, Caron, supra, note 274 at 26-38,
believes, on the basis of Sauv6 v. Guildhall Insurance Co. (1961), [1961] B.R. 733, Rocheleau
Automobile Ltde v. Guay (1963), [1963] B.R. 770 and Commercial Credit Corp. v. Royal In-
surance Co. (1968), [1969] B.R. 793, that there will be few cases where property passes into
the hands of a third party against the owner’s wishes, without there being a theft or loss. The
clear intention of the codifiers in proposing art. 2268(3) C.C.L.C. has, therefore, been subverted
by the cases.
408See Martineau, supra, note 274, no. 165; Caron, supra, note 274 at 17
409P.-B. Mignault, Droit civil canadien, t. 9 (Montrbal: Wilson & Lafleur, 1916) at 553, n. 84.
1986]
ENFORCING RIGHTS IN MOVEABLES
sales in realization by a secured creditor today would also qualify as public
sales.
4 10
-The expression “trader dealing in similar articles” means
celui qui exerce publiquement, ostensiblement et habituellement son n6goce
dans la localit6 ofi il est connu … le fait d’en vendre occasionnellement des
effets, au lieu d’affaires des acheteurs, ne peut constituer tel vendeur d’occasion
commergant trafiquant en semblables matires. 411
Thus, a watchmaker who sells watches is such a person, although an ordinary
service-station owner who sells a used car is not.412
By far the most problematic qualifier is the phrase “nor in commercial
matters generally”. Here the Code seems to contemplate a very broad cat-
egory of sales.413 In fact, courts have systematically held that revendication
is not to be permitted whenever a commercial operation is envisioned,
regardless of whether the seller is a trader dealing in similar articles, whether
the sale is at a fair or market, or whether it is a public sale.414
175. Protected Pledges – Article 1966a C.C.L.C., which makes article 2268
C.C.L.C. applicable to contracts of pledge, does not fit very well with the
scheme of the Code. While it seems obvious that article 1966a C.C.L.C.
applies to ordinary possessory pledges, 415 doubts remain about its appli-
cation to non-possessory pledges. Of course, because agricultural pledges do
not involve commercial operations, they are excluded;416 but courts have
applied article 1966a C.C.L.C. to commercial pledges. 417 Again, while it is
not clear whether transfers to trustees under the Special Corporate Powers
Act are subject to article 1966a C.C.L.C.,418 all agree that transferees under
410Caron, supra, note 274 at 17; and Caron, supra, note 271 at 398.
41tCharron v. Walker, supra, note 87 at 443. See also Laforest & Frres Inc. v. Dagenais
(1960), [1961] C.S. 415; and Caron, supra, note 274 at 17-18.
relating to automobile dealers.
412Ren6 T. Leclerc Inc. v. Perrault (1969), [1970] C.A. 141. But see below for special rules
413See Martineau, supra, note 274, no. 166; and Caron, supra, note 274 at 5-15. See also G.
Owen, “Sale of a Thing not Belonging to Vendor” (1936) 14 Can. Bar Rev. 434; L.A. Pouliot,
“Nullit6 de la vente de la chose d’autrui” (1934) 12 R. du D. 450; National Cash Register v.
Demetre (1905), 14 B.R. 68; Frigidaire Corp. v. Malone (1933), [1934] S.C.R. 121; but see
Gotfredson Corp. v. Fillion (1929), 46 B.R. 52.
414See Caron, supra, note 274 at 15-16. See also art. 2260(5) C.C.L.C. on the presumption
415Canadian Bank of Commerce v. Stevenson (1892), 1 B.R. 371.
416Agricultural pledge cannot be a commercial matter. See Caisse Populaire Notre Dame
of commerciality.
d’Hebertville v. Encans de la ferme Inc. (1972), [1973] R.L. 292 (Prov. Ct).
4 7 Re Bertrand (1967), [1967] C.S. 596. But see Macdonald, supra, note 82, for arguments
supporting the contrary proposition.
4 18See the discussion in Caron, supra, note 271 at 406-09 and 412-13.
McGILL LAW JOURNAL
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the Bank Act or the Bills of Lading Act cannot resist revendication by in-
voking paragraph 2268(3) C.C.L.C.419
A further complication arises when a debtor grants two commercial
pledges, or grants a simple pledge to a second creditor after having given a
first commercial pledge. Does the second pledgee who takes possession have
the right to resist revendication by the first pledgee? The majority view of
the courts has been to the contrary: registration of the commercial pledge
is deemed sufficient to defeat the second pledgee’s claim to good faith.420
Thus, a first commercial pledgee could revendicate the object of the pledge
from a later pledgee (whether commercial or ordinary) who had obtained
possession of it.
176. Effect of Protected Sales and Pledges – The effect of paragraph 2268(3)
C. C.L. C. is to prevent revendication by the owner or other person normally
entitled to do so. 42 1 In other words, pledgees or acquirers under the (rarely
applicable) conditions set out by paragraph 2268(3) C.C.L.C. obtain a right
opposable to the revendicating party under any title. It should be noted,
however, that the purchaser or pledgee does not immediately acquire title
to the goods as against the owner: only the owner’s right of revendication
is suppressed. 422 Thus, if a buyer of the thing of another in a protected sale
should later lose the object, prior to three years following the true owner’s
dispossession, the true owner should always be able to revendicate it from
the finder.
A more difficult case arises where a protected purchaser later sells in a
non-protected sale, even to a good faith purchaser prior to three years’
dispossession of the owner. Given the drafting of article 2268 C.C.L.C., the
action in revendication ought still to lie against the purchaser. This seem-
ingly unreasonable result can be justified on’ two bases. First, article 2268
C.C.L.C. was designed to facilitate commercial transactions rather than
private dispositions; and secondly, if paragraph 2268 C.C.L.C. were held to
transfer title, then paragraph 2268(4) C.C.L.C. could only be explained by
coopErative agricole de Plessisville v. Tardif (1963), [1963] C.S. 658.
419Caron, supra, note 271 at 413; G.E. Le Dain, “Security Upon Moveable Property in the
Province of Quebec’. (1956) McGill W. 77 at 104; Chaine cooperative du Saguenay v. Laberge
(1959), [1959] C.S. 320. Bank Act, supra, note 13, s. 178(2).
420ReMacajo Construction Inc. (1972), [1973] C.A. 505; Re Bertrand, supra, note 417; Soci&9
421For the view that the bank acting under s. 178 would not be precluded from revendicating,
see Macdonald, supra, note 337 at 1043-50. But see contra: Mandigo v. A.G. Canada (1964),
[1965] B.R. 259.
422But see, contra, Martineau, supra, note 274, nos 167-68, citing French authority such as
Marty & Raynaud, supra, note 170, no. 391; Mazeaud, supra, note 163, no. 1540. Caron is
equivocal on this point: see Caron, supra, note 271 at 390-91 where he notes the difference
between French and Quebec law and concludes “c’est tout comme si la vente… expropriait,
sans plus de formalitrs, le propri6taire de ce bien”.
19861
ENFORCING RIGHTS IN MOVEABLES
by some notion of defeasible title –
that is, as a forced sale from the good
faith purchaser back to the original owner. It follows that, while acquisitive
prescription, judicial sales, and sales by a seller in possession effect a transfer
of ownership, paragraph 2268(3) C.C.L.C. only establishes a defense which
can be set up by purchasers at certain types of sales. It does not, to use a
current expression, “wash title” or create a “titre nouveau” as would be the
case in France.423
ii. Partially Protected Sales and Pledges
177. The Notion of a Partially Protected Sale or Pledge – Notwithstanding
the general rule preventing revendication in cases of protected sales and
pledges, paragraph 2268(4) C.C.L.C. elaborates one hypothesis where the
owner against whom prescription has not been acquired may nevertheless
regain custody of his corporeal moveable. If a buyer purchases, or a pledgee
takes possession, under the conditions of paragraph 2268(3) C.C.L.C., but
the true owner has been dispossesed by theft or has lost the object, the buyer
or pledgee may be compelled to surrender that object. Where the object is
lost or stolen, therefore, the paragraph 2268(3) C.C.L.C. defence is no longer
open to a buyer.424
178. Effect of a Partially Protected Sale or Pledge – To revendicate, how-
ever, the true owner must reimburse the buyer the price paid to acquire the
goods, or pay the pledgee the amount of his secured claim.425 Of course, if
the acquirer or pledgee is not in good faith,426 the owner may revendicate
without being obliged to reimburse the purchaser or pledgee. In all events,
the owner must not have been dispossessed more than three years, since
the holder, being in good faith, would then have acquired title by prescrip-
tion.427
As in the case of a protected sale, a partially protected sale does not
effect a transfer of ownership. It merely conditions the right of an owner
(or of any other plaintiff) to revendicate his object from the specific pur-
chaser who may plead paragraph 2268(3) C.C.L.C. Revendication without
reimbursement remains possible from wrongfully holding third parties, and
423Ortscheidt, supra, note I nos 5-9. Some claim that such a result would mean that the
ultimate buyer would suffer. Yet he has a recourse in warranty against his seller. Does the
“protected buyer” then have a recourse against the “protected seller”, and the “seller” a recourse
further up the chain of title? Caron suggests that such recourse is possible: see Caron, supra,
note 271 at 390. If so, there is no reason of policy to extend the effects of the “protected sale”
to later acquirers from the “protected buyer”.
424See above, note 407 for a discussion of the term “stolen”.
425See Caron, supra, note 271 at 391-93; Martineau, supra, note 274, nos 169-70; and Laforest
et Fr~res v. Dagenais (1960), [1961] C.S. 415; Lapointe dit Desautels v. Charlebois (1912) 42
C.S. 57.
426Econ Oil Co. v. Eddy Veilleux Transport Ltte (1974), [1973] C.S. 1068.
427Federation Insurance Co. v. Craig Forget Cie (1973), [1973] C.S. 431.
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until prescription is acquired from subsequent acquirers who cannot them-
selves plead paragraph 2268(4) C.C.L.C.428
iii. Protected Sales of Automobiles
179. The Licensing Requirement – Under section 22 of the Highway Code4 29
the sale of an automobile by any person who is not licensed to do so is
presumed to be neither a sale by a trader dealing in similar articles nor a
sale in a commercial matter.430 In other words, for the purposes of para-
graphs 2268(3) and 2268(4) C.C.L.C., even a person ostensibly falling within
the list of privileged sellers cannot give a protected title to his buyer unless
he holds the appropriate license. The true owner may revendicate against
the buyer from an unlicensed dealer, without owing an indemnity431 even
if the buyer is in good faith. 432 The buyer who neglects to demand proof
that his seller holds the required license loses the right to any of the pro-
tections of paragraphs 2268(3) or 2268(4) C.C.L.C. 433 and must suffer re-
vendication without reimbursement by the true owner.
180. Effect of Holding a License – Where the seller holds a permit, the
normal rules of article 2268 C.C.L.C. will apply,434 so that a buyer in good
faith may resist revendication until reimbursed. The owner who must reim-
burse the defendant for the price paid under paragraph 2268(4) then has a
claim against the insurance fund of the licensed seller for the true amount
of his loss, 4 3 5 even if, according to some cases, this amount is greater than
the purchase price received by the licensed seller.436 Once again, as in par-
tially protected pledges and sales, the true owner does not automatically
lose his right of ownership. He merely loses his absolute right to revendicate
against particular buyers. Of course, should prescription be acquired, he
loses whatever rights he had in his automobile and can never revendicate. 437
c. Statutory Transfers
18 1. The Theory of Statutory Transfers –
In a number of situations arising
under the Winding- Up Act or the Bankruptcy Act, from the moment a wind-
ing-up or receiving order is made, the true owner would seem to be deprived
exceptionnel du Code de la Route” (1971) 31 R. du B. 243.
428The analysis, supra, note 423, is also applicable in this situation.
429Supra, note 4.
430 ndustrial Acceptance Corp. v. Couture (1953), [1954] S.C.R. 34; D. Jacoby, “Le regime
431Home Fire & Marine Insurance Co. v. Baptiste (1933), [1933] S.C.R. 382.
432Wawvanesa Mutual Insurance Co. v. Plante (1967), [1967] C.S. 540.
433See Caron, supra, note 271 at 400-06; and Martineau, supra, note 274, nos 173-76.
434General Motor Acceptance Corp. v. Federation Insurance Co. (1960), [1960] S.C.R. 726.
435Highway Code, supra, note 4, s. 22. See Canadian Survey v. Industrial Acceptance Corp.
(1971), [1972] C.A. 71.
436Guildhall Insurance Co. v. Levac automobile Lte. (1967), [1968] B.R. 152.
437See Caron, supra, note 271 at 406.
1986]
ENFORCING RIGHTS IN MOVEABLES
of his right of ownership per se. In other cases, however, only certain pre-
rogatives of ownership, such as the right to revendicate, are transferred. In
these cases, therefore, the underlying right of ownership seems to remain
intact, while only the action in revendication is transferred from the owner
to transferee. Paradoxically, in cases of protected sales, ownership and re-
vendication remain intact but not exercisable against certain defendants. In
a statutory transfer it is the titulary of the action who is legislatively defined,
independantly of the titulary of the right of ownership.438
4.
Possessory Security Devices and Seizures in Execution
182. Special Features of Security and Executions –
In the three preceding
sections various hypotheses relating to the loss of the action in revendication
were examined: first, where the right sustaining revendication was trans-
ferred to another who automatically acquired title to the action in reven-
dication along with the underlying substantive right; secondly, where the
substantive right less than ownership giving rise to revendication was simply
lost, so that the action was also lost; thirdly, where the underlying substan-
tive right survives, but the action in revendication is limited vis-a-vis certain
defendants or is transferred to an administrator. It is now appropriate to
consider several situations where the right is lost or conditioned as a result
of execution process or of a special defense afforded to a particular holder.
a. Rights of Retention
183. Opposability of the Right of Retention –
In various dispositions the
Civil Code provides that a person who has manufactured, repaired, pre-
served or otherwise expended money on moveable property may retain it
until his account is paid.439 In essence, the holder may retain the object
until his claim is paid.440 As noted, this right also entitles the retention
claimant to revendicate the object of his claim against third parties wrong-
fully in possession. In addition, the right of retention is opposable to the
retainer’s debtor,44 1 to his debtor’s secured or unsecured creditors 442 and to
his debtor’s trustee in bankruptcy.443 Most importantly, in cases where the
debtor is not owner of the property retained, the right is opposable to the
438See R.A. Macdonald, “Revendication: Part One”, supra, note 136, no. 74; Canadian
Business Corporations Act, S.C. 1974-75-76, c. 33, ss 204(6) and (7); Bankrupcy Act, R.S.C.
1970, c. B-3, ss 47-50; Winding-Up Act, R.S.C. 1970, c. W-10, ss 33-35.
439Frenette, supra, note 8, nos 25-27.
440Pinard v. Bergeron (1977), [1977] C.S. 1158.
44’Gagnon v. Loubier, supra, note 8.
442Elliot Krever Ltd v. Montreal Casting Repairs (1968), [1969] C.S. 6.
443In re William divard Hayes (1928), 10 C.B.R. 283.
McGILL LAW JOURNAL
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true owner 444 or any of the owner’s assigns. 445 Thus, the true owner or any
other claimant may not exercise a right of revendication against a person
holding under a right of retention until the price of the latter’s services have
been paid.446 Once again, the party defendant is claiming a defence to the
action in revendication in a fashion analogous to that of a protected sale
and is not contesting the plaintiff’s title to bring the action.
b. Ordinary Seizures in Execution and Private Realizations
184. Limits on Oppositions to Seizure –
In any execution process, as well
as in any seizure before judgment, there will likely be conflicting claims
between various individuals, each of whom will be vested with a right to
revendicate. While the specific features of the opposition to withdraw from
seizure will be discussed later, it is important to note here that an owner
who is not the debtor of the seizing creditor may normally recover property
under seizure. Similarly, titularies of principal real rights in corporeal move-
ables who are not execution debtors may require that the sale be made
subject to their rights. Hence, if they have a possessory right, they may assert
that possession against the seizing creditor. Finally, where a secured creditor
has a right to revendicate, the right to oppose a seizure will depend on
whether the opposant is a higher or lower-ranking creditor.
A substantially similiar regime applies where a creditor who is vested
with a private right of realization seizes corporeal property. Since under
both the Bank Act and the Bills of Lading Act the documentary pledgee
cannot acquire rights in the property covered by the security agreement
until the debtor becomes owner thereof, third party owners may in principle
revendicate their property. But section 179(1) of the Bank Act and sections
4 and 27 of the Bills of Lading Act give the documentary pledgee preference
over the rights of an unpaid vendor. Thus, the unpaid vendor’s right to
revendicate cannot be exercised against a documentary pledgee who has
taken possession of the pledgor’s goods, if the documentary pledge was
acquired without notice of the vendor’s rights. 447 All other persons entitled
to revendicate the property may nevertheless do so against the documentary
pledgee, or as against any other creditor attempting to realize privately,
under the same conditions as would apply if a seizure in execution had
taken place.
444Laurentide Finance Co. v. Paquette, supra, note 8.
445Gingras v. Maher (1917), 53 C.S. 289.
446The retention creditor must surrender the object if it is seized in execution but he may
claim his money by preference from the proceeds of the judicial sale. See Frenette, supra, note
8, no. 49.
447See Macdonald, supra, note 337 at 1051-60.
1986]
ENFORCING RIGHTS IN MOVEABLES
c. The Object Is Seized by a Lessor Exercising a Privilege
185. Nature and Effect of the Lessor’s Claim – The one exception to the
principle that an owner may exercise his right of revendication by bringing
an opposition to the seizure under article 597 C.C.P., whenever his property
is judicially seized by the creditor of a third party, arises where a landlord
seizes his tenant’s furnishings to exercise his privilege for rent due or for
damages.448 Article 1639 C.C.L.C. extends the lessor’s privilege to certain
property of third persons which is found on the leased premises. In order
for such property to be exposed to seizure, it must be there with the third
party’s consent, 449 not merely temporarily or accidentally, 450 and the lessor
must have had no notice of the rights of the third party.451
While the lessor’s privilege cannot be claimed in respect of residential
leases, 452 in all other cases it operates to deprive the owner of the right to
prevent the sale of his property. In other words, because the lessor’s claim
under article 1639 C.C.L.C. lies directly on the property of third parties,
the article 597 C.C.P. “opposition to withdraw from seizure” cannot be
raised by the third party owner. Of course, the goods may be revendicated
in all cases of wrongful possession by the lessee (in which case they would
not be on leased premises with the owner’s consent) and they may also be
revendicated prior to any seizure in execution (or seizure before judgment)
by the lessor.453
5.
“Revendication and Title-Washing
186. The Concept of Title- Washing – Whenever any titulary of a right to
revendicate loses the right to do so on one of the bases outlined in this
section, it is important to determine whether all other rights to revendicate
the corporeal moveable in question necessarily must also be lost. In many
cases, the owner’s loss of a right to revendicate occurs because another
person has acquired a titre nouveau; here, as a general principle, all existing
rights to revendicate would also disappear. In other cases, the loss of the
right to revendicate is relative to the titulary of the right, and no titre nouveau
is created; here it is necessary to establish which other rights are not com-
promised by any given creditor’s inability to revendicate.
448Arts 1637-1640 and 2005 C.C.L.C.
449Morin v. Paquin (1968), [1968] R.P. 332 (Prov. Ct).
450Vachon v. Area Decal Inc. (1971), [1971] R.P. 27 (Prov. Ct).
45 Enterprises Saillant et Fils v. Cti (1974), [1974] C.S. 380.
452Art. 1650.4 C.C.L.C.
453
See art- 1640(2) C.C.L.C. Once the goods of a third party are no longer on the premises,
they are free of the lessor’s privilege.
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[Vol. 32
a. Where Title Is Washed
187. Original and Derived Title – Many of the limitations on the action
in revendication reviewed above are a direct consequence of a mutation of
title. That is, while there are some rights of ownership which are original,
in that no person is directly a prior owner of the goods, 454 most rights of
ownership are derived from a transfer of ownership. It is only in cases of
derived ownership, therefore, that the question of title-washing can arise.
Hence it is necessary to determine when a derived title gives the acquirer
a titre nouveau. Moreover, in certain cases where title does not pass, the
owner’s loss of the right of revendication implies a similar loss by all other
titularies of such a right. Here, while no titre nouveau is created, the law
generalizes the partial expropriation of the owner’s title.
188. The Creation of a Titre Nouveau or Its Equivalent – The most obvious
cases where an owner acquires a titre nouveau occur when an object loses
its character as a corporeal or as a moveable. All rights of revendication,
with the exception of those of banks,455 disappear when an object is im-
mobilized by nature. Moreover, only the right of revendication given to
banks, transferees and commercial pledgees survives immobilization by des-
tination.456 Where title is transferred by accession a similar regime is ap-
plicable: only certain secured creditors may continue to exercise their rights.457
In cases where a moveable becomes incorporeal, all rights to revendicate
are lost, even though certain secured creditors may claim rights in the re-
sulting incorporeal proceeds. That is, apart from modem non-possessory
securities, a material transformation of a corporeal moveable washes title.
A titre nouveau is also created in any contract or deed translative of
ownership, yet such contracts almost never operate to extinguish other real
rights, 458 rights of certain creditors based on possession (for example, the
exceptio non adimpleti contractus and the right of retention) or rights of
administrators. On the other hand, the unpaid vendor’s right of revendi-
cation and the claim of the title creditor are extinguished in such cases. 459
Where title is transferred by effect of law –
expropriation, judicial sale,
acquisitive prescription and sale by a prior transferor in possession –
the
titre nouveau is a washed title.
454See Marty & Raynaud, supra, note 170, nos. 407-18.
455Bank Act, supra, note 13, s. 178.
456Bank Act, ibid., ss 178(3), 179(2); Bills of LadingAct, supra, note 13, s. 11(2); art. 1979h
C.C.L.C.
4 57Bank Act, ibid., s. 179(7); Bills of Lading Act, ibid., s. 11(2).
458Thus, the transfer of title resulting from an informal consumer sale or from an illegal
459See art. 1999(3) C.C.L.C.
condition in a will does not wash title.
19861
ENFORCING RIGHTS IN MOVEABLES
The anomalous case (that is, where title is washed although no titre
nouveau is created) occurs in respect of protected and partially protected
sales. For here, the buyer’s right to resist revendication by the true owner
can be set up against any person also deriving rights from that owner, except
a bank holding section 178 security. 460 It cannot, however, be used to defeat
revendication by the seller (either under article 1494 or article 1998 C.C.L.C)
who is claiming against his own buyer.
It follows that there is no necessary coincidence between the generation
of a titre nouveau and a washed title. Each type of washed title is justified
on a separate basis.
b. Where Title Is Not Washed
189. Loss of Special Rights of Revendication –
In most cases, where an
individual other than the titulary of a real right is attempting to revendicate,
but loses that right, this will not have a generalized effect. Thus, when a
particular right is time-barred, fofeited for abuse, or is renounced, other
rights to revendicate will not automatically fall.46 1 Similarly, where reven-
dication is based on possession or some other factual condition, and a
creditor no longer meets that condition, the loss of the special right to
revendicate does not automatically compromise other real rights. In each
case the reason the action is lost does not relate to any transformation of
the object or general mutation of title. Hence, no other rights should be
affected.
190. Partial Losses of the Right of Revendication –
In several cases the
right of a titulary of the action in revendication is only partially lost. For
example, where an undivided co-owner loses his rights in certain objects
following partition, that loss has no impact on the ability of any person not
deriving rights from him to revendicate.462 A similar result occurs in respect
of informal consumer installment sales. The partial loss or postponement
of the action in revendication has only a relative effect. Its cause cannot be
generalized so as to limit revendication by other plaintiffs.463
46 0See Macdonald, supra, note 337 at 1043-51; but see cases cited therein.
46 tHowever, this is not the case where these other rights are derivative of the right which is
extinguished. This would occur, for example, if a usufructuary were to grant a right of use for
a period exceeding the length of the usufruct.
462That is, while the extinction of the co-owner’s rights would extinguish any usufructs he
has granted (but, by virtue of art. 1966a C.C.L.C., not any pledges), it does not affect any
rights in the property antedating his own.
4631n other words, the limitation on revendication is relative to particular debtors and cred-
McGILL LAW JOURNAL
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c. The Relativity of Title- Washing
191. The Problem of Registered Rights – Much of the theory of revendi-
cation, not only as concerns potential plaintiffs but also as concerns limi-
tations of the actions, can be derived directly from paragraph 2268(1) C.C.L.C.
But if possession has, in principle, traditionally been seen as the best in-
dicium of title to corporeal moveables, in modem times its claim to priority
has come under assault. Both in France and in Quebec, various techniques
for registering rights in corporeal moveables have undermined the scheme
of the Code.464 As a result, generally applicable principles relating to the
creation of a titre nouveau or to the washing of title are discarded in special
legislation which gives registered rights (usually in the context of a security
agreement) a permanence greater than the right of ownership itself. That is,
even if in certain cases the material transformation of an object or the forced
legal mutation of title can extinguish all ordinary rights of revendication
(including that of an owner), registration under the Bank Act or the Bills of
Lading Act often will preserve a security device which gives rise to reven-
dication. It follows that even where the Code presumes that title is washed,
in certain cases only a relative effect is produced.
D. Exercise of the Action in Revendication
192. Translating Rights into Actions –
In the preceding sections an
attempt has been made to discern the limits of the action in revendication
by identifying which plaintiffs are, in principle, vested with a right to re-
vendicate, and by enumerating the conditions under which the right to
revendicate may be lost, devalued or postponed. But the action in reven-
dication is a judicial recourse: it is the procedural translation of an abstract
right and is subject to the normal constraints of all actions. Hence, it is
necessary to consider who has carriage of the action in any specific case,
who is to be the proper defendant to the action, and how the action is, in
fact, to be brought.
1.
The Plaintiff
193. Multiple Plaintiffs – The primary function of the action in re-
vendication is to vindicate ownership by the recovery of possession.465 Yet
it is frequently the case that several persons having the right to revendicate
may bring judicial proceedings concurrently. Three rather complex examples
will illustrate how this may be so. Suppose that the depositary of an object
over which the institute of a substitution has given a section 178 security,
or that the repairer of an object over which a usufructuary has given a
commercial pledge, or that the lessee of an object over which a conditional
464See Marty & Raynaud, 3upra, note 170, nos. 425-26.
465Bouloc, supra, note 1, no. 1; Service Finance Corp. v. Decca Radar Canada (1967) Ltd
(1971), [1971] C.A. 664 at 665.
1986]
ENFORCING RIGHTS IN MOVEABLES
purchaser has given a “floating charge”, come to be wrongfully dispossessed
by a third party. In the first case, the depositary, bank, institute and sub-
stitute may each claim a right to revendicate. In the second case, the repairer,
commercial pledgee, usufructuary and bare-owner may each revendicate.
In the third case, the lessee, conditional purchaser and trustee for bond-
holders all have at least a plausible claim to revendicate, along with the
conditional seller.
The question which arises, therefore, in all such cases where there is a
multiplicity of rights to revendicate, is whether the action in revendication
is vested in only one plaintiff. And, if so, who is titulary of the action? On
the other hand, if all titularies of the abstract right to revendicate are also
titularies of the action in revendication, after joinder of actions under articles
66 and 67 C.C.P. or joinder of parties under articles 216 to 222 C.C.P.,
which party has carriage of the action, and to whom will the object under
contestation be awarded?
Because the civil law historically has denied the right of revendication
to certain persons having the best right to physical control of an object (for
example, lessees, borrowers and buyers in possession whose ownership is
suspended by a term), it would seem that this criterion has not heretofore
been determinative. But, since the goal of the action is physical control of
an object, one might argue that the owner who has granted a usufruct or
who has pledged his object should not have a preemptive right to the action.
In other words, it would seem that carriage of the action in revendication
cannot be grounded either in abstract legal right, or in any concrete defacto
right to custody of an object.466
191. Importance of the Attachment in Revendication – From a procedural
point of view, the question of who has the carriage of an action in reven-
dication is less significant today than it formerly was. This is because the
object being revendicated will invariably have been seized before judgment,
and the respective rights of competing revendicating plaintiffs will have
been organized prior to trial.467 If the efficient protection of lawful rights
in or upon, and the expeditious recovery of, corporeal moveables is the
policy goal to be pursued, then sorting out who has carriage of an action is
less important than deciding who may bring an attachment in revendication.
466 0f course, the person who can establish that he last had the object in his custody is
presumed to have possession rather than mere detention; and he who has possession is pre-
sumed to be owner. See Cie de publication de La Presse v. Terres laurentiennes Inc. (1970),
[1970] R.P. 333 (Prov. Ct).
467Nevertheless, the action in revendication need not be accompanied by an attachment in
revendication. See Hamelin v. Vulcan Steel Architectural Construction, Ltd(1950), [1950] B.R.
766.
REVUE DE DROIT DE McGILL
[Vol. 32
In all events, courts now seem to be permitting any person with a right
of revendication, whose title is being denied by a third party, to bring an
attachment in revendication for the purpose of protecting his rights.468 Should
a contestation about who has the best right to custody later arise, the court
would adjudicate upon that issue as a subsidiary matter. In no case does it
appear that the defendant to an attachment in revendication can plead, as
against any person vested in abstracto with a right to revendicate, the fact
that some other person has a better right to physical control of the object.469
192. Attributing Custody – While courts have had little trouble in con-
cluding that any party who makes out a case for revendication may reclaim
an object from a wrongfully holding third party, they have rarely been
confronted with litigation between multiple plaintiffs. This is because, ex-
cept as concerns competing security devices, the respective rights of the
parties will be established by contract. For example, the usufructuary in
conflict with a bare-owner need only establish his contractual right to the
object in order to prevail. 470 Similarly, the dispossessed depositary will pre-
vail over all but his own depositor.47′ Again, the wrongfully dispossessed
pledgee need only prove the contract of pledge in order to take precedence
over an owner who reclaims his object from a third party. The competition
between conditional owners, or between owners and secured creditors, is
more complex. Nevertheless, it would follow that wherever the conditional
owner or secured debtor is not in default, custody should be attributed to
the person who was last in possession of the object. Between competing
secured creditors, of course, the priority rules of the Civil Code or special
statute creating the security device will govern who may take possession for
the purposes of realization.
Courts face more difficult issues where the titulary of a right to reven-
dicate with the best claim to immediate custody refuses to act. Consider
the case where a usufructuary refuses to act and the bare-owner is claiming
a “reversionary” right of use, or the case where an institute refuses to claim
an object from a third party and the substitute wishes to do so. Two theories
may be advanced to support the claims of the bare-owner and of the sub-
stitute: one might say that the refusal of the usufructuary or of the institute
to act constitutes an abuse leading to forfeiture; or one might claim that the
presumption of paragraph 2268(1) C.C.L.C. means that the only sure way
to interrupt prescription by the wrongful possessor is to deprive him of
custody. Of course, in any claim by a “reversionary” plaintiff, those col-
lateral rights vesting in the usufructuary or institute (such as fruits, or dam-
468See Discotheque et Golf Lafontaine, supra, note 139.
46’See Prescotte v. Goyette (1945), [1946] C.S. 147.
470Kiinber v. Judah, (1885), 2 M.L.R. 86 (Ct Rev.).
4 71Art. 1810 C.C.LC.
19861
ENFORCING RIGHTS IN MOVEABLES
ages for loss of enjoyment) could not be claimed directly. Unlike custody
of the object, they are exclusively vested in the titulary of the right ofjouiss-
ance.
2.
The Defendant
In Quebec law today it is generally accepted
193. Defendants in Possession –
that the only proper defendant to an action in revendication is the person
with actual possession. 472 This restriction flows from the in rem character
of the action.473 Thus, in Morgan, Ostiguy & Hudon Lt~e v. Sun Life As-
surance Co.474 the Court of Appeal explicitly refused to transform an action
in revendication against a defendant who had in good faith disposed of a
corporeal moveable into an action in damages.
In other words, if, without fraud or fault of a defendant in revendication,
an object once in his possession has passed into the possession of a third
party, the defendant may successfully resist the action in revendication. 475
This conclusion would apply whether the object was sold, 476 given or
pledged 477 in good faith to another. Only the new acquirer or the pledgee
is an appropriate defendant party.
194. Defendants Notionally in Possession – Nevertheless, under the former
Highway Code,478 the Court of Appeal twice permitted an action to proceed
against an automobile salesman no longer in possession of the object being
revendicated. In both cases, the plaintiff was unaware of the resale and had
framed his action in the alternative as a claim in damages against the sales-
man’s insurance fund. 479 These cases cannot, however, be seen as reflecting
a general exception to the principle that the defendant must be in possession;
rather, they are grounded in the special provisions of the Highway Code.
A similar result, substituting damages for revendication, has been reached
in certain cases where the object has passed beyond the writ of the court
(where, for example, it is out of the province),480 or where it has been
completely consumed 48′ or physically has changed character.482 In each case,
472Art. 2268(1) C.C.L.C.; Caron, supra, note 271 at 413-416. See below, no. 195.
473 Bouloc, supra, note 1, no. 175.
474Supra, note 328 at 476.
475Caron, supra, note 271 at 416.
4 76 0ttawa Beach Motor Co.v. Barr6 (1928), 45 B.R. 157.
477Lord v. Robin (1924), 39 B.R. 426.
4 78 Motor Vehicles Act, R.S.Q. 1941, c. 142, s. 21; and Highway Code, R.S.Q. 1964, c. 231,
s. 23, respectively.
479Rocheleau Auto Lte v. Guay (1963), [1963] B.R. 770; Garage W. Martin Lt~e v. Industrial
Acceptance Corp. (1969), [1970] C.A. 43.
480Hamelin v. Vulcan Steel Architectural Construction, Ltd, supra, note 467.
4 8 1Econ Oil Co. v. Eddy Veilleux Transport Ltte, supra, note 426.
482Fortin Foundry Ltd v. Palmer Brothers, supra, note 406.
McGILL LAW JOURNAL
[Vol. 32
the court found that the defendant was still notionally owner. In the first,
the only impediment to revendication was the jurisdictional limit of the
court’s writ: the out-of-province mis en cause was in possession but had not
yet become owner. In the second, the defendant himself consumed the object
(fuel oil) and derived its economic benefit. In the third, various iron castings
had been broken down into scrap metal and resold as such.
Some earlier cases seemed to permit a transformation of revendication
into a damages claim on a more liberal basis. In two cases it was held that
a previous good faith possessor who had also disposed in good faith was
liable in damages.483 In both cases the court was not concerned to find fault
by the defendant in the disposal. In view of the Morgan, Ostiguy & Hudon
Lte v. Sun Life Assurance Co.484 case, however, these two cases would
probably be decided differently today.
195. Defendants Having Only Custody – The law of Quebec follows the
law of France in requiring that the action in revendication ultimately be
directed against the person who has possession, even though physical de-
tention is in the hands of a third party.485 Thus, the courts have upheld an
action brought against an individual who claimed to be owner of a corporeal
moveable actually held by a third party.486 Where the plaintiff knows that
the person with possession (the seller under conditional sale, lessor, or com-
mercial pledgee) is not the person with actual custody, he must also bring
an attachment in revendication against the precarious possessor (holder) at
the same time as he brings his action.487 That is, while a seizure before
judgment is not normally required as an adjunct to the action in revendi-
cation, where defendant and custodian are distinct, judicial process against
both is required. If in the first instance the action is brought against a mere
holder, the action can be maintained providing that the holder or the plain-
tiffimpleads the actual possessor, once he becomes aware of the defendant’s
precarious title.48 8 Presumably, when the possessor is impleaded, an at-
tachment in revendication against the holder would then be necessary.
196. Defending theAction – As a result of several recent cases, it has become
standard practice to implead both the party claiming possession (the owner,
usufructuary, or pledgee) and the party with custody (a lessee, retention
claimant or depositary). The defendant to the action will normally succeed
483Alumhium Company of Canada v. Selig (1952), [1952] C.S. 455; Goldsmith, Smelting &
Refining Co. v. Roy (1922), 34 B.R. 520.
484Supra, note 328.
485See Bouloc, supra, note I, no. 175; Ortscheidt, supra, note 1, no. 101.
486B6lisle v. Poliquin (1917), 52 C.S. 346.
487Dargus v. Irwin (1937), 75 C.S. 47.
488Vachon v. Roy (1921), 32 B.R. 88.
1986]
ENFORCING RIGHTS IN MOVEABLES
if he can establish that he has neither possession nor custody of the object.489
Only exceptionally does the action lose its in rem character. First, if the
defendant has fraudulently alienated the object490 or otherwise committed
a civil wrong,491 he will be condemned to pay its value. Secondly, if the
special insurance provisions of the Highway Code are applicable, the au-
tomobile salesman no longer in possession will be required to disgorge the
object’s value.4 92 Thirdly, if the defendant notionally retains possession (either
of the object or its value) but cannot render the object, he will be required
to pay its value. 493 In all other cases, the court will either condemn the
defendant to render the object, or will reject the plaintiff’s action.494
3.
Procedural Considerations
197. Nature of the Action – Because revendication is, in principle, a real
action, the plaintiff brings suit with the service of a writ, in which he de-
mands return of an object. The action may, therefore, be distinguished from
any proceeding in specific performance or in restitution of an object, where
the claim lies by virtue of a contract. 495 Typically, the action will also be
joined to an attachment in revendication, although this is not necessary
where the action is brought against a possessor who has physical custody
of the object.
198. Burden of Proof – As a consequence of paragraph 2268(1) C.C.L.C.,
the plaintiff in revendication assumes the burden of proof, although this is
a lesser burden than it would be in France.496 As noted earlier, the effect
of article 2279 C.N. is to require the plaintiff to establish not only his own
right, but also the fact that the object has been lost or stolen.497 In Quebec,
however, the defendant benefits only from a presumption as to the quality
of his possession. That is, once the plaintiff establishes his own prior title
to revendicate, the defendant must then prove acquisitive prescription 498
489Morgan, Ostiguy & Hudon Lt& v. Sun Life Assurance Co., supra, note 328.
490Ortscheidt, supra, note 1, no. 102.
49 1Garage W. Martin Lte v. Industrial Acceptance Co., supra, note 479.
492Rocheleau Auto v. Guay et Penot (1963), [1963] B.R. 770.
493Hamelin v. Vulcan Steel Architectural Construction, Ltd, supra, note 467; Econ Oil Co.
v. Eddy Veilleux Transport Lte, supra, note 426.
4941n Vachon v. Roy, supra, note 488, the court refused to permit the defendant to keep the
object upon consigning the value as established in subsidiary conclusions to the plaintiff’s
action in revendication.
495Bouloc, supra, note 1, no. 3.
496Bouloc, ibid., nos 176-78; Orscheidt, supra, note 1, nos 91-98 and 102-12.
497Mazeaud, supra, note 163, no. 1552.
498Rogers v. Goldberg (1948), [1949] C.S. 74.
REVUE DE DROIT DE McGILL
[Vol. 32
or the exceptions of paragraphs 2268(3) and 2268(5) or article 1027 C.C.L.C. 499
Should the plaintiff succeed in proving both a defect in the defendant’s title,
as well as his own title, he will prevail. 500
In the cases where the defendant attempts to plead paragraph 2268(3)
C.C.L.C., it is not necessary for the plaintiff to consign the purchase price
paid by the defendant 50′ or even to prove loss or theft. However, by failing
to do so, the plaintiff runs the risk of having his action dismissed under
paragraph 2268(4) C.C.L.C., in the event the defendant proves his good
faith purchase of the object in a protected sale.502 In other words, once a
protected purchase is made out by the defendant, the burden of proving
loss or theft also lies on the plaintiff.
The plaintiff in revendication who is not owner (and who cannot claim
some other real right) and the defendant who pleads a defence other than
that flowing from the presumption of paragraph 2268(1) C.C.L.C. both as-
sume the burden of proving their particular allegations. For example, a
revendicating lessee will have to prove not only his own title but also the
title of his lessor, should the defendant have succeeded in establishing the
precarity of the plaintiff’s detention. Similarly, a revendicating unpaid ven-
dor must prove that he falls within each of the conditions for revendication
elaborated by articles 1998-1999 C.C.L.C. Again, an owner under suspensive
condition must prove not only his prior possession, but, should his true
status be revealed, his entitlement to custody under his purchase contract
as well. Only the depositary (or a holder analogized to depositary) need not
establish his author’s title, once the precarity of his own possession is proved.50 3
The defendant who pleads immobilization, accession, a protected consumer
sale, a right of retention or a contractual defence must prove his special
defence, in the same manner as he would under article 1027, or paragraphs
2268(2), 2268(3), or 2268(5) C.C.L.C.
199. Conclusions ofthe Action –
It is common in an action in revendication
to request damages in the alternative, should it not be possible to restore
499See Farmers Insurance Co. of Iowa v. Gravel (1926), 41 B.R. 370, aff’d (1926), [1926] 3
D.L.R. 699 (S.C.C.); Commercial Acceptance Corp. v. Tournay (1964), [1964] B.R. 896; Belisle
v. Caron (1942), [1942] C.S. 160; Joyal v. Murphy Automobile Inc. (1955), [1956] C.S. 311;
Lapointe dit Desautels v. Charlebois, supra, note 425.
50OThis includes establishing title, which by the operation of art. 2268(1) C.C.L.C. the plaintiff
may do simply by proving his prior possession (Bouloc, supra, note 1, no. 177) as well as the
identity of the objects revendicated (Ortscheidt, supra, note 1, no. 99). See generally Assh v.
Cit de Lvis, supra, note 324.
50 Lake Megantic Pulp Co. v. Taylor(1935), 41 R.L. 141 (C.S.); Laforest et Frres v. Dagenais
502Morin v. Picht (1933), 71 C.S. 195.
503This is because the depositary benefits from art. 1806 C.C.L.C.
(1960), [1961] C.S. 415.
1986]
ENFORCING RIGHTS IN MOVEABLES
the object.504 This conclusion is entirely separate from an action for damages
resulting from deterioration of the object or from the loss of its use value.
In these latter cases, the revendicating plaintiff must establish fault on the
defendant’s part. 50 5 Where” return of the object is not possible, the courts
have occasionally held intermediate possessors liable in damages –
invar-
iably for the price to be reimbursed under paragraph 2268(4) C.C.L.C.50 6
In actions in revendication against the defendant in possession, which con-
clude in the alternative for damages, the courts have held that the successful
plaintiff cannot be forced to accept damages 507 unless he expressly puts the
defendant to his option.508
200. Subsidiary Proceedings – Typically, a defendant in an action in re-
vendication will implead his author in title. Where the defendant, such as
a lessee, holds a precarious title, he will claim damages from his lessor under
paragraph 1604(3) and article 1608 C.C.L.C. In the case of contracts trans-
lative of title, the defendant who is obliged to give up the object will plead
his recourse in warranty against eviction under article 1508 C.C.L.C. Such
a recourse in warranty may be pleaded all the way up the chain of title to
the thief or finder.50 9 Where any defendant in warranty is insolvent, the
creditor of that seller alone bears the loss.510
Where a defendant who is reimbursed by the revendicating plaintiff
surrenders the object, he has in principle no recourse against his author in
title.5 1 But it may be that the object has increased in value, that he has
improved it, that he has suffered legal costs or that he must render up certain
fruits. In all such cases, the good faith possessor may claim damages from
his author, assuming that he has not by his own act prejudiced his seller’s
rights. 512 He may also claim reimbursements for improvements from the
504Hamelin v. Vulcan Steel Architectural Construction, Ltd, supra, note 467.
505The defendant could be the ultimate possessor (as in Econ Oil Co. v. Eddy Veilleux
Transport Lte, supra, note 426), or an intermediate holder (as in Aluminum Co. of Canada
v. Selig, supra, note 483).
506Fortin Foundry Ltd v. Palmer Brothers Ltd, supra, note 406.
507Vachon v. Roy, supra, note 488.
508Accessoires d’Autos Laurentien Lte v. Churchill Constructors, supra, note 171; Tremblay
v. Duval (1931), 70 C.S. 239.
509 Ortscheidt, supra, note 1, no. 136.
510Bouloc, supra, note 1, no. 182.
511He receives the price he has paid. If the object is worth less, he keeps the profit. See
512Bouloc, supra, note 1, no. 182. One example of this is surrendering without demanding
reimbursement under art. 2268(4) C.C.L.C. See Pich, v. Laurentide Finance Co. (1982), 1983
C.A. 301.
Mazeaud, supra, note 163, no. 1592.
McGILL LAW JOURNAL
[Vol. 32
plaintifP 13 and may retain fruits received prior to becoming aware of the
precarity of his title. 514
The rights of the owner who must reimburse are more problematic. Of
course, he has no claim against anyone except the original finder or thief
to obtain repayment of his expenses. He has the object back, with improve-
ments. On the other hand, he will always have an action in damages against
the finder or thief to recover the amount paid to the possessor.51 5 But, will
an action lie against intermediate possessors, most notably against the mer-
chant who sold the object? Courts in Quebec, with rare exceptions, 516 have
refused such an action unless the owner can prove a fault by the intermediate
holder or seller.517 The owner is neither subrogated in the holder’s warranty
against eviction against the seller,518 nor may he claim unjust enrichment
from the intermediate holder.519 The fault required may arise either from
the holder’s bad faith or from negligence, but will in all cases be grounded
in article 1053 C.C.L.C. and not in any correlative liability attaching to the
action in revendication. 520
4.
Situating the Action in Revendication
201. Revendication, Specific Performance and Damages – While the action
in revendication is the primary recourse for vindicating rights in corporeal
roveables, it co-exists with other actions. Thus, to appreciate the true re-
gime of revendication, and especially to be able to assess whether judicial
and legislative uses of the term are always exact, it is necessary now to
examine other recourses tending to the specific recovery of corporeal move-
ables and to the action in damages. For only by situating a real action in
context with personal actions may its necessary attributes be identified.
Moreover, because the object of the action is to have the court attribute
physical custody of a corporeal moveable, its availability need not be iden-
tical to other actions (such as a recourse in damages) or proceedings (such
as the attachment in revendication) which do not require the court to un-
513Farmers Insurance Co. of Iowa v. Gravel, supra, note 498.
514Art. 412 C.C.L.C. He is not obliged to set these off either against the claim for expenses
against the owner, or against his claim in warranty against his seller.
5151Bouloc, supra, note 1, no. 183; Ortscheidt, supra, note 1, no. 137.
516See, e.g., Aluminium Company of Canada v. Selig, supra, note 483.
517See Morgan, Ostiguy & Hudon Lt~e v. Sun Life Assurance Co., supra, note 328; Econ Oil
Co. v. Eddy Veilleux Transport Lt~e, supra, note 426; and Cholette v. Bourbonnais (1948),
[1949] C.S. 36.
51 Bouloc, supra, note 1, no. 184; Ortscheidt, supra, note 1, no. 138; Martineau, supra, note
274, no. 169.
paid to obtain possession.
519 Ortscheidt, supra, note 1, no. 139. This is because, had he acted earlier, he need not have
520See, e.g., Morgan, Ostiguy & Hudon Lte v. Sun Life Assurance Co., supra, note 328.
1986]
ENFORCING RIGHTS IN MOVEABLES
95
dertake such a definitive attribution. Once again, only by locating the action
in the context of these other recourses is it possible to determine whether
any modem extensions to the actions (both in terms of its availability to
certain plaintiffs and in terms of the purpose to which it is directed) are
justifiable. This task will be undertaken in Part Three of this study.
