Immobilisation by destination of moveable
industrial machinery
James Marunczak *
The demarcation line between a moveable and a moveable rendered
immoveable by reason of its destination is not always well-defined.
Various criteria relevant to such a distinction have recurrently ap-
peared in Quebec jurisprudence and have been considered anew by
Fournier J. in the recently reported Superior Court decision of In re
Amedee Leclerc Inc.: Thibault v,. De Coster.’
The events precipitating the litigation may be briefly described.
The plaintiff Thibault had made a loan to Amedee Leclerc Inc. and
secured it by a hypothec on a saw-mill which the company owned.
The company subsequently went into liquidation and the plaintiff
applied for a declaration that by reason of a dation en paiement
clause in the deed of hypothec he was entitled to the saw-mill and
certain moveables on the premises of the saw-mill which he claimed
had been rendered immoveable by reason of their destination. Thus,
it fell to the learned Judge to ascertain which of the moveables had
been rendered immoveable; consequently, it became necessary to de-
termine the meaning and import of the term a perp6tuelle demeure
of articles 379 and 380 C.C.
The connotations which can be extended to a perpgtuelle derneure
and the ratiocinations on which they rest have been thoroughly and
exhaustively presented in the judgments of Taschreau J.2 and Kel-
lock J.3 in the 1957 Supreme Court of Canada decision in City of
Sherbrooke et al v. Commissaires d’Ecoles de Sherbrooke et al.4 Mr.
Justice Puddicombe, in the recently reported Bowling Jacques-Cartier
Lte. v. City of Jacques-Cartier – decision, concluded after analyzing
the Supreme Court and Appeal Court judgments arising out of the
City of Sherbrooke case 6 that there would seem to be two theories
* Of the Junior Board of Editors, McGill Law Journal; second year law student.
1 [1965] S.C. 266.
2 Fauteux and Abbott JJ., concurrinng.
3 Nolan J., concurring.
4 [1957] S.C.R. 476.
5 [1965] S.C. 39.
6 The Appeal Court decision Comm. d’Ecoles V. Cite de Sherbrooke is reported
at [1956] Q.B. 639.
INTo. 3 ]
NOTES
concerning the coloring which can be given to a perp6tuelle demeure;
the learned Judge has conveniently termed them the time theory and
the completion theory.7
According to the time theory 8 the relevant and ‘pertinent criterion
is one of time and 4 perpgtuelle demeure is to be interpreted as sig-
nifying “indefinitely” as distinct from “transiently”. Thus, in dist-
inguishing between moveables and immoveables by destination the
distinction must be made on an appreciation of whether the moveable
has been placed on an immoveable permanently as opposed to trans-
iently.
The completion theory 9 contemplates a situation where if a pro-
prietor of a building suitable for an industrial process places in it
machinery for the purpose of carrying on the process permanently
and not merely temporarily such machinery is considered to have been
placed & perpgtuelle demeure and becomes immobilized under article
379 C.C. whether or not any part of it falls within the first paragraph
of article 380 C.C. Also, it is of no significance, with respect to the
destination of the machinery and thus its characterization as moveable
or immoveable, whether the same building could be equally well de-
voted to some other industrial purpose; nor will the imnoveable
nature of the machinery be altered merely by some happening that
results in the abandonment of the intention to carry on permanently.
Furthermore the word attached in article 380 C.C. does not mean
physically attached but rather joined, united, annexed or appropriated
– affect6 –
to the immoveable.
In Thibault v. De Coster, Fournier J. first concludes that the
codifiers did not intend immobilization of moveables, such as the
moveable implements of a saw-mill, to be effected exclusively through
a physical or material attachment to the immoveable; this conclusion
is an echo returning from the judgment in the City of Sherbrooke
case. The learned Judge arrives at this conclusion by juxtaposing the
verbs placer and attacher and nothing that the codifiers used the verb
placer in enunciating the general rule of article 379 C.C. in contrast
to the verb attacher of article 380 C.C. Concluding that they did not
simply want to use diversified expressions he finds that they must
7 [1965] S.C. 39, at page 49.
S The time theory was enunciated in
the City of
Sherbrooke case by McDougall, Martineau and Gagn JJ., and was cited with
approval and further developed by Taschereau J., in the Supreme Court.
the Court of Appeal in
9 As developed by Kellock J. in the Supreme Court decision in
the City of
Sherbrooke case.
McGILL LAW JOURNAL
[Vol. 12
have expressed different thoughts in the two articles. Drawing sup-
port from Pothier, the learned Judge then concludes that the term
plac6 4 perp~tuelle demeure applies to the placing of moveables which
serve to complete the building according to its nature without the
necessity of physical attachment. This statement is highly reminiscent
of Mr. Justice Kellock’s words in the City of Sherbrooke case.
The learned Judge then proceeds to say that article 379 C.C., with
respect to moveable property serving the exploitation of a factory,
can be given the extensive interpretation of the doctrine and juris-
prudence of France :
En toute d~firence pour le postulat contraire, i1 apparalt au tribunal que l’on
peut donner chez nous i
l’article 379 C.C., concernant les biens meubles
servant h l’exploitation d’une usine, l’interprftation extensive de la doctrine
et de la jurisprudence frangaises.10
Further, he cites with approval the 1936 Superior Court decision of
Diamond Shoe and Turcotte v. C6t 11 in which it was held that the
second paragraph of article 379 C.C. is but the transposition of the
same disposition that is found in article 524 of the Code Napol6on;
he concludes consequently, that there is no reason for a difference in
interpretation between the French and Quebec articles.
Le paragraphe 2 de l’article 379 C.C. n’est que la transposition de la mame
disposition que l’on trouve b l’article 524 du Code Napolkon; il n’y a donc pas
de raison pour en diffirencier l’interpr~tation. 12
These contentions can be interestingly juxtaposed with certain
statements of the Supreme Court in the City of Sherbrooke case.
There in the notes of Taschereau J., is to be found the statement
that in France there are two ways by which a moveable object can
be rendered immoveable by destination. The first of these is through
article 524 of the Code Napol6on which provides for the so-called
doctrine of industrial and agricultural immobilization whereby a
moveable placed on an immoveable for its service even without any
physical attachment or without any necessity of permanency can be
immobilized by destination. The second of these is where it is physi-
cally attached to the immoveable , perp6tuelle demeure.
Taschereau J., found that the second of these immobilization
techniques exists unequivocally in Quebec law and that the first
technique of industrial and agricultural immobilization exists in Que-
10 [1965] S.C. 266, at p. 272.
11 (1936) 74 S.C. 264.
12 [1965] S.C. 266, at p. 273.
No. 3]
NOTES
bee law provided the moveable is placed permanently, that is, with
the intention to keep it there so long as it remains useful, but not
excluding the possibility of replacement or even removal in the future.
It is quite conceivable and indeed very desirable that the extre-
mely liberal criteria utilized in the Thibault decision in deciding
whether moveables had been rendered immoveable by reason of their
destination be a precursor and forerunner of the contemplated textual
revisions of the Civil Code now in progress. A revision of articles
380 and 379 C.C. incorporating the Thibault criteria would amount
to including the provisions of articles 524 Code Napoleon and thus
the theories of industrial and agricultural mobilization permitting
moveable property to be rendered immoveable by reason that it was
placed by the proprietor pour le service et l’exploitation de son fonds.
Using his criteria Fournier J. concluded that the moveables which
fell within the limits of immoveables by destination were all those
which were accessories of the plant, all those which contributed to
the production provided they were useful and necessary for the
exploitation of the plant.
