Introduction to Civil Law Property
Looking at New Civil Code adopted Dec 1991
Old code similar to French Napoleonic code
In civil law cases reflect, apply, interpret the code, unlike in common law, where they make the law
· Some cases, however, are important and help interpret an issue and give examples of how a principle is applied
Important texts
Civil Code
Introduction aux droits des biens
Biens et proprieté
Code of Civil Procedure (many rules in here that tie closely to the civil code)
In any question dealing with property and patrimony, three elements are taken into consideration
1. The person – sujet du droit
2. The thing – la chose or l’object du droit
3. The nature of the relationship between the person or the thing – la nature du droit
In legal systems we recognize two persons
1. The human person (personne physique)
2. The legal person (personne morale) – associations, corporations
Personalité juridique (juridical personality): The ability to become un sujet du droit
Human persons – personne physique: every human being has juridical personality; section 1 of the civil code and also the charter of human rights and freedom
· Certain restrictions apply: art 6 every person is to exercise their civil rights in good faith
· Art. 7 no right may be exercised to injure someone else
· So having rights as a juridical person implies that there is a framework of how to exercise them that needs to be followed
· So every human being, when born, has juridical personality
· Human persons cannot lose juridical personality except through death
§ Before people could be declared civilly dead (mort civile) – this was replaced with civil degradation (in which case you couldn’t write a will etc); both of these have disappeared
Art. 1
Every human being possesses juridical personality and has the full enjoyment of civil rights.
Art. 6
Every person is bound to exercise his civil rights in good faith.
Art. 7
No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith.
Things, including animals, have no juridical personality
Legal persons (personne morale)
· Legal fictions, abstract non-material creations of the legal system
· E.g. a corporation
· The old code didn’t deal much with legal persons
· Art 298 entitles legal person with juridical personality
· Art 301 entitles them with full enjoyment of civil rights
· Their rights are distinct from those of the shareholders
· Art. 316 People who were responsible for the wrongdoing of the legal person (i.e. directors) can be held personally liable
§ People cannot use the legal person to act in bad faith
· There is a special kind of legal person: the crown and state authority; with very special rules for the rights that it can and cannot enjoy
Art. 298
Legal persons are endowed with juridical personality.
Legal persons are established in the public
Sometime we look at how it was incorporated
§ Given the nature on what it does
§ Whether the internal governance follows the proper regulations
There is a whole new article in the new code that deals with enterprises
· Art 1525.3 The carrying on of an organized economic activity by several person constitutes the carrying on of an enterprise
· Also arts. 2683, 2684, 2685 and 2686 deal with enterprises exclusively
· Enterprise is defined as an activity more than a legal person
Art. 1525.3
The carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property, or providing a service, constitutes the carrying on of an enterprise.
Art. 2683
Except where he operates an enterprise and the hypothec is charged on the property of that enterprise, a natural person may grant a movable hypothec without delivery only on road vehicles or other movable property determined by regulation and subject to the conditions determined by regulation.
Where the act constituting the hypothec is accessory to a consumer contract, it is subject to the rules as to form and contents prescribed by this Book or by regulation.
