Commentaires concernant le contrat de société

Au chapitre du contrat de société et d'association l'Avant-projet n'entend pas modifier fondamentalement les institutions. Il se contente souvent de clarifier les droits des parties. Cet effort est louable et l'exercice est souvent réussi. L'Avant-projet est aussi généralement satisfaisant sur des points importants comme l'élimination de la distinction entre sociétés civiles et sociétés commerciales, même si le contenu juridique du nouveau concept d'entreprise reste à préciser. L'Avant-projet s'est attaqué aux définitions mêmes des sociétés et des associations. Les définitions proposées à l'article 2250 sont ambiguës et vont à l'encontre des définitions retenues aux articles 326 et 327 du Code. Sur ce point l'échec est total et compromet l'ensemble de la réforme. Une innovation mineure mais significative est signalée. Les articles 2270 et 2290 prévoient un mécanisme pour le règlement des différends sur l'évaluation des parts sociales. La nature de cette technique, expertise ou arbitrage, n'est cependant pas claire.The Draft Bill for reforming the Civil Code does not propose any fundamental change in the institutions of partnership or association. Most of all it clarifies the rights of parties — a worthy effort that has generally been successful. The bill is also quite satisfactory in its treatment of important points such as the elimination of the distinction between civil and commercial partnerships, even if the legal content of the new concept of an enterprise has yet to be specified. The bill has attempted to reformulate the definitions of partner ships and associations ; the definitions proposed in article 2250 of the bill are ambiguous and run counter to definitions contained in C.C. 326 and 327. On this point, failure is total and compromises the reform in its entirety. A minor but significant innovation is to be noted. Articles 2270 and 2290 provide a means for settling disputes by the assessment of a partner's share. The nature of this technique, whether by means of expertise or arbitration, is however not clear

La commercialité des immeubles : une théorie en construction

Until recently, the rule in Quebec was that an immoveable could not be the object of a commercial operation. For many years, this anachronic rule had major effects on a number of key sectors of the law. Although unanimously criticised by academics, it was still largely applied by the courts. In 1965, a new trend appeared with the key decision of Colonia Development v. Belliveau, according to which the Court of Appeal departed for the first time from the traditional pattern, applying a new test wholly based on the purpose of the parties in entering into the agreement and refraining, by the same way, from holding that contracts in respect to immoveables were per se a civil matter. Three recent decisions of the Court of Appeal confirmed this precedent and applied it to situations involving different aspects of immoveable transactions. These decisions repeatedly adopted the purpose test definitely prefering the subjective approach to commercial activities over the objective one. This settled another important controversy between academics. After a general review of the situation since the Colonia Development case, the article spots a new dark area in the field and tries to draw a new line between civil and commercial transactions, especially when an immoveable is concerned

Les réactions de la doctrine à la création du droit par les juges : le droit des entreprises

This paper attempts to survey the present state of the law and current trends in legal literature as regards the concept of enterprise in Quebec law. The legal concept of enterprise does not carry the same meaning for all legal scholars in Quebec. A more traditional group restricts it to cases where some type of legal entity is created as a subject of rights and liabilities. A modernist group is prepared to give legal recognition to the enterprise as the basic economic unit, having rights and duties on a broad societal scale. This latter approach, closer to the realities of economics, is obviously followed in federal and Quebec legislation, whether protective or interventionist, with the result that conflicting definitions of the enterprise have been used for many different purposes. Through an increasing body of published writings, Quebec legal scholars have been contributing to the rationalization and harmonization of commercial law in relation to the concept of enterprise. Judicial adherence to traditional views has sometimes prevented or slowed down the implementation of rules suggested by scholars. In some cases, though, bold judicial pronouncements have met with unqualified approval from the writers. In certain areas, administrative bodies such as regulatory agencies have clearly outdone the regular courts at creative and effective law-making. In spite of shortcomings on the part of legal writers, legislators and judges, a concept of enterprise is gradually emerging as the key element in the development of a more realistic system of commercial law

Le droit des valeurs mobilières et les placements privés

The overwhelming control of the different North American securities commissions over the capital market compels businessmen and corporate lawyers to a permanent search for new means to avoid the registration and prospectus requirements of the acts. The authors try in this article to analyse the private placement exemption which seems to be most frequently relied upon. They discuss its development since the United States Supreme Court's decision in Ralston Purina. They explain the pros and cons of the subjective « need to know » and the capability of investors to « fend for themselves » tests as well as their byproducts. The recent and certainly more objective standards adopted by the S.E.C. and Ontario are also discussed. Finally, the resale of the restricted securities acquired in a private placement transaction is studied. In this context, the Quebec law is hardly adequate and needs substantial clarifications

A learning architecture : developing a collective design pedagogy in Mumbai with Muktangan School children and the Mariamma Nagar community

A collective design pedagogy is an idea for a socially engaged learning practice that involves schoolchildren in the production of their city. How can children be involved in (re)designing their environment and work with the wider community, to democratize the city and develop practices of responsible citizenship? The case study is situated in Mumbai, where the changing population, economy and environment have created a need for more child-centred learning activities and pedagogical innovation. In collaboration with education NGO Muktangan School and the neighbourhood Mariamma Nagar, the research sets out a series of pedagogical experiments investigating the city’s potential to house socio-spatial active citizenship practices by children, school staff and the community, between 2012 and 2017. Four series of workshops included the same class of schoolchildren in observing, assessing and then transforming their environment. Using activities borrowed from architectural practice, they transformed their school and neighbourhood by designing interventions. Critical pedagogical, constructivist and co-design methods included the children in activating what Henri Lefebvre called the right to the city; the development of a collective design practice fuses learning with the environment. Children can become active citizens through design and work with local craft as a political design tool. The children identified well-being as the overarching itinerary for their design projects: they designed responses to problems such as open gutters, mosquitoes, fighting and bad language, lack of green spaces and insufficient waste management. This paper argues that children’s role as architects is pedagogical: with facilitation, they can be involved in the production of their current environment, develop their political identity, and foster their ability to communicate ideas. Co-design allows children to develop empathy, think critically and learn how to learn

Le contrat de placement de fonds : une valeur mobilière envahissante

This essay defines the concept of « investment contract » as used in the securities acts. It analyses the classical Howey test and the more recent « risk capital » approach as formulated by Sobieski and Hawaï Market. It is suggested that Howey consisted originally of the well-known, ever repeated classical test, and of an alternative approach based on risk. This last important element of Howey was mistakenly dropped by the Courts. It is submitted that the Howey test, regenerated and liberally applied, is dynamic and well adapted to cover all possible situations and precludes the necessity of a different definition. U.S. Courts increasingly use the « investment contract » concept as afar-reaching catchall definition. It is further submitted that the Canadian Courts, encouraged by the Supreme Court's decision in Pacific Coast Coin Exchange of Canada, might use the concept even more comprehensively than their American counterparts