La Cour suprême, la fiducie d'investissement et le prospectus

The possibility of establishing investment trusts in the Province of Québec was examined recently by the Supreme Court in the Higher case. Investment trusts, in Québec, are possibly created as a species of contract but as civil law trusts, they cannot be admitted. This point is well settled by the case. The court also examines the recourse in damages under article 1065 C.C. for inexecution of promises contained in a prospectus: the provincial courts were well familiar with recourses in delict in such cases but contractual relief, although suggested, was not clearly admitted. The case now offers a definite answer to this uncertainty

Les droits du cessionnaire à l'égard de la compagnie : « mandamus » et transfert d'actions

This commentary deals with the recourse available to a transferee of shares when the corporation refuses to execute the transfer in its books. The application of mandamus in such a context is examined as are various restrictions on transfer contained in shareholders' agreements. The power of directors to refuse to register a transfer must be founded on a proper motive and where the court finds an impropriety at this level, it may enjoin registration by the issuance of a mandamus or an injunction

La responsabilité contractuelle du promoteur

When a promoter contracts in the name of a corporation to be formed, the question arises of knowing who will be liable on the contract. Whether the promoter of the corporation can be sought out for inexecution of the contract remains a vexed question since the famous Kelner v Baxter rules established over a century ago. In Quebec law, such rules are admitted by provincial jurisprudence but recent cases suggest alternative recourses to bind either parties. These are examined in this commentary

La Loi sur les connaissements, les reçus et les cessions de biens en stock : quelques problèmes substantiels

The recent adoption of An Act respecting the transfer of property in stock has raised once again the controversy on the exact nature of the rights acquired by the holder of a bill of lading and a warehouse receipt. This problem is a familiar one for the specialist in banking law who well knows the endless contradictions concerning the interpretation of article 178 of the Bank Act. In this instance, the provincial legislature wished to give to quasi-banks (credit unions) the same possibility of securing loans as that afforded to banks under federal legislation. By a rather clever set of new rules added to the provincial Bills of Lading Act, this result is attained and is predicated on the idea that the creditor obtains full title of ownership on the goods ceded to him in the contract of loan. However, even in common law jurisdictions, the complete transfer of title is rarely admitted in such transactions and in codifying this dubious interpretation of case law, the legislature is perhaps not simplifying an already muddled area of our private law. Viewed in a historical perspective, Quebec law on this subject tends to reconcile the rights of the endorsee with those of civil law institutions, i.e. pledge. One hundred years of jurisprudence stands to that effect, until the '50s, where common law ideas seem to have taken hold of the courts. The result is of course a little bewildering and the student of our laws must gather together all of his patience in the study of this area already described early in the century by Mignault as being a Chinese brain-teaser

De la lex scantinia aux récents amendements du Code criminel: homosexualité et droit dans une perspective historique

This paper deals with the legal approach to homosexuality throughout history, focussing on Roman law, French law up to the Revolution, English law till the mid-60's and finally, Canadian law from the French period up to the amendments to the Criminal Code in 1969. What lessons can be drawn from this analysis? A first conclusion is the increasing intolerance towards homosexuals as evidenced by laws that become more and more preoccupied with private morality and control of individual behaviour. Here, we notice the inverse trend in the Roman law tradition and the common law one, where cultural and religious differences explain much of this curious evolution. A second conclusion is the link established between deviant behaviour and all forms of « deviance » from official policies-thus, accusations of homosexuality are to be found in troubled periods of religious (heresies) and political turmoil. Finally, one notes that although the Medieval period is often considered as being particularly cruel in its treatment of homosexuals, this view would need important qualifications in light of the 20th century treatment of such persons, witness of course, the Nazi extermination

Les droits du mineur en vertu de la Partie VI de la Loi régissant les sociétés commerciales canadiennes

Transfers of shares in the private law of the Province of Quebec raise numerous questions. The rights of the bona fide transferee for value are not clearly settled by the Civil Code and the provincial Companies Act is silent on the issue. In the first part of this article, the author deals with the state of the civil law on the question, illustrating the discussion with a study of the rights of a minor to proceed against bona fide transferees generally and more specifically, under articles 297 and 1487 C.C. In the second part of the article, the question is viewed from the point of view of the federal legislation. Part VI of the Canada Business Corporations Act is studied in detail in so far as the rights of the minor are modified by the statute. This useful exercise indicates clearly the preference given by the federal Act to bona fide purchasers of securities and the rather precarious position of the true owner in questions of conflicting claims. Viewed from a larger perspective, this study reveals an important trend in recent legislative enactments : where traditional rules tend to protect property rights (nemo dat...), contemporary legislations seem to favour unduly the security of commercial transactions

Cession de créances et affacturage

Credit factoring has become over the years an important method of obtaining capital and adequate financing for medium size business. Although factoring imports a special relationship between the factor and his client, it is essential to keep in mind that the relationship with third parties is governed in such cases by the general rules of the Civil Code on assignment of book debts. The Faucher case discussed herein illustrates the applicability to factoring situations of the rules embodied in article 1571d) of the Civil Code

Le fiduciaire doit-il désintéresser les tiers créanciers privilégiés?

What, if any, are the trustee for bondholder's obligations when proceeding with the sale of a debtor's property ? Section 30 of the Special Corporate Powers Act is silent on the question of third party creditors in such a situation. Must we necessarily conclude for that reason that the trustee is not obliged to disinterest privileged claims ranking above his according to the rule of C.C. article 1994 ? This paper deals with this controversial subject. More than seventy years of provincial case-law has affirmed this duty while not being very precise as to its foundation. The general principles of civil law perhaps can indicate what would be the explanation for such a rule while giving an interesting point of view on what constitutes a privilege

Achat et rachat d'actions en vertu de la Loi régissant les sociétés commerciales canadiennes

The power to purchase its own shares by a corporation constitutes the most remarkable innovation in recent company legislations throughout Canada. This article deals primarily with the power to acquire shares under the Canada Business Corporations Act and the exercise of this power, subject to various conditions relating to the corporation's solvency and directors' duties. In a wider perspective, the rights of creditors of the corporation are analysed and the clear transition from a concept of the corporate capital as a trust fund for creditors to a concept of capital as a practical planning device emerges from the analysis