Bijural Terminology Records

Common Law

void

Civil Law

may not be set up against

Title of the Legislative Text

Bankruptcy and Insolvency Act, R.S., c. B-3

Provision

  91. (1) Any settlement of property made within the period beginning on the day that is one year before the date of the initial bankruptcy event in respect of the settlor and ending on the date that the settlor became bankrupt, both dates included, is void against the trustee.

(2) Any settlement of property made within the period beginning on the day that is five years before the date of the initial bankruptcy event in respect of the settlor and ending on the date that the settlor became bankrupt, both dates included, is void against the trustee if the trustee can prove that the settlor was, at the time of making the settlement, unable to pay all the settlor's debts without the aid of the property comprised in the settlement or that the interest of the settlor in the property did not pass on the execution thereof.

Problem

In this provision, the term "void" in the English version is inappropriate for the civil law audience. When seeking to avoid property escaping the trustee's seisin, and not to rule on the validity of the contracts, the expression used in civil law in English to convey the notion of non-opposability is "may not be set up against".

Solution

In the English version, the terms "or in the Province of Quebec, may not be set up against" are added to reflect civil law terminology. The statement that this expression applies only in the Province of Quebec is included to avoid any confusion. The term "void" is maintained for common law purposes.

Harmonized Provision

(Amendment to the English version only)

  91. (1) Any settlement of property made within the period beginning on the day that is one year before the date of the initial bankruptcy event in respect of the settlor and ending on the date that the settlor became bankrupt, both dates included, is void as against, or in the Province of Quebec, may not be set up against, the trustee.

(2) Any settlement of property made within the period beginning on the day that is five years before the date of the initial bankruptcy event in respect of the settlor and ending on the date that the settlor became bankrupt, both dates included, is void as against, or in the Province of Quebec, may not be set up against, the trustee if the trustee can prove that the settlor was, at the time of making the settlement, unable to pay all the settlor's debts without the aid of the property that was the subject of the settlement or that the interest of the settlor in the property did not pass on the execution of the settlement.

Federal Law-Civil Law Harmonization Act, No. 2, S.C. 2004, c. 25, s. 54(1).

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