Bijural Terminology Records

Common Law

bankruptcy order

Civil Law

bankruptcy order

Title of the Legislative Text

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

Provision

  2. "bankrupt" means a person who has made an assignment or against whom a receiving order has been made or the legal status of that person;

Problem

The concept of "receiving order/ordonnance de séquestre" comes from common law and effects the transfer of possession of property from the debtor to the trustee. Given the application of subsection 71(2) of the Bankruptcy and Insolventcy Act which provides that the trustee becomes the owner of the bankrupt's property, it is not necessary to resort to the fiction of "receivership" to effect a transfer. Furthermore, the "séquestre" is only the depository of the property of a party to legal proceedings in Quebec civil law.

Solution

In the English version, the term "receiving order" is replaced by "bankruptcy order". In the French version, the term "ordonnance de séquestre" is replaced by "ordonnance de faillite".

Harmonized Provision

  2. "bankrupt" means a person who has made an assignment or against whom a bankruptcy order has been made or the legal status of that person;

Federal Law-Civil Law Harmonization Act, No. 2, S.C. 2004, c. 25, s. 7(4).

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