Bijural Terminology Records

Common Law

n/a

Civil Law

prior claim constituting a real right

Title of the Legislative Text

Bankruptcy and Insolvency Act, R.S.C. (1985), c. B-3

Provision

  2. (1) In this Act,

...

"secured creditor" means a person holding a mortgage, hypothec, pledge, charge, lien or privilege on or against the property of the debtor or any part thereof as security for a debt due or accruing due to him from the debtor, or a person whose claim is based on, or secured by, a negotiable instrument held as collateral security and on which the debtor is only indirectly or secondarily liable;

Problem

In civil law, "privileges" have been abolished and some have been replaced with the notions of "prior claims" and "hypothecs". In particular, the prior claim granted to municipalities and school boards constitutes a real right. It is thus necessary to add the notion of "prior claims constituting a real right" in order to reflect the civil law.

Solution

In the English version, the phrase "prior claims constituting a real right" is added and in the French version, the phrase priorité constitutive de droit réel is added, for civil law purposes. The term "privilege" is deleted in the English version, but privilège is maintained in the French version, as it is the accepted term in common law for "lien".

Harmonized Provision

  2. (1) In this Act,

...

"secured creditor" means a person holding a mortgage, hypothec, pledge, charge or lien on or against the property of the debtor or any part of that property as security for a debt due or accruing due to the person from the debtor, or a person whose claim is based on, or secured by, a negotiable instrument held as collateral security and on which the debtor is only indirectly or secondarily liable, and includes

  • (a) a person who has a right of retention or a prior claim constituting a real right, within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec, on or against the property of the debtor or any part of that property

  • ...

Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 25

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