Bijural Terminology Records

Common Law

deed of trust

Civil Law

act constituting hypothecs

Title of the Legislative Text

Bell Canada Act, S.C. 1987, c.19

Provision

 14. (1) Every deed of trust creating mortgages, charges or encumbrances on the whole or any part of the property of the Company …

Problem

Incompatibility with a new principle of civil law and a problem of obsolete terminology are caused by the use of the term "deed of trust"/acte de fiducie. Although "deed of trust"/acte de fiducie are appropriate in common law in this context, the corresponding concept for civil law purposes is now "hypothec"/hypothèque.

Solution

The phrase "or, in the Province of Quebec, an act constituting hypothecs"/Dans la province de Québec, les actes constitutifs d'hypothèques is added to reflect the current civil law. Reference to the Civil Code of Québec is necessary here since the concept of a hypothec is also known to common law, but is not the notion intended here.

Harmonized Provision

 14. (1) A deed of trust creating mortgages, charges or encumbrances – or, in the Province of Quebec, an act constituting hypothecs – on the whole or any part of the property of the Company …

Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 62

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