Bijural Terminology Records

Common Law

charge

Civil Law

charge

Title of the Legislative Text

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

Provision

  75. Notwithstanding anything in this Act, a deed, conveyance, transfer, agreement for sale, mortgage, charge or hypothec made to or in favour of a bona fide purchaser or mortgagee for adequate valuable consideration and covering any real property affected by a receiving order or an assignment under this Act is valid and effectual according to the tenor thereof and according to the laws of the province in which the property is situated as fully and effectually and to all intents and purposes as if no receiving order or assignment had been made under this Act, unless the receiving order or assignment or notice thereof, or caution, has been registered against the property in the proper office prior to the registration of the deed, conveyance, transfer, agreement for sale, mortgage, charge or hypothec in accordance with the laws of the province in which the property is situated.

Problem

In civil law, the notion of "privilege"/privilège has been abolished and some "privileges"/privilèges have been replaced by prior claims or hypothecs. In the context of the present section, the term "hypothec" and its French equivalent hypothèque, already used, are sufficient for civil law purposes. The term privilège, as it is understood in common law in French, can be deleted since the notion is already covered by the term charge. Moreover, the notion of "lien" , which would normally be used to translate privilège for common law purposes, does not appear in the English version. Although used primarily for a common law audience, the term "charge"/charge also has meaning in civil law.

Solution
In the French version, the term privilège is deleted and the term charge is added to correspond to the term "charge" found in the English version.
Harmonized Provision

(amendment to the French version only)

 75. Notwithstanding anything in this Act, a deed, conveyance, transfer, agreement for sale, mortgage, charge or hypothec made to or in favour of a bona fide purchaser or mortgagee for adequate valuable consideration and covering any real property affected by a receiving order or an assignment under this Act is valid and effectual according to the tenor thereof and according to the laws of the province in which the property is situated as fully and effectually and to all intents and purposes as if no receiving order or assignment had been made under this Act, unless the receiving order or assignment or notice thereof, or caution, has been registered against the property in the proper office prior to the registration of the deed, conveyance, transfer, agreement for sale, mortgage, charge or hypothec in accordance with the laws of the province in which the property is situated.

Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 28

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