Bijural Terminology Records

Common Law

mortgagee

Civil Law

hypothecary creditor

Title of the Legislative Text

Income Tax Act, R.S.C. (1985), c. 1 (5th Supp.)

Provision

  13. (21) Definitions. In this section,

...

"proceeds of disposition" of property includes

  • ...
  • (g) an amount by which the liability of a taxpayer to a mortgagee is reduced as a result of the sale of mortgaged property under a provision of the mortgage, plus any amount received by the taxpayer out of the proceeds of the sale, and
  • ...
Problem

In the English version, the use of the term "mortgagee" is problematic in that it refers only to common law. The corresponding concept in civil law is "hypothecary creditor" . In the French version, no such problem occurs since the term créancier hypothécaire is appropriate for both common law and civil law.

Solution

In the French version, the terms somme déterminée and somme n'est pas déterminée are respectively replaced by the terms liquide and créance n'est pas liquide. No change is required to the English version as it already reflects both legal systems.

Harmonized Provision

  13. (21) Definitions. In this section,

...

"proceeds of disposition" of property includes

  • ...
  • (g) an amount by which the liability of a taxpayer to a mortgagee or hypothecary creditor is reduced as a result of the sale of mortgaged or hypothecated property under a provision of the mortgage or hypothec, plus any amount received by the taxpayer out of the proceeds of the sale, and
  • ...

Income Tax Amendments Act, 2000, S.C. 2001, c. 17, s. 196(2)

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