L'IMAGE DU CODE CIVIL ET L'IMAGINATION DU NOTAIRE (PT. 1)

Authors

  • RODERICK A MACDONALD

Abstract

The coming into force of the Civil Code of Québec has presented jurists with an unparalleled opportunity to reflect upon the role of private law in modern society. It also offers the occasion to consider the distinctive contribution that the notarial profession can make to the legal order. Many see the Civil Code of Québec as sounding the death-knell of the profession. Its apparent preoccupation with explicitly regulating all manner of activity previously governed more informally either by custom or contract, and its overweening attachment to the judicial process as a means for resolving civil disputes suggest that advocates rather than notaries are the privileged children of the legislature. But just as the Civil Code of Lower Canada gave rise to both notarial currents and litigation undercurrents, so to the apparent judicialization of the Civil Code of Québec gives rise to undercurrents for an enhanced notarial practice. Indeed, in combination with opportunities associated with traditional forms of practice, newly expanded institutions such as consensual arbitration and the trust suggest that under the Civil Code of Québec the notary can have a fundamental role as architect of the social order. Various patterns of practice through which notaries may perform the three basic tasks of this new role - the notary as creator, administrator and dispute settler- are explored in the last section of the article.

Keywords:

Legal Theory

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Published

1995-03-01

Issue

Section

Legal Commentary

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