OBSERVATIONS SUR LA CONCEPTION JUDICIAIRE DU ROLE DE LA JUSTICE CONTRACTUELLE EN MATIERE D’HYPOTHEQUE CONVENTIONNELLE

  • Elise Charpentier
Keywords: Jurisprudence, Civil Code of Quebec, Interpretation

Abstract

Inspired by a concept of contractual justice, the spirit behind the reform of the Civil Code of Québec was expressed in a set of provisions designed to protect vulnerable contracting parties. Accordingly, some provisions of the specific legal regime governing conventional hypothecs, such as Articles 2668, 2683, 2684, 2758, 2761, 2778 and 2779 C.C.Q., are based on a certain concept of contractual justice that plays a role both when the contract is formed and when it is executed further to a default by the debtor. Indeed, by restricting access to certain forms of hypothec by natural persons, the legislator wanted to shield them from the seizure of certain types of property and, indirectly, from going too far into debt. By ensuring that the debtor has an opportunity to cure his default and by giving him tools when he is faced with a creditor who wants to take hypothecated property in payment, the legislator sought to protect the debtor from impoverishment.

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Published
2010-09-01
Section
Legal Commentary