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- Title
L'ÉQUITÉ JUDICIAIRE, DE L'OMBRE À LA LUMIÈRE : ARCHÉOLOGIE D'UNE EXCEPTION SINGULIÈRE AUX RÈGLES DE LA PUBLICITÉ IMMOBILIÈRE.
- Authors
Debruche, Anne-François
- Abstract
Quebec (P.G.) c. Developpements de demain removes the notion of tacit concession of superficies from article 2938 C.C.Q., even though the article unequivocally requires that the constitution of all real immovable rights be published. And yet superficies is undeniably a real immovable right since article 1009 C.C.Q. qualifies it as a modality of ownership. How then can this peculiar exception to the publication of immovable rights be explained? The author reveals the friable nature of the Court of Appeal's motives and, in searching for its true motives, undertakes its legal archaeology. She goes as far back as Delorme c. Cusson, an 1897 Supreme Court of Canada decision that prompted Quebec jurisprudence normalizing certain immovable encroachments by "observing" the creation or the implicit transfer of principal real immovable rights, such as superficies. It is in the context of this questionable transsystemic mimicry based on judicial equity that tacitly granted superficies are freed from the fundamental rules of publication of immovable rights. Delorme c. Cusson is thus the original sin committed against strict Quebec law in the name of the serpent of temptation, "equity", in the transsystemic garden of the Supreme Court of Canada--the fruits of which have since been reaped by Quebec judges.
- Subjects
QUEBEC (Province); TACIT consent; SOCIAL contract; JURISPRUDENCE; CIVIL rights
- Publication
McGill Law Journal, 2010, Vol 55, Issue 4, p819
- ISSN
0024-9041
- Publication type
Article
- DOI
10.7202/1000786ar