La problématique de l'opposabilité aux tiers des droits des créanciers aux contrats conclus à des fins de garantie et portant sur des biens mobiliers
The Act to amend the Civil Code and other legislative provisions as regards the publication of personal and movable real rights and the constitution of movable hypothecs without delivery, S.Q. 1998, ch. 5, has subjected to publicity, to have effect against third persons, onerous trusts constituted to secure the performance of an obligation, the rights of the lessor of a leasing and, in certain cases, the rights of the instalment seller, the right of redemption of the seller and the rights of the long term lessor. The interpretation of certain of these legislative provisions has given rise to a strong jurisprudential controversy on the characterization of these contracts and the effect of publicity in the context where the instalment seller and the long term lessor did not publish their rights in a timely manner and prior to the bankruptcy of their debtor. The present memorandum examines this issue by analyzing the relevant judgements rendered on this matter, and more particularly the judgements of the Supreme Court of Canada in Lefebvre (Trustee of); Tremblay (Trustee of), [2004] 3 S.C.R. 326 and Ouellet (Syndic de), [2004] 3 S.C.R. 348. Also examined is the amendment brought by the legislator to the definition of “secured creditor” in the Bankruptcy and Insolvency Act who tried, without success, to harmonize this notion with the Civil Code. It will therefore be demonstrated that the juridical status of these contracts concluded for security purposes has become more complex over the years.
Security Publication Opposability Instalment sale Long term lease