GIFTS AND CONTRACTS : A COMPARISON WITH QUEBEC CIVIL LAW.

• Author: Serafin, Stephane

INTRODUCTION

There are perhaps few distinctions more widely assumed within the Anglo-American common law tradition than the distinction between gifts and contracts. (1) Whatever might be said about the differences in the values which underlie each type of transaction, however, it is also widely known that most, if not all, civil law systems do not share the common law's classificatory approach to gifts. The case of Quebec's civilian private law provides a particularly clear example in the Canadian context: rather than amounting to a distinct legal category, as is the case in the other provinces and territories, the gift is presented by the Civil Code of Quebec (the "CCQ") as a contract by which one party, the donor, conveys property gratuitously to another, the donee. (2)

The implicit assumption, at least in many English-language sources, is that this classificatory divergence can be attributed primarily to the unique role of consideration as an essential element of a contract in common law jurisdictions, by contrast to its much more marginal role as a means of distinguishing between gratuitous and onerous contracts in those that follow civilian private law. (3) It is ostensibly for this reason that those authors who equate contract with a form of market or bargain-based arrangement have generally been dismissive of the civil law view of gifts, even within comparative accounts of gift law. (4) It is also for this reason that opponents of consideration in common law jurisdictions have tended instead to draw upon the example of the civil law in support of their arguments: they believe--wrongly--that the classification of gifts as contracts means that these legal systems generally enforce both executed gifts completed by means of delivery and promises of gift to which the common law typically denies any legally-binding effect. (5)

By contrast to the primary role attributed to consideration within existing comparative accounts of gift law, this article aims to provide an alternative and, arguably, more complete way of understanding the divergent classification of gifts in common law and civil law jurisdictions. Focusing on the examples of Quebec civil law and Canadian common law, I argue that this state of affairs can be accounted for, and perhaps even justified, by drawing on the relationship that each set of legal systems presents between two potentially distinct classes of agreement--the first corresponding to agreements that generate future obligations, and the second to agreements that immediately transfer properly rights. Whereas Quebec civil law in particular does not truly distinguish between the two as a matter of practice or theory, I suggest that the concept of contract adopted in common law jurisdictions can be understood to correspond to the first class of agreement, as one that serves to generate future obligations. Meanwhile, it is the correspondence of the common law gift to the second type of agreement--to an agreement that is immediately performed, and that serves to transfer properly rights at the moment of its conclusion--that I further suggest provides us with the most compelling explanation, or at least the most complete doctrinal explanation, for its exclusion from contract as the common law understands the term. (6)

My argument proceeds in three parts. Parts I and II begin by examining the meaning given to "gift" and "contract", respectively, in Quebec civil law and Canadian and English common law sources. (7) Part III then applies the conclusions drawn in the first two parts of this article to the effects generated by or ascribed to the gift in each set of jurisdictions. By focusing on these effects, I argue that the version of the gift enshrined in the CCQ serves both as a source of obligation on the part of the donor and as a means of potentially transferring property rights to the donee at the moment of its conclusion, without any clear difference between the two types of arrangement. I then suggest that the common law gift amounts instead to a transaction in which the transfer of the gift properly is necessarily performed at the very same moment in which the donor and donee reach an agreement, meaning that the agreement can be understood to effectively pertain to the performance of the transfer in question.

As will hopefully become apparent below, and is perhaps already implicit in my rejection of the approach found in most existing comparative accounts of gift law, each part of my argument largely assumes the rationality of the distinctions typically drawn by writers and judges in relation to their own respective legal systems. I accordingly do not challenge the non-contractual classification of gifts in common law jurisdictions or the contractual classification these transactions receive in Quebec or elsewhere, but rather attempt to better understand these choices in their own terms. (8) At the same time, this article does not attempt to provide a complete theory of contract or conveyancing in either set of jurisdictions either. While my arguments address theoretical issues, particularly in Part II, they are aimed primarily at understanding the divergent attitudes taken towards the contract/gift relationship in Canadian common law and in Quebec civil law, rather than directly at the construction of an ideal account of contract or of its relationship with properly law. (9)

1. THE SCOPE OF GIFT

   As with many comparative studies, the first issue raised by this article pertains to whether its object--in this case, the transactions or agreements called "gifts"--corresponds to the same idea or concept in each set of jurisdictions under consideration. There are two main reasons for addressing this problem from the outset. The first is that any differences in the scope of gift law present a challenge to the very possibility of mounting a comparative analysis, and should thus at least be tacitly understood before proceeding further. (10) The second reason, and perhaps the most important one for present purposes, is that any differences that do exist are both deserving of an explanation in their own right and may even go some way towards explaining the divergent classifications that gifts receive in common law and civil law sources.

   As I argue below, it is precisely the differences in the scope granted to the term "gift" in each set of legal systems that should first alert us to a possible explanation for its association with contract in Quebec civil law, on the one hand, and its exclusion from the contractual domain in Canadian and other common law jurisdictions on the other. Whereas the former legal system adopts a wide view of the gift, encompassing agreements concluded using at least three different formalities--the notarial act, delivery, and the use of a disguised form--the common law instead tends to reserve the label of "gift" only for the agreement that has been completed or "executed" by means of delivery. The common law's closest equivalents to the other two formalities recognized by Quebec civil law, meanwhile, are generally understood as means of concluding contracts within that legal tradition, meaning that these agreements are at least implicitly excluded from its version of gift law entirely.

   1. THE CONTRACT OF GIFT IN QUEBEC CIVIL LAW

      Perhaps the easiest place to begin my argument as to the differing meanings given to the term "gift" at common law and in Quebec civil law is to turn to the CCQ which replaced Quebec's previous civil code, the Civil Code of Lower Canada (the "CCLC"), in 1994. As the relevant provision sets out:

      Gift is a contract by which a person, the donor, transfers ownership of the property by gratuitous title to another person, the donee; a dismemberment of the right of ownership, or any other right held by a person, may also be transferred by gift. (11) There are at least three aspects of the above definition that are potentially relevant to the present study. The first, and perhaps the most obvious, is that the gift is clearly understood as a species of contract in Quebec civil law. Save and except for the requirements applicable only to that particular transaction, it is accordingly subject to the same general rules that apply to all contracts under the CCQ, including the rules pertaining to contract formation--that is, to the rules of offer and acceptance--as well as those requiring a valid cause and object as essential conditions of contractual validity. (12)

      Understood in these terms, the version of the gift enshrined in the CCQ requires that the donor make an offer to gift particular property to the donee, who must accept that offer--which is to say that the transaction rests first and foremost on the bilateral consent of the parties involved. While the requirements of cause and object may appear to complicate matters at first glance, they too are consistent with the existence of bilateral consent: the object corresponds to the conclusion of the transaction as a gift, while cause is supplied by the intention of the parties to give and accept the properly gratuitously--i.e., to complete the transaction as a liberality. Each of these elements relates back to the existence of an agreement between two or more parties, such that a gift is considered to be binding as a contract even if the operation it contemplates remains fundamentally gratuitous in nature. (13)

      This conclusion brings us to the second important feature of the definition of gift in the CCQ, which pertains instead to the relatively narrow sets of conditions that must be met for a contract to qualify qua gift in Quebec. As the definition given above suggests, in order to qualify as a gift, a contract must not only be gratuitous but must also relate to the transfer of properly rights. (14) The mere fact that a contract is gratuitous does not suffice to make it into a gift, especially since the CCQ also recognizes a number of other gratuitous or potentially gratuitous transactions...