“Alienability” in property regimes refers to whether a person’s relationship with a thing can be severed. Inalienable objects of property cannot be sold, gifted, abandoned, or seized. Restrictions on alienation outside of the property regime can be understood by analogy; for example, a person may not forfeit his or her right to life in any way.[1]
Although the concept of alienation in the Civil Code of Québec (“CCQ”) can be understood in reference to property rights, it is important to note that the CCQ’s usage of “alienate” and related forms (including “inalienable”) suggests a broader regime pertaining to rights in general.[2] The alienability – or inalienability – of a right appears to depend on the inherent characteristics of that right. For instance, while it appears that personality rights are, in general, inalienable,[3] the opposite appears to be true for property rights.[4] Thus, despite the sense of absolute inalienability surrounding personality rights, such as the right to life and the inviolability of the person,[5] the CCQ recognizes the alienation of body parts under specific circumstances.[6]
Conversely, inalienability is the exception and alienability the norm in the CCQ regime of property. Stipulations of inalienability over certain objects of property[7] are restricted to limited circumstances. Only property conveyed by gift or will may be made inalienable, and only when the stipulation itself is temporary and justified by a “serious and legitimate interest”.[8] In most circumstances, property that is made inalienable by stipulation will not be subject to seizure for debts of the new owner.[9] However, in cases where the original interest that justified the stipulation has disappeared, or where it has been overridden by a competing and greater interest, the court may allow the disposal of otherwise inalienable property.[10] Further, the stipulation of inalienability may not forbid the new owner from contesting the validity of the stipulation, or from applying for the judicial authorization of the disposal of the property.[11]
Other examples of inalienability in the CCQ property regime may involve circumstances in which certain types of property are inalienable. Thus, while the right to dispose of property is one of the main characteristics of ownership,[12] the CCQ may limit the owner’s right of alienation over certain objects of property, such as movables serving for the use of a family residence.[13]
[1]Art 3 CCQ.
[2]Strictly speaking, it is not the object of property that is or is not alienable, but rather the rights over that object.
[3]Art 3 CCQ.
[4]For instance, according to art 947 CCQ, the right of ownership includes the right to dispose property “fully and freely”. However, property can be made to be inalienable under certain circumstances (q.v. below).
[5]Art 3 CCQ.
[6]Art 19 CCQ.
[7]The regime is set forth at arts 1212-1217 CCQ.
[8]Art 1212 CCQ.
[9]Art 1215 CCQ.
[10]Art 1213 CCQ.
[11]Art 1216 CCQ.
[12]Art 947 CCQ.
[13]Art 401 CCQ.
