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2 - Lepaulle Appropriated
- from PART I - PATRIMONY AND THE COMMON LAW TRUST
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- By Alexandra Popovici, Assistant Professor, Faculty of Law, McGill University; and Researcher, Paul-André Crépeau Centre for Private and Comparative Law., Lionel D Smith, Sir William C Macdonald Professor of Law, Faculty of Law, McGill University; Researcher, Paul-André Crépeau Centre for Private and Comparative Law; and Professor of Private Law, Dickson Poon School of Law, King's College London.
- Edited by Remus Valsan
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- Book:
- Trusts and Patrimonies
- Published by:
- Edinburgh University Press
- Published online:
- 15 September 2017
- Print publication:
- 17 June 2015, pp 13-41
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- Chapter
- Export citation
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Summary
INTRODUCING THE TRANSLATION
The project
We were honoured when Remus Valsan invited us to translate into English this important text by Pierre Lepaulle, for inclusion in the present volume. The Crépeau Centre has a tradition of translating foundational texts of the French civilian tradition. The goal is to make these texts available to an English readership, while preserving the civilian character of the original. But working in civil law English, for a common law and civil law audience, is not an easy enterprise; both readerships might feel a little uneasy with certain choices made. Translators, like trustees, exercise judgment on behalf of another; they do not have the luxury of being faced with only one correct course of action.
In translating Lepaulle and his vision of the common law trust as an affected patrimony, we chose simply to appropriate Lepaulle. The exercise involves translation, but is first and foremost a legal enterprise. Common law, civil law, civil law in English, and comparative law are all at play in this text, involving both our vision of the trust today and Lepaulle's understanding of both the common law and the civil law of his time. What is fascinating and essential to underline, however, is how this kind of work has a reflexive impact not only on the notions of trust and patrimony but also on civil law in French, and on private law more generally, including the common law.
The author
An obituary in the Bulletin de la société de législation comparée provides some information about Lepaulle's life. He was born in 1893 and studied philosophy and law before being called into military service in 1913. He applied for a scholarship to study in the US near the end of the war, and learned of his success a year later. He departed in 1919, a week after being released from service. He spent most of his time at Harvard, where he earned the SJD, and returned to France in 1923, where he completed his French doctorate in Paris. He must have made a strong impression at Harvard; decades later, he contributed to collections of essays published in honour of Austin Scott and Roscoe Pound. In Paris, he practised as an advocate over a lengthy career, during which he also taught foreign and comparative law.
9 - Trusting Patrimonies
- from PART III - TRUST AND PATRIMONY IN FRANCE, QUEBEC AND THE NETHERLANDS
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- By Alexandra Popovici, Assistant Professor, Faculty of Law, McGill University; and Researcher, Paul-André Crépeau Centre for Private and Comparative Law
- Edited by Remus Valsan
-
- Book:
- Trusts and Patrimonies
- Published by:
- Edinburgh University Press
- Published online:
- 15 September 2017
- Print publication:
- 17 June 2015, pp 199-220
-
- Chapter
- Export citation
-
Summary
INTRODUCTION
The trust has always been part of Quebec civil law. However, its inherent English nature, combined with the little attention it received under the Civil Code of Lower Canada, created an uneasy institution in quest of an identity. The recodification of 1994 was the ideal moment to civilise the beast, and it was through the notion of the patrimony, a civilian notion if there is one, that this civilisation took place. The introduction of the patrimony by appropriation in the Civil Code of Quebec was prompted by the desire to recast the alien institution of the trust in a civilian framework.
But what are the consequences of the new patrimonialised trust? By choosing the patrimony by appropriation as the vehicle to integrate the trust into the most recent codification, the Quebec legislature has changed not only the framework of the trust, but also the overall juridical plan of private law. Rights according to the Civil Code of Quebec now have two means of being: either they belong to persons, or they are appropriated to a purpose.
The notion of patrimony is at the very heart of this conceptual revolution, which not only transforms all Quebec trusts into purpose trusts, but, more importantly, admits in Quebec's private law rights without holders. As I will try to demonstrate, this revolution was able to take place without a rebellion because the legislature used the notion of patrimony to recast the trust. The power of the patrimony over the civilian imagination managed to ease this conceptual turn.
The symbolic and normative power of the patrimony will be the main topic of this chapter. I will begin with a brief overview of the story of the trust in Quebec and try to explore why the patrimony, specifically the patrimony by appropriation, was chosen to recast the trust in the new code. I will then examine what it means to call a trust a patrimony and, more specifically, a patrimony by appropriation. To do that, I will first investigate the notion that seems to be fundamental to this profound change: the patrimony.
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