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Discuss/Discussion

Many provisions in the Civil Code of Québec (“CCQ”) use the words “discuss” and “discussion” in their lay sense to mean having a conversation for a particular purpose.[1] Certain usages of discuss and discussion, however, denote procedural requirements pertaining to the seizure and sale of property. The discussion of property in this sense is the seizure and judicial sale of certain kinds of property (the property under discussion) before others.[2]

     In the CCQ, the discussion of property typically requires creditors to maintain a preference for the property of primary debtors before turning to the property of secondary debtors (e.g. a surety[3] or spouse[4]). In such instances, the secondary debtor is said to enjoy the “benefit of discussion” against the creditor.[5] The CCQ sometimes orders groups of assets, requiring creditors to first discuss certain property before having access to other property that is available for the debt. For example, creditors of a partnership must discuss the property of the partnership before instituting proceedings against any of the partners.[6] Similarly, creditors of the institute in a succession must discuss his personal property before having access to the property held in the succession.[7] Despite the lay connotations of “discuss” and “discussion”, the requirement of the discussion of property, wherever it appears in the CCQ, is strict. The creditor is not merely required to consider favoring the property of the primary debtor, but must systematically favor it over that of any secondary debtors.

[1]See e.g. arts 190, 343 CCQ.
[2]JEC Brierley et al, Private Law Dictionary and Bilingual Lexicons, 2nd ed, (Cowansville, Que: Yvon Blais, 1991) sub verbo “discussion”.
[3]Arts 2347-2348 CCQ.
[4]Art 484 CCQ.
[5]See e.g. arts 1766(1), 2347 CCQ.
[6]Art 2221(2) CCQ.
[7]Art 1233(2) CCQ.