The term “oblique action” is used in Book Five of the Civil Code of Québec (“CCQ”) governing obligations. It is one of two measures provided by the CCQ to protect the right to performance of obligations; in other words, to “preserve” the creditor’s rights.[1] The oblique or “indirect” action is based on the juridical principle that the property of the debtor “is charged with the performance of his obligations and is the common pledge of his creditors”.[2] The law therefore grants the creditor a power of “supervision” on the debtor’s patrimony in order to ensure that its value is not unduly depreciated voluntarily or by carelessness.[3] This power of supervision allows the creditor to exercise the debtor’s rights when he or she neglects or refuses to do so, causing the creditor prejudice.[4]
The oblique action is also called an “indirect action” at article 1035 of the English version of the CCQ and these two terms are used interchangeably in legal scholarship.[5] The creditor exercises the rights in the debtor’s name and for his or her benefit; consequently, any property collected by the creditor who took on the action falls into the debtor’s patrimony and benefits all the creditors.[6] Unlike a direct action,[7] the creditor is not acting in his or her own name but for the debtor, and the action is undertaken against the debtor’s debtor and not the debtor him/herself. As a result, the creditor will profit from this action indirectly (once the property is in his or her debtor’s patrimony), according to his or her rank.[8] Another consequence of the oblique action is that the person against whom the action is brought may “set up against the creditor all the defenses he could have set up against his own creditor.”[9]
Examples of the oblique action include the settlor’s or beneficiary’s right to take legal action in the place of the trustee,[10] the sub-lessee’s right to exercise the lessee’s rights against the lessor[11] and the hypothecary creditor’s right to exercise the debtor’s rights to the benefit of his or her hypothec.[12] This action is most useful when the creditor wants to accomplish an act in the debtor’s name, such as interrupt prescription, publish a right, accept or renounce a succession or collect a debt.[13] However, where the law allows it, creditors will prefer direct and personal actions so that they can benefit directly from the action.[14]
In order to ensure that interferences in the debtor’s patrimony are justified, strict conditions must be met for this power of supervision to be exercised.[15] The debt must meet certain requirements for the recourse to be possible:[16] it must be certain (no suspensive or resolutory conditions),[17] liquid (the amount must be determinable at the time of the judgment on the oblique action),[18] and exigible (the creditor must prove that he or she has the right to immediate payment).[19] The creditor may not, however, exercise extra-patrimonial or patrimonial rights that are “strictly personal to the debtor.”[20] Examples of strictly personal extra-patrimonial rights include divorce actions, separation from bed and board, nullity of marriage, contestation of filiation, etc. Patrimonial rights can also be purely personal to the debtor, for example, partition of family patrimony, inalienable rights, actions for damages, etc.[21]
The creditor must be justified in taking on the action. He or she must show that a prejudice will result from the debtor’s actions; this is most often the case when the debtor is insolvent.[22] Negligent management of one’s patrimony is not enough to constitute a prejudice allowing the creditor to interfere, and the creditor cannot exercise an oblique action where the debtor has taken an action to do so him/herself.[23] Some authors argue that insolvency is not a necessary condition in cases where the debtor’s solvency does not compensate for the prejudice caused by his or her actions.[24]
Finally, the oblique action must be distinguished from the Paulian action and from subrogation. The Paulian action makes the debtor’s fraudulent action unenforceable against the creditor.[25] Unlike the oblique action, which requires no fraudulent intention (inaction or refusal to exercise a right suffice), the Paulian action cannot be exercised unless the debtor’s fraudulent intention is proven. In addition, although the oblique action has been referred to as “action subrogratoire”,[26] no subrogation takes place.[27]
[1] Art 1626 CCQ. The two measures are the oblique action and the Paulian action (arts 1631-1636 CCQ).
[2] Art 2644 CCQ.
[3] Louise Langevin & Nathalie Vézina, “La protection du droit à l’exécution de l’obligation” in Obligations et Contrats: Collection de droit, École du Barreau du Québec, vol 5 (Cowansville, Que: Yvon Blais, 2011-2012) 104 at 105 [Langevin & Vézina].
[4] France Allard et al, eds, Private Law Dictionary and Bilingual Lexicons: Obligations (Cowansville Que: Yvon Blais, 2003), sub verbo “oblique action” [Allard].
[5] These two terms are synonyms in both English and French. See Allard, ibid; Jean-Louis Baudouin, Pierre-Gabriel Jobin & Nathalie Vézina, Les obligations, 7th ed (Cowansville, Que: Yvon Blais, 2013) at para 891 [Baudouin & Jobin].
[6] Langevin & Vézina, supra note 2 at 2. See also art 1630 CCQ.
[7] Allard, supra note 4, sub verbo “direct action”.
[8] Langevin & Vézina, supra note 3 at 4.
[9] Art 1629 CCQ.
[10] Art 1291 CCQ and Langevin & Vézina, supra note 3 at 2.
[11] Art 1876 CCQ and Langevin & Vézina, ibid.
[12] Louis Payette, “Exercice des droits et recours hypothécaires” in Les sûretés réelles dans le Code civil du Québec, 4th ed (Cowansville, Que : Yvon Blais, 2010) 772.
[13] Baudouin & Jobin, supra note 5 at para 886; Langevin & Vézina, supra note 3 at 4.
[14] Langevin & Vézina, ibid. See also Baudouin & Jobin, supra note 5 at para 891.
[15] Langevin & Vézina, supra note 3 at 2.
[16] Art 1627 CCQ.
[17] The existence of the obligation cannot be doubted. A debt which depends on a future and uncertain condition, as defined by art 1497 CCQ, does not satisfy this requirement. Baudouin & Jobin, supra note 5 at para 882.
[18] If the action is one in contractual or extra-contractual damages, there must be a judgment to establish the amount before the oblique action can be exercised. Baudouin & Jobin, supra note 5.
[19]Any term attached to the obligation must be respected, unless the debtor loses the benefit of the term (art 1514 CCQ), renounces to the benefit of the term or forfeits it (art 1515 CCQ). Baudouin & Jobin, ibid.
[20] Art 1627 CCQ.
[21] Baudouin & Jobin, supra note 5 at para 887.
[22] Ibid at para 882.
[23] Ibid.
[24] Baudouin & Jobin, supra note 5 at para 881; Langevin & Vézina, supra note 3 at 4.
[25] Art 1631 CCQ.
[26] Allard, supra note 4.
[27] Gérard Cornu, Vocabulaire juridique, 2d ed (Paris: Presses Universitaires de France, 1990), sub verbo “subrogation”; Allard, supra note 4, sub verbo “subrogation”.
