August 5, 2008

David H. Kauffman publishes his latest book, The Construction Hypothec

The Fellows of the Canadian College of Construction Lawyers congratulate our friend and colleague, David H. Kauffman, on the publication of his latest book, The Construction Hypothec.  The following is taken from a press release:

 authored by lawyers David H. Kauffman with the collaboration of Guy Gilain, entitled The Construction Hypothec, reviews in depth all aspects of construction lien legislation in Quebec.  It focuses upon the changes that have resulted from the 1994 reform of the Civil Code and the impact these changes have had upon owners, financial institutions, contractors, subcontractors, architects and engineers.

On January 1, 1994, the new Civil Code of Quebec replaced the original Civil Code of Lower Canada which had been introduced in 1866, on the eve of Confederation.  Before enacting the new Civil Code, the Reform Commission debated at length whether the construction industry should have this special type of security.  At one point, the Reform Commission suggested abolishing the security afforded to the construction industry entirely, so that construction creditors would be on the same footing as ordinary creditors.  Then the Reform Commission proposed that construction creditors would have to register their security in the same manner as other financial creditors, so that they would all be treated equally.  Finally, it was decided that the construction industry needed and would have a security that came before all other types of security.  Thereby the legislature favoured the construction industry over the financial industry.

The legislature re-branded the workmen’s privilege calling it a “legal hypothec in favour of persons having taken part in the construction or renovation of an immovable”.  Since four different types of legal hypothec exist, the book more accurately calls this security a construction hypothec.

The book is unique in a number of ways.  This is the first text dedicated to a comprehensive review of the construction hypothec and related areas of construction law.  It often compares the construction hypothec system in the Province of Quebec with the parallel construction lien systems found in other Canadian provinces and in North America.  It suggests that our neighbours have much to envy with the admirable simplicity of the construction hypothec system in Quebec and concedes that in some technical areas, such as the ability to pin down the delay for the registration of construction hypothecs, Quebec can learn from the techniques used elsewhere in Canada. 

Since the inception of the College, David has been a distinguished Officer and Governor and is also a Past President of the Canadian College of Construction Lawyers.

Click here to be taken to a scan of the title page of the new publication.

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