International Construction Law Review
BOOK REVIEWS
HUMPHREY LLOYD
The Construction Hypothec. By David H Kauffman with Guy Gilain. Montreal, Canada: Wilson & Lafleur Ltee, 2007. ISBN 978-2-81927-840-9. 700 pp., including Appendices and Tables. C$64.95.
In countries where the law gives some in the construction industry security for payment, books which consider liens and other means of security frequently provide an indirect insight into basic principles of construction law in that country, as well as the operation of standard and other forms of contract. This extensive and new work meets those objectives as well as achieving most successfully its primary goal of providing a commentary on the “Construction Hypothec” which was introduced as part of the reform of the Civil Code of Quebec in 1994. It is also 32 years since there has been a work in English on construction law in Quebec. The common law “construction lien” or “mechanics’ lien” have equivalents in Quebec in the form of “workman’s privilege” or “construction hypothec”. Both achieve a charge against the immovable property (whose value may be enhanced by the work being carried out on it) to secure the payment of those involved in that work.
The authors are both with the firm of De Grandpre Chait LLP of Montreal. Maitre Kauffman is well known as the long standing Editor for Quebec of the Construction Law Reports. He also teaches construction law at the Faculties of Architecture and Engineering at McGill University. Me Gilain, his collaborator and partner (in De Grandpre Chait LLP) is also well-versed in the subject, having given courses and participated in a number of conferences on construction law in Quebec. In the introductions, both, somewhat disparagingly, discount any academic leanings or pretensions, but the text is evidently the product of a lively debate between them, so much so that each can present his own views on a point. The reader will, however, rapidly discover that this is no ordinary work since every aspect of it is more than adequately buttressed by and cross-referenced to a wealth of decisions and instructive commentaries. It is written in excellent English (thanks, according to the authors, to an admirable translator).
The authors point out, early in the work, that although the legal framework of the construction hypothec in Quebec owes its origins, ultimately, to the same source as the laws in other Canadian provinces (and in the United States and other countries) which have created mechanics’ liens, that legal framework is different. The common law mechanics’ lien is an interest or “estate” in the very interest or estate of the person who is defined as being the “owner” of the land whereas, under the Quebec system, a hypothec is a real right affecting an immovable property that is an accessory to a construction claim. If the underlying claim is paid, the
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