Contrat de gage (Québec)

A Quebec pledge contract (contrat de gage) is a specialized form of security agreement under the Civil Code of Quebec that creates a hypothec on movable property through physical delivery (hypothèque mobilière avec dépossession). Governed by articles 2665 to 2692 C.c.Q., the pledge is one of the oldest forms of security in civil law, requiring the pledgor (constituant) to physically deliver movable property to the creditor (créancier gagiste) or to a third-party custodian as security for the performance of an obligation. Under article 2665 C.c.Q., the pledge is constituted by the actual delivery (remise) of the movable property, which distinguishes it from a hypothec without delivery that requires registration at the Register of Personal and Movable Real Rights (RDPRM). The physical dispossession of the pledgor serves as publicity of the security right, informing third parties that the property is encumbered. The pledge creates a real right (droit réel) in favor of the creditor over the pledged property, giving them priority over other creditors in the event of the debtor's default. Under article 2666 C.c.Q., the pledge is indivisible, meaning it subsists in its entirety until the secured obligation has been completely fulfilled, even if the obligation itself is divisible. The contrat de gage is commonly used for valuable portable items such as jewelry, art works, precious metals, securities, negotiable instruments, and other movable property that can be physically delivered. It provides a straightforward mechanism for securing obligations without the formalities and costs associated with registering a hypothec. The creditor who holds the pledged property acquires both a right of retention and a right of realization, enabling them to sell the property if the debtor defaults.

A Quebec pledge contract is needed when a debtor wishes to provide movable property as security for an obligation and the parties prefer the simplicity of physical delivery over the registration of a hypothec at the RDPRM. The most common scenario is securing a personal or commercial loan with valuable items such as jewelry, art, rare collectibles, or precious metals. Pawnbroking operations in Quebec are essentially based on the pledge mechanism, where the borrower delivers personal property to the pawnbroker as security for a short-term loan. Another important use case is in commercial lending, where a business may pledge inventory, equipment, or negotiable instruments to a lender as collateral. Securities and investment certificates can also be pledged under Quebec law, providing a liquid form of collateral for financial transactions. The pledge is also used in international trade, where goods in transit may be pledged through the delivery of bills of lading to secure payment obligations. In family and estate contexts, valuable heirlooms or assets may be pledged as security for inter-family loans. The contrat de gage is particularly advantageous when the parties want immediate security without the delay and cost of registration, when the property is readily portable, and when the creditor wants physical control over the collateral.

The key elements of a Quebec pledge contract include several essential components required for legal validity under the Civil Code of Quebec. First, complete identification of the pledgor (constituant) who owns and is delivering the property, including full legal name, address, and contact information. Second, complete identification of the pledgee (créancier gagiste) who will hold the property as security. Third, a detailed description of the pledged movable property, including identifying characteristics, serial numbers, condition at the time of delivery, and estimated value. Fourth, the date of physical delivery must be recorded, as this is the constitutive element of the pledge under article 2665 C.c.Q. Fifth, the secured obligation must be precisely described, including its nature, amount, and due date. Sixth, custody and conservation arrangements must be specified, including whether the property will be held by the creditor or a third-party custodian, the place of conservation, and the conservation obligations under articles 2736-2742 C.c.Q. Seventh, the conditions for realization must be detailed, including default conditions, the notice period required, and the method of sale under articles 2748-2794 C.c.Q. Eighth, the return conditions must specify when and how the property will be returned to the pledgor upon satisfaction of the obligation. Ninth, a good faith clause pursuant to article 1375 C.c.Q. is required. Finally, the governing law clause must reference articles 2665-2692 C.c.Q. and confirm Quebec jurisdiction.