Convention de droit de premier refus (Québec)

A Quebec right of first refusal agreement (convention de droit de premier refus) is a legally binding contract governed by the Civil Code of Quebec that grants one party, known as the beneficiary (bénéficiaire), the preferential right to purchase specified property, shares, or assets from another party, known as the grantor (promettant), before the grantor can sell to any third party. Under Quebec civil law, this contractual mechanism is closely related to the pacte de préférence, which is governed by articles 1396 and 1397 of the Civil Code of Quebec (C.c.Q.). Article 1397 specifically addresses the promise of sale with a preference, establishing that the grantor who has promised to give preference to a particular person must notify that person before accepting a third-party offer. The right of first refusal creates an obligation on the grantor to first offer the property to the beneficiary on the same terms and conditions as those proposed by the third-party buyer. This legal instrument is widely used in various commercial and personal transactions throughout Quebec. In the corporate context, shareholder agreements frequently include right of first refusal clauses to ensure that existing shareholders have the opportunity to maintain their proportional ownership before shares are sold to outside parties. In real estate, property owners may grant a right of first refusal to tenants, neighbors, or business partners. The right of first refusal is a powerful contractual tool that balances the grantor's freedom to sell with the beneficiary's interest in having an opportunity to acquire the property. Quebec courts have consistently upheld properly drafted right of first refusal agreements as valid exercises of contractual freedom under the civilian tradition.

A Quebec right of first refusal agreement is needed in a wide range of business and personal situations where one party wishes to secure the opportunity to purchase property or assets before they are offered to third parties. In the corporate context, shareholders in closely held corporations commonly use right of first refusal clauses to maintain control over who becomes a shareholder and to prevent unwanted third parties from acquiring ownership interests. When a business partner or co-owner wishes to sell their interest, the remaining partners benefit from having the first opportunity to purchase that interest and maintain the existing ownership structure. Real estate transactions frequently involve right of first refusal agreements, particularly in commercial leasing where tenants negotiate the right to purchase the property before it is offered to other buyers. In family-owned businesses, the right of first refusal helps keep the business within the family by ensuring family members have priority over outside purchasers. Joint venture agreements and licensing arrangements also commonly include right of first refusal provisions for technology, intellectual property, or other assets developed through the collaboration. Agricultural land transactions in Quebec sometimes involve statutory or contractual rights of first refusal to preserve the continuity of farming operations. The agreement is also valuable in franchise contexts where franchisors or franchisees wish to control the transfer of franchise rights.

The key elements of a Quebec right of first refusal agreement under the Civil Code of Quebec include several essential components that must be carefully drafted for enforceability. First, complete identification of the grantor (promettant) and beneficiary (bénéficiaire) with full legal names and addresses is required. Second, a precise and detailed description of the property, shares, or assets subject to the right must be provided, including lot numbers for real estate, share class and quantity for corporate interests, or detailed descriptions for other assets. Third, the triggering conditions must be clearly defined, specifying which events activate the right, typically the receipt of a bona fide third-party offer. Fourth, any excluded transfers, such as transfers to family members or affiliated companies, must be explicitly stated. Fifth, the notification procedure must be detailed, including the method of delivery, required content, and timelines. Sixth, the response period must specify the number of days within which the beneficiary must exercise the right. Seventh, the price determination method must be established, whether by matching the third-party offer, independent appraisal, or predetermined formula. Eighth, the duration of the agreement must be specified. Ninth, the transferability of the right must be addressed. Tenth, a good faith clause pursuant to article 1375 C.c.Q. must be included. Finally, the governing law clause must reference the applicable provisions of the Code civil du Québec.