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Cette difficulté se situe à la base même des solutions choisies par la Cour d’appel du Québec, depuis l’arrêt Massouris, pour régler les conflits survenus dans la jurisprudence des tribunaux de première instance au Québec au sujet des baux à long terme, du crédit-bail ou des ventes à tempérament de véhicules, des obligations de publication qui s’y rattachent et des droits des syndics de faillite.
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25 The majority of the Court of Appeal held that a recharacterization was necessary and, consequently, that the failure to publish could be relied on by the trustee, who had to be considered a third person for the purposes of art. 1852 C.C.Q. However, as Beauregard J.A. noted in his dissenting opinion, this position tends to confuse the concepts of ownership and security. This problem lies at the very heart of the solutions adopted by the Quebec Court of Appeal since Massouris to resolve conflicts that have arisen in the decisions of Quebec’s trial courts with respect to long‑term leases, leasing or instalment sales of vehicles, the related publication requirements and the rights of trustees in bankruptcy. In line with the very clear positions that were adopted in Massouris, the decisions of the Court of Appeal have presumed that all legal transactions by means of which an automobile is placed at the disposal of a user are secured credit transactions. This analysis and this characterization have made it possible subsequently to treat the owner’s rights as the rights of the holder of a simple security. When this security has not been perfected because of a failure to publish it in a timely manner, it cannot be set up against a trustee in bankruptcy, who is regarded as a third party in his or her capacity as the creditors’ representative.
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