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Louisiana Bar Exam July 2023- Created By Maryclaire Farrington > 6. Code III: Liberative Prescription and Obligations > Flashcards

6. Code III: Liberative Prescription and Obligations Flashcards

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1
Q

Liberative Prescription

A

Prescription is generally defined as the effect of time on legal rights. Liberative prescription is the barring of an action because of the passage of time.

Liberative prescription commences to run from the day a cause of action arises.

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2
Q

Contractural Freedom to Modify Prescription

A

Parties to an obligation may not EXCLUDE prescription.

Parties to an obligation may LENGTHEN prescription by juridical act BEFORE prescription accrues if
(1) the extension does not exceed one year AND
(2) extension is express and in writing

Parties generally cannot make prescription more onerous.

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3
Q

Renunciation of Prescription

A

= abandonment of rights derived from the accrual of prescription

  • renounced only AFTER it has accrued.
  • commences to run anew from the time of renunciation.
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4
Q

Form Requirement for Renunciation of Prescription

A

There is no general form requirement for renunciation and therefore can be express or tacit.

BUT: writing is required when
- renouncing acquisitive prescription that has accrued in his favor OR
- has promised to pay a prescribed debt.

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5
Q

Prescription for Tort

A

1 year beginning on date of damage/ injury

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6
Q

Prescription for Revocatory Action

A

1 year from act or result

suit cannot be brought more than 3 years

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7
Q

Prescription for Money Lent/ Open Accounts/ Past Due Rent

A

3 years from date payment is EXIGIBLE

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8
Q

Prescription for Actions on Promissory Notes

A

5 years

  • demand note = on date executed
  • instrument subject to term = run on date stated in instrument
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9
Q

Prescription for Personal Actions

A

10 years

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10
Q

Actions Against Contractors or Architects

A

10 years

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11
Q

Delaying Prescription

A
  • interruption
  • suspension
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12
Q

Interruption of Prescription

A

If a prescription is interrupted, the time that has run is not counted and prescription commences to run anew from the last day of interruption.

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13
Q

Causes for Interruption of Prescription

A

(1) filing a suit in a court of competent jurisdiction and venue, where interruption is considered as never having occurred if the Plaintiff abandons, voluntarily dismisses or fails to prosecute; and

(2) interruption by acknowledgment, where prescription is interrupted when one acknowledges the right of the person against whom one has commenced to prescribe.

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14
Q

Suspension of Prescription

A

The period of suspension is not counted toward the accrual of prescription. Prescription commences to run again upon the termination of suspension.

PAUSES

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15
Q

When is Prescription Suspended

A

Prescription is suspended between:
(1) spouses during marriage;
(2) tutors and minors during tutorship;
(3) curators and interdicts during interdiction;
(4) caretakers and minors during minority; and
(5) parents and children during minority.

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16
Q

Contra non Valentum

A

exceptional circumstance where P is prevented from enforcing his right for reasons external to his own will

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17
Q

Peremption

A

Peremption is defined as a period of time fixed by law for the existence of a right.

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18
Q

Peremption’s Differences from Prescription

A

(1) peremption is generally immune from suspension and interruption;

(2) a natural obligation does not remain after peremption accrues;

(3) peremption can be supplied by the court

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19
Q

Obligations

A

Legal relationship between two or more persons.

An obligation exists when an obligor (debtor) owes a performance in favor of an obligee (creditor) and the performance or duty is legally enforceable.

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20
Q

Natural Obligations

A

a moral, but not judicially enforceable, duty to render performance

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21
Q

Real Obligations

A

A real right and real obligation describe the relationship between a person and a thing, whereas an obligation describes the relationship between two persons.

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22
Q

Effects of a Real Obligation

A

A real obligation is transferred to the person who acquires the thing to which the obligation is attached without any agreement to that effect. (Personal obligations, on the other hand, cannot be transferred without agreement.)

The obligor may free himself of the obligation by transferring the property to someone else.

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23
Q

Strictly Personal Obligation

A
  • for obligor when = performance requires some special skill or qualification of the obligor OR is a K to perform personal servitudes
  • for obligee when = performance is for obligee’s exclusive benefit
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24
Q

Heritable Obligation

A

default

= can step into the shoes of either obligee or obligor

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25
Q

Conditional Obligations

A

obligation whose occurrence depends on an uncertain event.
(If the event is certain to occur, it is not conditional.)

Conditions can be suspensive or resolutory.

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26
Q

Obligation Subject to Suspensive Condition

A

Obligation is not enforceable unless and until the uncertain event occurs

If the event does not occur, the obligation is never owed.

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27
Q

Obligation Subject to a Resolutory Condition

A

obligation is immediately enforceable BUT

comes to an end if the uncertain event occurs

28
Q

Postative Condition

A

Conditions that are within a party’s power are called potestative conditions.

  • whim = null
  • will = not null
29
Q

Whim

A

condition is dependent entirely on the obligor’s unbridled discretion or arbitrariness

NULL

30
Q

Will

A

Weighing of interests OR the exercise of reasonable discretion

it is NOT completely null

31
Q

Obligations with a Term

A

A term is the period allowed for the performance of an obligation.

It may be express, implied, certain, fixed, determinable, or uncertain.

32
Q

Suspensive Term

A

no performance due UNTIL term arrives

33
Q

Resolutory Term

A

performance no longer due when term arrives

34
Q

Term vs. Condition

A
  • term = uncertainty WHEN (was obligation breached)
  • condition = uncertainty WHETHER (did obligation exist)
35
Q

Obligations with Multiple Persons

A
  • several obligations
  • joint obligations
  • solidary obligations
36
Q

Several Obligations

A

exist when separate performances are owed and are treated as separate obligations where each obligor owes only his performance

37
Q

Joint Obligations

A

when one performance is owed and obligors promise to render it collectively

No joint obligor is bound for the whole and no joint obligee is entitled to receive the whole performance.

38
Q

Solidary Obligations

A

each obligor owes the whole performance and solidarily for the obligees when each is entitled to receive the whole performance.

Whether an obligation is joint or solidary is a matter of the parties’ intent, but solidarity is not presumed and may arise from different sources for each obligor.

39
Q

Renunciation of Solidarity

A
40
Q

Remission of Debt

A
41
Q

Allocation of Debt

A
  • contribution
  • indemnity
42
Q

Conjunctive Obligation

A

obligor must render multiple items for performances, each one of which may be separately rendered

43
Q

Alternative Obligation

A

An obligation is alternative is the obligor is bound to render one of two or more items of performance.

  1. only one of the performances must be rendered
  2. obligor gets to choose which
  3. if one performance is impossible, then simply do other
44
Q

Indivisible/ Divisible Obligation

A

An obligation is divisible when the object of performance may be divided. An obligation is indivisible when the object of performance (by nature or agreement of the parties) is not susceptible of division.

45
Q

Transfer of Obligation

A

Unless an obligation is strictly personal, an obligation may be transferred from the original party to a third party.

  1. assumption
  2. subrogation
46
Q

Assumption

A

transfers from vantage point of obligor

47
Q

Assumption between Obligor and 3P

A

does not need t be in writing to be enforceable between obligor and 3P

does need to be in writing to be enforceable by obligee against obligor

48
Q

Assumption between Obligee and 3P

A

always must be in writing to be enforceable

49
Q

Subrogation

A

transferring right of obligee to new obligee

obligation extinguished for obligee

50
Q

Conventional Subrogation

A

arises by agreement with:

  • obligor = in writing + state purpose of loan is to pay the debt
    OR
  • obligee = governed by rules of assignment of rights
51
Q

Legal Subrogation

A

entitles new obligee to recover only to the extent he performed

52
Q

Proof of Obligations

A

when k must be in writing, cannot be proven by oral testimony UNLESS instrument was lost/ destroyed/ stolen

53
Q

Authentic Act

A

writing executed in front of a notary and two witnesses and signed by the parties, notary, and witnesses.

54
Q

Act Under Private Signature Duly Acknowledged

A

An act under private signature duly acknowledge is an act that is originally executed without a notary present, but a party thereafter acknowledges the signature before a court or before a notary and two witnesses.

It cannot substitute for an authentic act when an authentic act is required.

55
Q

Act Under Private Signature

A

An act under private signature is signed BUT not necessarily written by the parties.

56
Q

Acts that REQUIRE a Writing

A
  1. transfer of immovable property
  2. mandate to transfer immovable prop
  3. promise to pay debt of 3P
  4. compromise
  5. suretyship agreement
57
Q

Transfer of Immovable Property

A
58
Q

Extinction of Obligations

A
  1. performance
  2. impossibility
  3. novation
  4. remission of debt
  5. compensation
  6. confusion

PIN RCC

59
Q

Performance of Obligation

A

Performance extinguishes an obligation.

Either the obligor or a third person may render the performance unless the obligee has an interest in performance only by the obligor.

60
Q

Impossibility

A

An obligor is not liable when her failure to perform is caused by a fortuitous event that makes performance impossible.

61
Q

Novation

A

Novation is the extinguishment of an existing obligation by the substitution of a new one.

Novation is NEVER presumed and the obligee’s intent to extinguish the original obligation must be clear and unequivocal.

62
Q

Remission of Debt

A
63
Q

Compensation

A
64
Q

Confusion

A

when obligor and obligee become same person

65
Q

Fortuitous Event

A

Not reasonably foreseeable at the time the contract was made

Not merely more burdensome or expensive— must be actually impossible

Louisiana Bar Exam July 2023- Created By Maryclaire Farrington (19 decks)

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