Code III Flashcards
prescriptive period for torts
1 year
mortgage definition
an accessory right that secures the performance of ANY obligation, and allows mortgagee to seize and sell mortgager’s immovable property under a judicial process, and use funds to repay the loss of the loan to the mortgagor.
it’s a real right - follows the property
hierarchy of 3 types of privilege
repairman’s privilege > lessor’s privilege > vendor’s privilege
but vendor’s privilege > repairman’s privilege
types of nonperformance
complete nonperformance
defective performance
delayed performance
limitations of damages in contract
are allowable. damages laws are suppletive.
however, may not exclude or limit liability for intentional or gross fault. cant exclude or limit liability for physical injury.
can provide for stipulated damages, but must require a breach to trigger (not through dissolution because of impossibility, for example) and must be in line with rules of public order (ie, not hidden punitive damages)
waiving the warranty against eviction
if warranty renounced, and buyer evicted, then buyer gets back price but no damages.
if warranty renounced AND buyer knew of risk of eviction OR declared he was buying at own peril and risk OR seller’s obligation to return price in eviction expressly excluded. –> no recovery. idea is it’s a sale of a hope
if sale was by quitclaim, then no recovery
NOTE: if eviction was because of seller’s own act, then waiver ineffective
assumption of obligation
an assumption transfers the duty from obligor 1 to a third person
An assumption between obligor and third person doesn’t need to be in writing for obligor 1 to enforce the assumption, but it does in order for the obligee to enforce the assumption
the original obligor and the new obligor are now SOLIDARILY BOUND
recordation rules for mortgage effectiveness against third persons
must be recorded in the mortgage records in parish in which property located (“inscribed”)
conventional and judicial mortgages are effective at date of recordation—> “first in time, first in right.”
after a mortgage is initially inscribed, it’s effective from 10 years from date of signature.
if mortgage term is for 9+ years, then valid for 6 years after termination of original term without reinscription
If mortgage needs to be re-inscribed, mortgagee needs to file notice of reinscription. must include:
declaration that mortgage is reinscribed
name of mortgagor
recordation number of mortgage when originally filed
then file in records of parish where mortgage originally filed
Remission of obligation:
A voluntary relinquishment by an obligee of her right to demand performance
Can be done gratuitously, or as a compromise.
Remission is presumed when the obligee hands over the promissory note to the obligor.
conforming goods
buyer has right of inspection upon delivery. goods must conform to contract in kind, quantity, and quality.
if buyer is silent within reasonable amount of time, presume acceptance
if buyer rejects, seller has right to cure nonconformity if:
if time for performance has not yet expired, OR
if the seller reasonably believed that the buyer would have accepted the nonconforming goods
gratuitous contract where a lender delivers a consumable thing to a borrower
loan for consumption
borrower must replace the things with similar quality and quantity of things at end of the loan
renunciation of a term
if there is a term or condition that is intended to benefit one person, the benefitting party can renounce the term or condition
remedy for nonperformance of contract
specific performance - shall be granted when contract is to deliver a thing, not to do an act, or execute an instrument.
unless impracticable = impossible; cost of SP greatly disproportionate to the cost of the actual damage; no longer in creditor’s interest; or substantial negative effect on rights of third party.
damages granted also.
3 types of privilege
repairmans privilege
to people who make and repair goods
to secure the payment of fee for parts and labor
the privilege exists as long as repairman has possession of goods + 120 days from last day work was done.
lessors privilege
gives privilege over any of lessee’s property on the leased premises, to cover due rent and damage to property
the privilege exists over property of lessee while on lessor’s property + 15 days after its removal
vendors privilege
attaches to any object sold on credit — movable or immovable
for movable property, vendor’s privilege exists for as long as buyer has possession of the sold good — if vendee sells good, then privilege lost (although note: privilege only exists if act of sale recorded within 7 days of the credit sale’s enactment)
for immovable property, privilege exists as long as act of sale is effective against third persons (ie, recorded in both conveyance and mortgage records)
if leased thing is destroyed
lease automatically terminates upon complete destruction.
if thing was partially destroyed, or substantial impairment of use, then lessee entitled to reduction of rent or dissolution of lease. if due to external circumstances (zoning change), then dissolution only
all contracts regarding transfers of immovables
including options, right of first refusal
must be recorded in the conveyance records to be effective against third parties
duress definition
consent is vitiated by duress when duress was of such a nature asa to cause a reasonable fear of unjust and considerable injury to the party’s person, property, or reputation. the harm must be severe
conduct must cause a reasonable fear of unjust and considerable injury to your person, property, or reputation — or those of someone you love
reasonableness is tailored to people like the victim. the age, health, disposition, and other personal circumstances must be taken into account.
contract to build
not a sale if:
if buyer has some control over specifications of the object —> contract to build
if negotiations for contract take place before construction
if contact contemplates that one party will provide materials but also skills and labor
then rules of redhibition and lesion dont apply
builder must build in good and workmanlike manner
definition of sale
a contract whereby a person transfers ownership of a thing to another for a price in money
requires: consent, thing, and price.
price must be determined or determinable
error definition and analysis
with bilateral error, where both paarties make same mistake, parties can re-make contract or rescind. easy
with unilateral error, contract will be rescinded only when (1) error concerned a cause without which the obligation would not have ben incurred AND (2) that cause was known or should have been known to the other party
examples of cause: contractual object or a substantial quality of that object; the person or qualities of the other party; or when party has drawn erroneous conclusions of law
remember: error as to a thing’s value is not a valid ground for rescission.
object
parties are free to contract for any object, as long as it is: lawful, possible, and determined or determinable
lawful is something not violating public policy of louisiana
possible is almost not a limitation - possible for any person anywhere to do then ok
so: thing must be determined as to its kind BUT may be determinable (not yet fixed) as to its amount
commutative contract definition
contracts in which the parties’ performances are correlative
similar to bilateral contract but a nuance.
compromise
is a contract where one or more parties make concessions to settle a dispute or uncertainty regarding an obligation or other legal requirement
must be in writing or recited in open court and transcribed
depositing a check that says on it “paid in full” even though less than claimed amount is a compromise.
to renounce prescription,
obligor must clearly express his willingness to give up the legal right to prescription
to renounce prescription on a prescribed debt, must be in writing
Lessor’s obligations:
has to deliver the thing
to the lessee
on time
and in good condition
has to maintain the thing so it can serve purpose for which it was leased (includes repairs and warranty against defects)
must protect the lessee’s peaceful possession of the thing
note on maintenance: lessor has to make all repairs unless duty specifically reserved to lessee
if lessor refuses to make repairs; lessee can sue for specific performance or dissolution of the lease. OR can make repair himself and deduct cost from rent. then, lessee has to make demand in writing and have it be refused.
note on warranty: lessor warrants that there arent any defects or vices on the thing that impairs its use (intended purpose); unlike redhibition, applies to defects that arise after/during the ongoing passage of time of the lease
promissory notes
5 years
begins running from date payment was exigible:
for demand notes, from date of issuance; for term notes, from date of due payment
nonconforming acceptance
acceptance is not an acceptance, but rather a counteroffer, if additional terms are therein
unless merchants - then the additional terms automatically incorporated
consent rules
no form requirements for general contract. offer and acceptance can be written, verbal, or manifested through action or inaction as long as that action clearly manifests an intention to be bound
obligation is alternative if
obligor is bound to render one of multiple items of performance
liability of seller in redhibition and prescription
depends on whether seller was in good or bad faith.
good faith seller = must repair the thing; if fails to repair may be liable for return of price/quanti menoris;
presriptive period is one year from discovery of defect but must be within 4 years of delivery of thing sold OR 1 year from delivery if residential or commercial immovable.
bad faith seller = no opportunity to repair; immediately to rescission or quanti menoris PLUS damages and attny fees. prescription is one year from discovery, no 4 yr cap.
definition of bad faith = knew of defect; intentionally misrepresented the thing (affirmative lies); or is manufacturer of the thing
buyer can sue all sellers back to source of defect / bad faith (or manufacturer) in order to get attorney’s fees
divisible and indivisible obligations:
divisible obligation is one where performance can be divided
divisibility can be accomplished by agreement or by nature
or indivisibility can be accomplished by agreement (even if it would otherwise be divisible)
prescription accrues on ___
the day of the last year that corresponds to the commencement of prescription
ie, action arises january 1, 2019 - prescription accrues on january 1, 2020
seller’s obligation to deliver
must deliver thing in good condition
must deliver thing in time, or be subject to suit for specific performance or damages
option
a unilateral contract to sell or buy, wherein the grantor of the option is bound to sell or buy if grantee accepts within stipulated time
contract must identify the thing, state a price, have/impute a term, and if for an immovable, be in writing
option cannot be granted for more than 10 years unless tied to lease (ie, contract of periodic and continuous performance), in which case that term is imputed
if property agreed to buy is different from property delivered
then if sale was by measure, buyer pays for reduction/increase in delivered amount, unless more than 5% either way, in which case rescission available.
if sale was in lump, then no increase or decrease in price unless over/under by 5%+
if sale was for a thing, no changes in price
liberative prescription of one year from date of sale
allocation of debt among solidarily liable obligors
Contribution
Obligee can go after any obligor for full repayment, then each obligor is liable for his VIRILE SHARE to one another
In contract, virile shares are equal unless contracted otherwise
In tort, shares are usually dependent on fault
obligors whose solidarity was renounced are still liable to other still-solidary obligors to cover insolvent obligor’s share.
obligors who were remitted from solidary obligation are excluded from covering insolvent obligor’s share
security right definition
it’s a legal right against another person
or against a piece of property
intended to help a creditor collect a debt
gives creditor greater security that they will be repaid
acceptance rules
for revocable offer, acceptance valid at time of transmission of acceptance, as long as offeree accepts via regular and reasonable method of transmission or according to the offer’s provisions for transmission
acceptance of an irrevocable offer is effective only upon receipt of the acceptance by the offeror
note: receipt includes “when deposited in a place the addressee has indicated” – so if email was given, receipt counts as when arrived in email inbox.
lesion
lesion applies only to sales of corporeal immovables
seller only may raise lesion
if sale was for less than 1/2 the value of the immovable at the time of the sale
remedy = buyer can return thing or pay difference between price paid and market value
Action to reduce excessive donation
5 year prescriptive period
form requirements of conventional mortgage
in writing
signed by mortgagor (doesn’t need mortgagee’s signature/dont need notary)
states specific numerical amount or maximum numerical amount of debt that mortgage is securing
must describe property over which mortgage is granted:
if you use a legal description: meets and bounds, US geological survey, recorded subdivision plat —> youre definitely fine
if you use a municipal address,
the “omnibus description” is not sufficient: “all the property I own south of I-10” —> renders mortgage ineffective entirely
types of leases
residential = when thing to be used as a dwelling
agricultural = when thing to be used
mineral = when thing to be used for production of minerals
commercial = thing used for commercial purposes
consumer =when it’s a movable intended for lessee’s personal or familial use
types of contract
unilateral contract = where one paarty owes a duty, and that duty exists only on one side. usually, donations
bilateral contract = where each party binds himself reciprocally
includes sales and leases.
note that in these cases, each party both obligor and obligee, and performances are reciprocal
peremption definition
a period of time fixed by law for the existence of a right
private works act rules
if claim and privilege arise and are preserved, then workmen can sue owner
to arise:
for person workmen, just have to show that you did work and werent paid.
for juridical person subcontractors, have to send certified mail to owner 10 days before filing claim or 75 days after last month of delivered materials. for lessors of equipment, send notice of lease to owner within 10 days of delivery of leased equipment
for general contractors, have to file notice of contract in mortgage records before work begins in order for privilege to arise
to preserve:
file document called statement of privilege
that is signed by claimant
reasonably identify the immovable property (address alone insufficient)
identify the work that was done, that it unpaid, and who failed to pay it
must file it in mortgage records of parish where immovable is located within 60 days of notice of termination of work (of whole project) or substantial completion/owner taking possession
conversion of expired lease when tenant stays in place is called
reconduction = automatic continuation of terms of expired lease because of parties’ inaction
in agricultural leases, tenant must remain in possession for 30 days beyond term
for non-agricultural immovable leases, must remain in possession for 1 week beyond term.
for all others, one day beyond term.
new term when reconduction occurs?
for agricultural, transfers into year to year lease
for all other leases, if original term was a month or longer, then convert to month to month
for leases where term was between a day and a month, then day to day
for leases where term was less than a day, then lease is reconducted for term of original length
Lessee’s right to sublease, assign, or encumber:
lessee can assign his lease to another party OR sublease his property unless expressly prohibited
an assignment is
a transfer of the lessor’s rights AND duties: has right to take possession and duty to pay rent
sublease is the lessee leasing to a third person, the right to use
the third person is bound only to the lessee
right to approve subleases or assignment
may be given to the lessor
but may not be used in an abuse of right doctrine way
however, legitimate business reasons to refuse sublease approval do not violate abuse of right doctrine
solidary obligation
Exist when obligors each owes the whole performance.
When obligors are bound solidarily or in solido, this is express. Also, when the single obligation is signed by multiple obligors, then this is a solidary obligation.
Bank can go after any 1 of the solidarily bound obligors and recover the full amount.
right of first refusal
unilateral contract wherein one party agrees he will not sell property without first offering it to the grantee
contract must identify the thing, be in writing if for an immovable. doesnt need aa term or price.
right of first refusal cannot be granted for more than 10 years unless tied to a lease / contract of periodic and continuous performance.
to use: holder has 30 days for immovable to exercise. if not, then seller has 6 months to sell. then back to holder for another chance to exercise
Conjunctive obligations
exist when obligor is required to render multiple items of performance, each one of which may be separately rendered
eg, monthly rent
note that each overdue payment prescribes seperately
dissolution of contract
dissolution is the cancellation of the contract. not same thing as rescission.
may be judicial or extrajudicial.
judicial dissolution is within court’s discretion. consider 4 factors:
extent and gravity of failure to perform
nature of the obligor’s fault (good or bad faith)
good or bad faith of the parties involved
surrounding economic circumstances that make dissolution inopportune
note also that dissolution is not available if obligor has rendered significant performance and the unperformed part does not significantly impair the interest of the obligee
dissolution –> damages
Strictly personal obligation
non-default rule. obligations are heritable unless strictly personal
when a contract is only enforceable between original obligor and original obligee
may exist:
If the performance owed by obligor requires special skill or qualification of the obligor
OR
If the obligation is to perform personal services
a mortgage between person A and person B is / is not also enforcesable for surety rights between person A and person B
IS enforceable for surety rights
flow of analysis for offer
figure out if offer was revocable or irrevocable
if revocable, was it revoked
if irrevocable or not revoked, did it expire
if offer was still live after these three questions, was it properly accepted
Lessee’s rights and obligations:
to use the thing as prudent administrator
to pay the rent
to return the thing at end of the lease int he same condition it was delivered, minus wear and tear
effects of natural obligation
A natural obligation is not enforceable by judicial action
Once obligor performs natural obligation, obligor cannot reclaim his performance if freely rendered.
New contract or promise coming from the natural obligation may be enforceable – say, if I promise to pay you a debt discharged in bankruptcy, that new obligation may be onerous.
note: not possible to exist for juridical persons
availability of nonpecuniary damages
only available when both:
contract w as intended to gratify a significant nonpecuniary interest AND
obligor knew or should have known that failure to perform would cause nonpecuniary loss
or, if obligor intentionally inflicted emotional distress – way above malicious breach standaard
3 possible contracts contemplating future sale
option
right of first refusal
contract to sell
Confusion:
Results from party becoming both obligor and obligee
Confusion requires the same person in the quality of obligor and obligee.
warranty against eviction
buyer’s loss of or danger of losing the whole or part of a thing by:
physical dispossession by a person with a legal right OR
when a third person has perfect title
under default rules, if evicted, buyer gets back original price, value of fruits returned, cost of lawsuit and damages, tho no attny fees
if co-surety released by creditor
then remaining co-suretys are solidarily liable as to the remaining amount, minus the released surety’s presumed equal virile share
personal actions prescriptive period
10 years
personal obligation definition
an obligation where an obligor owes a performance to an obligee
Duration of the lease:
a lease doesnt need to have a precise or fixed term to be valid
however, it must be limited in duration: we dont allow perpetual leases: statutory maximum is 99 years
a term may be fixed (for one year) or indeterminate (until i leave my current job)
in absence of a fixed term, law will supply an indeterminate term:
agricultural leases are year to year
any non-agricultural immovable or residential movable (mobile homes) is month to month
a non-residential lease of a movable is day to day, unless rent fixed for shorter/longer period (hourly,/weekly), in which case that is the term
Lessee rights to improvements:
lessee’s primary obligation is to restore property to pre-lease condition
lessee can take any improvements with him
if lessee leaves without taking improvements, then lessor can:
can take ownership of improvements and reimburse lessee either their cost or enhanced value of the thing OR
lessor can demand that lessee remove improvements within reasonable time
if lessee does not:
then can have them removed at lessee’s expense OR
appropriate the improvements, without paying for them (must send certified letter stating that he is doing this)
classification of obligations
real vs personal strictly personal vs heritable unilateral vs bilateral conditional : suspensiive / resolutory term obligation solidary vs joint vs several obligations conjunctive vs alternative divisible vs indivisible
Joint obligations:
Exist when multiple obligors owe a single performance, but they will each pay/do their part
Natural obligations:
Exists when the law implies a particular moral duty to render a performance.
Examples:
A prescribed debt. Once a debt prescribes, the obligee cannot bring suit to enforce. Therefore, no civil duty to perform, but the law implies a moral duty to perform.
A debt discharged in bankruptcy
An obligation incurred by one who lacks capacity
Dispositions in a will that is null for lack of form
capacity rules
every person has capacity except:
minors other than Ks related to necessary support, education, or his business (also excepting reasonable reliance on a minor’s lie)
interdicts
person deprived of reason = this means a person with temporary impairment (drunk) or a pervasive one which has not caused interdiction yet (alzheimers) –> relative nullity
if it’s an onerous contract, where other party neither knew or should have known of the deprivation of reason –> enforceable
Suretyship definition
an accessory contract where the surety binds himself to a creditor in order to guarantee an obligation if that principal obligor fails to pay
the surety promises that she will pay one or more of the debtor’s debts, if she fails to pay
suretyship contract depends on the enforceability of the principal obligation
surety contract must be express and in writing
