General Terms and Elements Flashcards
How to remove curator
Any interested party petitions court for good cause shown that:
- Clear showing that curator is not performing their duties, and
- A change in curator is in the best interests of the interdict.
Look to following factors - MRGOIA
- Misapplied property w/ gross neg.
- failure to Render an account
- Gross misconduct or mismanagement
- failure to Obey court order
- Incapable of performing duties
- Abuse of interdict, failure to educate, etc.
Final Spousal Support considerations
(TAFCRIED) Taxes Age and Health Financial obligations Custody Rehabilitation Income and means Earning capacity Duration of Marriage
Personal servitude
Charge on a thing for the benefit of a person
Trustee duties
- Fiduciary
- Reasonable prudence
- No self dealing
- Must account
PMSI
Non-inventory collateral:
If perfected by filing w/in 20 days of delivery - priority over secured creditors and lien creditors
Inventory Collateral:
Super priority if perfected by
1. filing w/in 20 days of delivery, AND
2. Notice to other secured creditors regarding interest in the collateral
Obligation of seller
- Deliver thing
- Warrant the thing against eviction
- Warrant the thing against redhibitory defects
- Warrant that thing is reasonably fit for intended use
Capacity to Donate means what exactly?
able to comprehend, generally, the nature & consequences of his disposition
Aleatory contract
Existence/extent of performance depends on an uncertain event
In regards to damages for breach of K, what is the difference between being in GF or BF?
Good faith obligors are only liable for reasonably foreseeable at the time the contract was madeBad Faith obligors are liable for all damages that are a direct consequence of the breach if intentional or malicious
Procedural Due Process
If a state action deprives a citizen of a vested liberty or property interest;
Procedural Due Process requires:
- notice, and
- a meaningful opportunity to be heard
Redhibitory Defect definitions
Defect that renders the thing useless or its use is so inconvenient that buyer would not have purchased it. (Entitled to rescission)ORDefect that diminishes usefulness such that buyer would have paid less for it. (Entitled to quanti minoris - reduction in price)
Vices of Consent - Fraud
Misrepresentation/suppression of truth with the intent to obtain an unjust advantage.
Prohibited substitution
Donation to 1st donee with a charge to preserve and transmit the property to another on donee’s death
How to determine whether or not an obligation is revocable or irrevocable
Revocable is default rule
Irrevocable specifies a period for acceptance or demonstrates a time within which to accept
Speech by Public Employees
- The speech must relate to a matter of public concern; AND
- The employee’s free speech interest outweighs the government interest in efficiently delivering public services
Products Liability under LPLA
- Manufacturer
- Injury proximately caused by unreasonably dangerous feature of product.
Unreasonably dangerous: construction/composition, design, inadequate warning, breach of express warranty
- Injury occurred during reasonably anticipated use of the product
Use and management of Co-owned things
- According to agreement or destination of the thing
- Alienation and improvements require unanimous consent of other co-owners
- Non partition agreement up to 15 years
Judicial mortgage
Recorded money judgement in mortgage records where debtor owns an immovable
How does one calculate a legitime
- Aggregate gross estate
- Subtract estate debts
- Fictitiously add gifts from the last 3 years= ACTIVE MASS
- Multiply active mass by fraction of forced portion (1 FH = 1/4; 2+ FH = 1/2)
- Divide forced portion by number of FHs
Content Restrictions
- A general, content-based restriction will receive strict scrutiny
- Impermissible content regulations either punish one type of speech over another, or seek to regulate based on the message in the speech
Obligations of curator
Owes duty to exercise reasonable - 1. Care 2. Diligence 3. Prudence And act in the best interests of the interdict
Does a lessee have right to improvements they have made?
Yes, w/ permission, but under condition to restore property to former condition
Reinscription
- Name mortgagor
- Provide number of original filing
- Declare mortgage reinscribed
Inscription of mortgage
- 10 years from date of execution
2. If matures in more than 9 years from execution, then it is viable for 6 years past maturation date
What is Renunciation, and ow does it compare to Remission?
Renunciation is when an obligee renounces solidarity in favor of one or more obligors. Functionally, this means that the obligee will only look to the obligor who has had solidarity renounced only for his portion - unless other solidary obligor is insolvent Remission is when an obligee remits the debt of an obligor, extinguishing his performance of debt. Other solidary obligor will still owe one performance minus the remitted share.
Watson Factors
- Inadvertence or awareness of danger?
- How great was the risk?
- What utility/significance derived from conduct?
- Capacity of actors - inferior or superior
- Extenuating circumstances?
Prior Restraint
- permitted in only extreme cases
2. Any prior restraint of speech is subject to a heavy presumption of constitutional invalidity
Perfection of sale
Ownership transfers upon agreement upon the thing and price;
risk of loss transfers upon delivery
Vices of Consent - Duress
Reasonable fear of unjust or considerable injury
Lesion
- Sale of corporeal immovable
- Price was less than half of FMV
Seller can have property returned along with payment, or the buyer can keep and pay supplemental amount of money to reach FMV
- 1 year Rx
Simulation
Parties agree that the K does not express their true intent.
Absolute simulation - agreement that K produces no effects between the parties
Relative simulation - agreement that contract will produce an effect different than the one recited in the K
Revoking an inter vivos donation for ingratitude requires a showing of
- An attempt on the life of the donor, or
2. Cruel treatment, or Grievous injury
Define an interdict
A person that is, due to mental and/or physical infirmity, is unable to consistently make reasoned decisions regarding the care of his person and/or property
EQUAL PROTECTION
Trigger: fed/state treats a group differently
5th /14th Amend prohibit denial of equal protection
Strict scrutiny (narrowly tailored, compelling) Ex - Fundamental right, Race, Alienage
Intermediate scrutiny (substantially, important) Ex - Gender, Illegitimacy, Wealth
Rational basis (rationally related, legitimate) Everything else
Requirements for marriage
- Absence of legal impediment
- Ceremony presided over by qualified celebrant and two witnesses (both parties are present)
- mutual consent verbally expressed
Buyer’s obligations
- Pay price
2. Take delivery
Describe the procedure and requirements to remove a case to federal court.
- Determine if removal is timely! - Defendant/s have 30 days from service of the complaint (calculated by date of last defendant served)
- Obtain consent of all defendants to remove
- Prepare and sign notice of removal stating grounds for Federal SMJ & attach all state court documents to notice
- File notice and state court docs in federal court
- Provide plaintiff with a copy of the notice, state docs & memo explaining reasons for removal
- File notice and attachments (state court docs and memo provided to plaintiff) in state court.
Removal is effective as of filing in state court
Initial Report - Corporation
- Signed by each incorporator
- Location and address of corp office
- Name and address of registered agents
- Name and address of initial directors (if any)
Assault (torts)
- Intent to assault or batter, and
2. Reasonable apprehension of an imminent battery.
Effect of lesion
Buyer can return the thing and get money back, or keep and make a supplemental payment
Interim Spousal Support
- need of claimant spouse
- Other spouse has ability to pay
- Purpose is to maintain SOL
Negligence
- Cause in fact - but for and substantial factor
- Duty - reasonable person
- Scope of Duty - foreseeability and ease of association, Pitre Factors
- Breach - Hand Formula B>PL
- Injury
Changing Custody in a Consent Decree
- material change of circumstances and
2. modification to custody is biotch
Requirements for formation of an LLC
Articles of Organization & Initial Report
Articles should include the following:
(1) name of the LLC
(2) the purpose for which it was formed or “to engage in any lawful activity for which LLCs may be formed”
(3) if low profit LLC
Initial Report should have:
- Name of LLC
- address of LLC main office,
- name and address of registered agents, and persons vested w/ power to manage
- Signature of at least 1 person that signed articles of organization
What is fraudulent joinder doctrine
federal removal jurisdiction premised on diversity cannot be defeated by the presence of an improperly-joined nondiverse and/or in-state co defendant.
TEST: Plaintiff has “no reasonable basis” for the “possibility” of recovery against a non-diverse Defendant
Predial servitude
Charge on a servient estate for the benefit of a dominant estate.
Define Community Property
Legal regime of the community of acquets and gains in which each spouse owns an undivided one half interest.
Changing Custody on a Considered Decree
A change in circumstances has occurred such that either
(a) the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, OR
(b) harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child
Reconduction
- Lease with fixed term - expired
- Reconducted if lessee still in possession
- No steps taken to terminate lease
Terms remain same but duration changes
How is consent expressed in conventional obligations?
Manifested by offer and acceptance
When does a Mandatary require express authority?
Acts of alienation, inter vivos donations, accept or renounce succession rights, Contract a loan remit a debt, suretyship, Endorse a promissory note, Healthcare decisions
Follow “Equal Dignities” rule - if a specific action has form requirement, mandatory authority must be conferred in same way.
Restrictions on the Time, Place, or Manner of Expression
The restriction:
(1) may not be a thinly-veiled content restriction and
(2) must be no greater than necessary to achieve the government’s stated purpose
Redhibitory Defect Elements
Defect must be:
- Non apparent
- Not known to buyer at time of sale
- Existed at time of delivery
- Meet definition (useless/so inconvenient…)
Elements of a sale
- Agreement
- Object
- Price in money
Multiple Indebtedness Mortgage
Allows mortgagee to secure fluctuating future advances - MUST STATE MAX AMT OF DEBT
Assault (torts)
- Intent to assault or batter
2. Reasonable apprehension of an imminent battery
Holder In Due Course (HIDC)
- Holder
- Acquired for value
- In good faith
- No notice that it is overdue, dishonored, or is subject to any defense against it or claim to it by a 3rd party
Perfection forms
- Filing financing statement
- Possession of collateral
- Automatic on attachment
- Control (deposit accounts and ins. policies)
What are building restrictions?
Charges imposed by the owner of immovable pursuant to a general plan that governs building standards, uses & improvements
Conventional mortgage
Mortgage attaching to specific property that arises by K
- written
- amount or maximum allowed at any time
- Signed by mortgagor
- Precisely describe situation of immovable
Emancipation
- 16 or 17 years old
- Why good cause exists
- Full or limited
- List minor’s property
Slip and fall “merchant statute”
Manager has duty to customers to exercise reasonable care to keep aisles, floors and passages in a reasonably safe condition
- Condition presented an unreasonable risk of harm
- Harm was reasonably foreseeable
- Merchant had actual or constructive notice of condition
- Merchant failed to exercise reasonable care
DORMANT COMMERCE CLAUSE
Trigger: If state law discriminates against interstate commerce in favor of intrastate commerce. per se unconstitutional;
Must show:
(1) justified by important non-economic state interest and
(2) no non-discriminatory alternative
If state law “unduly burdens” interstate commerce, apply balancing test:
(1) how substantial is the burden,
(2) purpose of the law (need legitimate, local public interest),
(3) important enough to justify the burden
Reduction in purchase price for defect
Quanti minoris - reduction in price in lieu of damages or rescission
Free Exercise Clause
General test to determine whether a free exercise exception to a state law is required
- Does the person have a sincerely held religious belief?
- Is that belief burdened by the state regulation?
If yes to both, to avoid an exception the state must show that:
- The requirement or regulation is necessary to an important state goal; AND
- An exception would substantially hinder the fulfillment of that goal
SUBSTANTIVE DUE PROCESS
Trigger: Gov’t prohibited from taking or depriving a person of life/liberty/prop w/o DP
- Placing a substantial burden on a fund right
- Strict Scrutiny if fund. right; otherwise apply rational basis
Loan for consumption
K whereby lender delivers fungible and consumable things to borrower. Borrower is permitted to consume the things, but is bound to replace w/ things of same kind and quality
Mandatory statement in Articles of Inc.
- Name of Corp
- Purpose
- Number of shares
- Par/no par value
- If more than one type of stock
- Duration (unless perpetual)
- Name & address of incorporators
Modes of inheritance
- Right
- Representation
- Transmission
Vicarious Liability
- Employment Relationship
- Course and scope of employment
- Underlying fault
How long is a financing statement viable for?
Five years from date of filing, but may file a continuation statement w/in 6mos of expiration
Pitre Factors
- Need for compensation
- Development of precedent
- Moral aspect of D’s conduct
- Efficient admin of law
- Deterrence
- Capacity to distribute or bear loss
Right of use
A right of use confers to the grantee any advantage upon a servient estate that could have been established by predial servitude in favor of a dominant estate.
Ownership by Accession
Ownership includes by accession everything the thing produces or is united with it
Component parts of a building or other construction
- Things that are attached to a building and that, according to prevailing usages, serve to complete a building of the same general type, without regard to its specific use, are its component parts.
- Things that are attached to a construction other than a building and that serve its principal use are its component parts.
- Other things are component parts of a building or other construction if they are attached to such a degree that they cannot be removed without substantial damage to themselves or to the building or other construction.
Default Judgment Procedure
- 15 days to answer petition
- Preliminary default
- Confirmed 2 days after entry of default
- Personally served on defaulting party
What is a curator
An individual appointed by the court to manage the person and/or property in accordance with the interdict’s limitations
Other Construction Permanently Attached to the Ground
An other construction is not among those things that are always immovable (i.e., tracts of land with its component parts, buildings withits component parts and standing timber).
If a landowner owns the other construction, it is a component part of the land and thus immovable.
If the builder of an other construction has satisfied the relevant criteria for separate ownership, the other construction will be classified as movable.
Procedure for Interdiction
- File petition for interdiction
- states limits of defendant and why good cause exists for interdiction
- notice to defendant and relatives prior to hearing - Demonstrate facts for interdiction by C&C
- Get appointed curator
How to renounce in succession
- Express
- In writing
- Must know of decedent’s death
- Must know of rights as successor
Worker’s Compensation Act
- Employment Relationship
- Injury arose out of employment and in the course of employment
- Compensable injury
How to sell property of minor (as tutor)
- Description of property, value, reasons to sell
- Tutor’s recommendation
- Written concurrence from under-tutor
If undertutor disagrees, file rule to show cause to force undertutor to explain on the record his reasons
General requirements for a donation
- Capacity to give and receive
2. Donation must be in proper form
Define “Fruit” and define “product”
Fruits are things that are produced by or derived from another thing without diminution of its substance.
There are two kinds of fruits; natural fruits and civil fruits.
Natural fruits are products of the earth or of animals. (Accrued when severed)
Civil fruits are revenues derived from a thing by operation of law or juridical act. (Accrue day by day)
Products are things that are produced by or derived from another thing that result in diminution of its substance
What happens if lessee fails to remove improvements?
- Appropriate ownership by paying lessee lessor of costs or value, or
- Demand removal in writing, and remove at lessee’s expense or appropriate ownership w/ notice by cert. mail.
Mortgage
Non possessory accessory real right in immovable giving the holder the right to seize and sell upon debtor’s default
Joint representation allowed?
Maybe - court should conduct a colloquy with Ds to assure that they both understand the possible issues that might arise from joint representation
Gratuitous obligation
Cause for binding is to confer a benefit or advantage
Lesion Requirements
- Corporeal immovable
- Seller can bring action only
- Price was les than 1/2 FMV at time of sale
Battery (torts)
- Intent (purpose or s.c.) to contact in a prohibited way,
- Physical contact, and
- Harm or offense.
Warranty Against Eviction - eviction occurs if
- 3rd party has perfect title even if buyer has not lost physical control
- Non-apparent servitudes not declared
Onerous obligation
Cause for binding was to confer an advantage
Requirements for notarial will
- Written
- Dated
- Signed on bottom of each page and at the end
- Testator declares that the instrument is his and follows formalities in the presence of notary and two witnesses who then sign the Attestation clause.
Oblique action
Creditor seeks to enforce a heritable/transmissible right that debtor has failed to assert and the failure causes or increases debtor’s insolvency
Elements of redhibition claim
- Defect non-apparent
- Not known to buyer at time of sale
- Defect existed at time of delivery
- Defect meets definition of redhibitory defect
Remember to discuss error and fraud if redhibition is brought up in a Q
Termination of Lease
- Expiration of term
- Notice if no term
More than one month = 30 days
Month to month = 10 days before end
Negotiable Instrument
- Written and signed
- Unconditional
- Promise or order
- Pay a fixed amount of money
- To order or to bearer
- On demand or definite time
- No extraneous undertakings
What is the effect of modification of obligation or impairment of real security?
If commercial suretyship - extinguished to the extent that the mod or impairment caused actual injury
If ordinary suretyship - suretyship is extinguished
Liability of seller for Redhibitory Defect
BF - purchase price, expenses, damages, atty fees; no opportunity to repair + Rx 1 year from DISCOVERY
GF - purchase price, reasonable expenses; Opportunity to repair; Rx - 4 years from delivery or 1 year from discovery
***Residential property is 1 year from delivery if seller in GF
Possessory action elements
- Possession at time of disturbance
- Quiet possession w/out interruption for one year prior to disturbance
- Disturbance in law or fact
- Action instituted w/in one year of disturbance
Define donation inter vivos
Contract whereby the donor divests himself at present and irrevocably of a thing given to the donee and the donee accepts it
Mortgage elements
(WASP) written, amount, signed, precise
- Written
- Signed by mortgagor
- Describe and state amount of secured obligation or max amount at any given time
- Precisely describe immovable property
Revocatory action
Creditor seeks to annul a K that obligor entered into bc it causes or increases obligor’s insolvency
What is a partnership and what elements
A juridical person created by written or oral K b/tw 2+ persons to combine efforts/resources and collaborate at mutual risk for common profitElements(1) Consent and intent(2) Make contributions with economic value(3) Assume risk and profits
Perfection of Ch. 9 security interest by filing
UCC-1 financing statement must be filed in the UCC records office of any parish. Requires: 1. Debtor full accurate legal name 2. Creditor's name 3. Collateral must be described (can be generic)
Liability of good faith seller when redhibitory defect
- Restoration of purchase price and expenses, or reduction in price
- Seller has opportunity to repair, remedy or correct defect
PMSI - Inventory Collateral
Super-Priority over inventory if Creditor does the following BEFORE DELIVERY OF COLLATERAL
- PMSI perfected w/in 20 days, and
- Notification to secured creditors
Takings Clause
Trigger: fed/state takes private land
(1) Is there a taking?
- Physical occupation, denial of substantially all economic uses
(2) For public use?
- “public benefit” is enough.
(3) If taking, owe just compensation
Filiation - what is the burden for a child in an avowal action?
Depends:
father alive - POE,
father deceased - C&C
Liability of bad faith seller with redhibitory defect
- Restoration of purchase price, expenses, damages, atty fees
- No right to repair/remedy/correct defect
Suretyship
Accessory K (conventional obligation) whereby the surety binds himself to creditor to fulfill obligations of principal K w/ debtor upon debtor’s failure to do so
Elements of a Lease
Agreement between parties as to:
- Thing
- Rent
Record action not required to have effect between parties. Must be recorded to effect 3rd parties
Bona Fide Purchaser Doctrine
- Stolen thing remains owned by true owner.
- Cannot be sold
True owner can get thing back from transferee, but may be forced to reimburse transferee if they purchased the thing in GF from a merchant that customarily sells such things
Mandate liability to 3rd parties.
Fully disclosed - if w/in scope of authority, principle is bound
Fully undisclosed - personally bound
Partially disclosed - bound until principal is disclosed
Universal successor
Succeeds all rights and charges
Procedure for appointing curator
- take oath
- Prepare detailed list of interdict’s property setting out the FMV.
- Court appoints curator and undercurator
Agreements preparatory to sale
- Option - unilateral K to sell or buy whereby grantor is bound to buy or sell if grantee accepts w/in time specified
- Right of first refusal
- K to sell - bilateral agreement to enter a sale at later date that has all the required elements of a sale that can be enforced by specific performance (ex. Earnest money)
Vulgar substitution
Donation to 1st donee with charge that if 1st donee is unable or unwilling to accept, then the property will go to 2nd donee
Remedies for breach
Specific performance, or Damages
Vices of Consent - Error
Bears on principal cause (why parties contracted), and the other party knew or should have known of principal cause
Formation of corporation
- Application to Sec of State reserving name
- Articles of Incorporation
- Initial Report
What does a lawyer signing pleadings signify?
He has read the pleadings and to the best of his knowledge, information and belief
- No improper purpose such as to harass, delay or increase costs
- Warranted by law or non frivolous modification/extension/reversal thereof
- Has or is likely to have evidentiary support
- Each denial is warranted by evidence or reasonably based on lack of info or belief
PRIVILEGES AND IMMUNITIES
Trigger: state treats citizen from other states differently
If discriminatory treatment of person from different state for right to travel, own property, or transact business, then P&I problem treatment okay if closely related to substantial state interest
How does one qualify as a tutor?
- take oath
- Furnish security in form of bond or legal mortgage in value equal to value of property
- Court issued letters of tutorship
- Undertutor
Loan for use
Gratuitous K whereby lender delivers a non consumable thing to borrower. Borrower must return and act as prudent administrator during use
SUPREMACY CLAUSE
Trigger: state law and federal law collide; state is preempted if:
- clear congressional intent to preempt
- no room left for states to regulate,
- fed interest is so dominant, or
- state policies produce inconsistent results w/ fed objectives
Otherwise, state can fill in the gaps of fed law
ESTABLISHMENT CLAUSE
Trigger: fed/state helping religionLemon test:(1) Govt program have secular purpose?(2) Primary effect of program to neither advance nor inhibit religion?(3) Excessive entanglement with religion?
Real subrogation
When a thing forming part of separate property is converted into another thing, the mass of separate property is not diminished, but instead follows into the new thing
How does one reserve fruits of separate property, and what requirements?
File a declaration of paraphernality in the conveyance records of the parish in which the immovable is located
Declaration should identify the property as separate, and a copy should be delivered to the spouse (consent immaterial) before filing
General requirements for a donation
- Capacity to give
- Capacity to receive
- Valid form for thing donated
Contract requirements
- Capacity
- Consent
- Lawful cause
- Lawful object
