Liberative Prescription Flashcards
Prescription - Generally
Prescription is the effect of time on legal rights.
3 Types of Prescription
(1) Acquisitive: a mode of acquiring ownership or other real rights by possession for a period of time
(2) Non-Use: a mode of extinction of a real right other than ownership as a result of failure to exercise the right for a period of time
(3) Liberative: (like the common law “statute of limitations”) is the barring of an action because of the passage of time.
Computation of Time
- Liberative prescription commences to run from the day a cause of action arises and its judicial enforcement is possible.
- If computed in days, the day that marks the commencement of prescription is not counted.
- Prescription accrues upon the expiration of the last day of the prescription period. If that day is a legal holiday, prescription accrues the next day.
- If a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of commencement of prescription.
Contractual Freedom to Modify Prescription
- Parties cannot exclude prescription.
- Parties generally cannot specify a longer prescriptive period than that established by law. However, after a liberative prescription has commenced to run, but before it accrues, an obligor may by juridical act extend the prescriptive period under the following conditions:
(i) Extension does not exceed one year (although successive extensions may be granted year after year); and
(ii) The extension is express and in writing - Parties to an obligation may shorten prescription – though it is tricky as courts are split on whether this is allowed. May not make it “more onerous”.
Renunciation of Prescription
- Renunciation is the abandonment of rights derived from the accrual of prescription.
- It may be renounced only after it has accrued and commences to run anew from the time of renunciation.
- There is no general form requirement. It may be either express or tacit, but must clearly demonstrate the intention of the party to give up the legal advantages resulting from the accrual of prescription.
- A writing is required when a party is renouncing acquisitive prescription that has accrued in his favor or has promised to pay a prescribed debt.
Example of Renunciation
(1) Suppose someone owes you money, and the debt is prescribed (the time to legally enforce it has passed). If the debtor renounces this prescription, they effectively acknowledge the debt and restart the time limit for you to claim it. This renunciation must be done in a writing.
1 Year Liberative Prescription Periods
(1) Actions Based on Tort:
- Prescription commences on the date that injury or damage is sustained.
- Special rule for damage to an immovable: one year from time owner knew or should have known of damage.
(2) Actions Against Home Inspectors:
- Claims related to a faulty home inspection must be brought within one year of the date of the act or omission giving rise to the cause of action. This period does not apply to actions based on fraud.
(3) Revocatory Actions:
- Prescription commences from the time the obligor (creditor) learned or should have learned of the act or the result of the failure to act. However, suit may not be brought more than three years from the date of the act or result.
2 Year Liberative Prescription Periods
(1) Delictual Actions Related to Crimes of Violence:
- Must file within two years from the day the injury or damage is sustained. “Crimes of violence” are defined by Louisiana criminal law.
3 Year Liberative Prescription Periods
(1) Actions on:
- (x) Past due rent; annuities; (x) money lent; (x) merchants’ open accounts; compensation for services rendered including wages and salaries; and recovery of underpayments or overpayments of royalties from the production of minerals.
- Prescription commences to run from the day payment is exigible.
(2) Action by Client Against Attorney for Return of Papers:
- Prescription commences to run from rendition of judgment in suit or termination of attorney/client relationship.
5 Year Liberative Prescription Periods
(1) Promissory Notes (negotiable or not) and Negotiable Instruments:
- Prescription commences from the day payment is exigible.
- For term instruments, from when payment is due.
- For demand notes, from when payment is demanded, or five years from execution if no demand is made.
- For installment payments, each installment has its own date; if there’s an acceleration clause, five years from acceleration.
(2) Actions to reduce excessive donations.
(3) Actions to annul a testament.
(4) Actions to rescind a partition.
(5) Arrearages of spousal support or installment payments for contributions to education.
(6) Actions against professional engineers, surveyors, professional interior designers, architects, and real estate developers.
- Includes actions related to planning, design, construction, or building of property.
- These periods are peremptive and do not apply in cases of fraud.
- Note potential conflict with 10-year period for defects in construction by contractors or architects.
(7) Actions for damages for harvesting timber without the owner’s consent.
(8) Actions to set aside documents or instruments executed under a power of attorney if the authority was lacking or the power of attorney was invalid.
Prescription begins from the date the document or instrument was recorded.
10 Year Liberative Prescription Periods
(1) All personal actions not subject to special liberative prescription rules.
- Examples of Special Rules:
(i) Vices of consent: five years
(ii) Redhibition: one, two, or ten years
(iii) Lesion beyond moiety: one-year peremption
(iv) Seller’s failure to deliver full extent of premises for immovables: one year
(2) Actions against contractors or architects for defects in construction, renovation, or repair of buildings or other work.
- Note: Potential conflict with five-year peremptive periods for professional engineers, surveyors, professional interior designers, architects, real estate developers, and related actions. Mention both periods and unresolved conflict on exams.
(3) Money judgments (unless revived).
(4) Actions for arrearages of child support.
(5) Actions for debts to public institutions (other than student loans), if the debt is in writing.
30 Year Liberative Prescription Periods
(1) Suits for recognition of right of inheritance and recovery of whole or part of succession.
(2) Actions for student loans due to charitable or educational institutions, if the debt is in writing.
Interruption of Liberative Prescription
- “Complete Restart”
- If prescription is interrupted, the time that has not run is not counted. Prescription commences to run anew from the last day of interruption.
- Interruption of prescription occurs before the prescriptive period fully runs out, resetting the clock to zero when an event like debt acknowledgment happens.
- Interruption affects ongoing prescriptive periods, while renunciation applies to periods that have already lapsed.
Causes of Interruption
(1) Filing of a Lawsuit:
- Prescription is interrupted by filing suit in a court of competent jurisdiction and venue.
- If the court lacks jurisdiction or if the venue is improper, prescription is interrupted by service of process.
- It continues as long as the suit is pending.
Interruption is considered as never having occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute.
- Exception: Settlement and subsequent dismissal of a defendant pursuant to a transaction or compromise does not qualify as a voluntary dismissal.
(2) Acknowledgment of a Debt:
- Prescription is interrupted when one acknowledges the right of the person against whom one has commenced to prescribe.
- Acknowledgment can occur in many ways: verbally, in writing, by making a partial payment, by paying interest, and by pledging security.
Suspension of Liberative Prescription
- The period of suspension is not counted toward the accrual of prescription. Prescription commences to run again upon the termination of suspension.
- Prescription runs against absentees and incompetents, including minors and interdicts, unless an exception applies.
- Prescription is suspended as between:
(i) Spouses during marriage.
(ii) Tutors and minors during tutorship.
(iii) Curators and interdicts during interdiction.
(iv) Caretakers and minors during minority.
(v) Parents and children during minority.
Exceptions (Minors During Minority): Prescription is suspended for minors for:
(i) Action to annul a testament.
(ii) Action to reduce an excessive donation.
(iii) Action for rescission of partition.
Exceptions (Compromise): Prescription is suspended on claims settled in a compromise when entered into before filing suit.- If the compromise is rescinded or dissolved, prescription on the settled claims begins to run again from the time of rescission or dissolution.
