Liberative Prescription

Question 1

What is prescription?

Answer 1

The effect of time on legal rights. Three types–acquisitive, liberative, and prescription of nonuse. Acquisitive and non-use relate to proeprty rights and are testable on Code I. (acquiring and losing real rights).

Question 2

What is liberative prescription?

Answer 2

The barring of an action because of the passage of time; e.g., statute of limitations.

Question 3

How is liberative prescription calculated?

Answer 3

1. Commences to run from the day after a cause of actiona arises and its judicial enforcement is possible. 2. Day that marks the commencement of prescription is not counsed. Last day of the prescriptive period counts unless it is a legal holiday. 3. 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.

Question 4

What is the contractual freedom to modify prescription?

Answer 4

1. Parties cannot exclude prescritpion; 2. cannot specify a longer prescriptive period than established by law; 3. Cannot make the requirements of prescription more onerous.

Question 5

How does a party renounce prescription?

Answer 5

1. After prescription has accrued in a party’s favor, he may renounce it. 2. To renounce prescritpion, the renouncing party must have the capacity to alienate. No general form requirement for a renunication. May be either express or tacit. Must be in writing if person renounces acquisitive prescription that has accrued in his favor.

Question 6

What actions have a one-year liberative prescription period?

Answer 6

1. Actions based on tort. 2. Prescription commence on the date that injury or damage is sustained. If immovable, one year from time owner knew or should have known of the damage; 3. Aactions against faulty home inspectors must be brought within one year.

Question 7

What actions have a two-year liberative prescription period?

Answer 7

Delictual actions for crimes of violence prescribe two years from day of injury or damages are sustained.

Question 8

What actions have a three-year liberative prescription period?

Answer 8

Annuities; past due rent; money lent; merchants’ open accounts; compensation for serviced rendered including wages an dsalaris; action by client agaisntattorney for return of papers. Prescription commences when payment is exigible.

Question 9

What actions have a five-year liberative prescription period?

Answer 9

1. Promissory notes; actiosn to reduce excessive donations; actions to annul a testament; actions to rescind a partition; arrearages of spousal support or installment payments awarded for claims to contributions to education; actions against profession engineers and real estate developers; actions for damages for the harvesting of timber without the consent of the owner; actions to set aside documents/instrument on teh ground the party was without authority to execute them. Runs from date the document/instrument was recorded.

Question 10

What actions have a ten-year liberative prescription period?

Answer 10

1. All personal actions (not real property rights) not subject to special liberative prescription rules. 2. Actions against contractors/architecht for defects in construction; 3. Money judgments; 4. Actions for arrearages of child support; 5. Actions for debts to public institutions.

Question 11

What are the two ways in which prescription can be delayed?

Answer 11

1. Suspension; 2. Interruption (makes it start over).

Question 12

When is liberative prescription interrupted?

Answer 12

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

Question 13

What are causes of interruption?

Answer 13

1. Filing suit in a court of competient jurisdiction and venue; if the court lacks vanue, service of prcess. Interruption continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute.

Question 14

What is interruption by acknowledgment?

Answer 14

Prescription is interrupted when one acknowledges the right of the person against whom one has commenced to prescribe. Acknowledgment may occur in many ways: verbally, in writing, by making a partial payent, by paying interest, and by pledging security.

Question 15

What is suspension of liberative prescription?

Answer 15

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

Question 16

What are legislative causes of suspension?

Answer 16

Prescription is suspended as between: 1. Spouses during marriage; 2. Tutors and minors during tutorship; 3. Curators and interdicts during interdiction; 4. Caretakes and minors during minority; 5. Parnets and children during minority.

Question 17

When is prescription suspended in favor of minors during minority for the following actions?

Answer 17

1. Actions to annul a testament; 2. Action to reduce an excessive donation; 3. Action for rescission of partition. Prescription is suspended on claims settled in compromised when it is entered into prior to filing suit. If compromise is rescidned/dissolved, prescription on the settled claims begans to run again form the time of rescission or dissolution.

Question 18

What is contra non valentem?

Answer 18

Judicial exception for suspension.

Question 19

What is peremption?

Answer 19

A period of time fixed by law for the existence of a right. Differs from prescription in three ways: 1. Right is extinguished by the passage of time; 2. Generally immune from the principles of suspension and interruption of prescription; 3. Peremption may be supplied by the court (do not need to plead, like prescription)

Question 20

What conflicts of laws apply to liberative prescription?

Answer 20

1. When substantive law of LA applies, apply its prescription law. 2. If the substantive law of another state would apply, apply LA prescription law and must be dimsised it if would not be barred in the state whose substantive law governs the merits and there are compelling considerations of remedial justice to maintain the suit. Follow Louisiana prescription rules even if another state’s substantive law applies, unless the interests of justice require otherwise.