Liberative Prescription Flashcards
Liberative Prescription Generally
a. Acquisitive prescription and prescription of non-use are on Code I exam, liberative prescription is on Code III.
b. Liberative Prescription = barring of an action due to passage of time
c. Computation of Time
i. Liberative prescription runs from day of cause of action arises.
ii. If computed in days, the day that marks commencement of prescription is not counted. Last day not counted if a legal holiday.
iii. If prescriptive period consists of one or more years, it accrues on expiration of the day of the last year that corresponds with date of commencement of prescription.
d. Contracts and Modifying Prescription
i. Parties cannot exclude prescription by contract and cannot specify a longer prescriptive period than Code specifies.
ii. Parties cannot make requirements of prescription more onerous.
e. Renunciation of Prescription
i. After prescription accrues in favor of a party, he can renounce it. To renounce, a party must have the capacity to alienate.
ii. No form requirements for this renunciation, just requires intent.
One Year Liberative Prescription
Actions based in tort.
- Prescription commences on date that injury sustained.
- Damage to immovable = one tear from owner knew or should have known of damage.
Actions against home inspector for faulty home inspection (not fraud)
Two Year Liberative Prescription
Delictual actions for crimes of violence – two years from injury
Three Year Liberative Prescription
Annuities, past due rent, open accounts, compensation for services rendered = commences when payment is exigible
Action by client for return of papers = termination of attorney-client relationship or rendition of judgment in a suit
Five Year Liberative Prescription
Promissory instruments and negotiable instruments
Actions to reduce excessive donations
Actions to annul a testament
Actions to rescind a partition
Arrearages of spousal support or installment payments for contribution to education
Actions against professionals (engineers, surveyors, interior designers, architects, and real estate developers) – actually peremptive!
Actions for damages for harvesting timber without consent
Actions to set aside documents executed by someone without power of attorney, runs from date of recordation of document
Ten Year Liberative Prescription
i. All personal actions not subject to other prescription rules – includes contract actions generally, but excludes:
1. Vices of consent (5 years), redhibition (1 year or 4 years), lesion beyond moiety (1 year peremptive), seller’s failure to deliver full extent of premises (1 year)
ii. Actions against contractors or architect for construction defects
iii. Money judgments
iv. Arrearages of child support
v. Actions for debts to public institutions (not student loans)
Thirty Year Liberative Prescription
Suit for recognition of inheritance and recovery of succession
Actions for payment of student loans (if in writing)
Interruption and Suspension of Liberative Prescription
3 Ways –
Suspension (tolling),
Interruption, or
Renunciation After Accrual
Interruption
i. If prescription is ‘interrupted’, time that has run isn’t counted. Prescription commences to run anew from last day of interruption.
ii. Causes of Interruption
1. Interruption by Filing Suit
a. Interrupts if suit filed in court of competent jurisdiction and venue. If one or the other is lacking, prescription is interrupted by service of process.
b. Interruption continues as long as suit as pending.
c. Failure to prosecute or abandoning suit = interruption considered to never have occurred.
2. Interruption by Acknowledgement – occurs when one acknowledges the right of person against whom one has tried to prescribe. Can be verbal/written, or by making partial payment.
Suspension
Period of suspension is not counted towards accrual, prescription starts to run again upon termination of suspension.
Prescription generally runs against all, even absentees, incompetents, minors, and interdicts, unless an exception applies suspension:
- Prescription suspended by legislature between:
a. Spouses during marriage,
b. Tutors and minors during tutorship,
c. Curators and interdicts during interdiction,
d. Caretakers and minors during minority,
e. Parents and children during minority - Prescription suspended in favor of minors during minority for:
a. Action to annul a testament,
b. Action to reduce an excessive donation,
c. Action for rescission of partition - Prescription suspended on settled claims if entered prior to suit. If pre-suit settlement rescinded, prescription runs from recission.
iii. Judicial Cause of Suspension – Contra Non Valentem – if tort renders victim mentally and physically unable to file, suspension will apply to that tort cause of action
iv. Disaster Suspensions – legislature can suspend any period of prescription that accrued between August 26, 2005 and January 3, 2006, they now accrue Jan. 4, 2006.
1. Additional time for those in Orleans and surrounding parishes on motion and showing that would have been timely but for Katrina
Renunciation After Accrual
Can be tacit or express by one who would benefit from prescription accruing
Peremption
Peremption = period of time fixed by law for existence of a right.
Peremptive is different from liberative prescription:
i. The right itself is extinguished when time expires.
ii. Peremption is generally immune from suspension and interruption.
iii. Peremption can be raised by court sua sponte, prescription usually must be pled by a party.
Conflicts of Law
When substantive law of LA applies, apply its prescription law.
When substantive law of another state would apply, apply LA prescription law and then:
i. If action would be barred in LA, dismissed unless not barred in state whose law governs on merits and if compelling reasons not to dismiss
ii. If action would not be barred in LA, maintain it unless it would be barred in state whose law governs on merits and no reason to dismiss it
If substantive law of another would apply, action will be barred if there is a substantive statute of limitation in that state (not just procedural) and brought on behalf of person not domiciled in or residing in LA at time COA arose.
