Liberative Prescription & Miscellaneous Code III

Question 1

What is the liberative prescription for an action for annulment of a testament?

Answer 1

5 years.

Question 2

If the substantive law of another state would govern the merits of an action brought in Louisiana, but the action is brought by or on behalf of a person who wasn’t residing or domiciled in Louisiana when the action arose, the action will be barred if

Answer 2

it would be barred in the other state and the bar there applies to the right enforceable by the law, and not to the remedy alone.

Question 3

Liberative Prescription is

Answer 3

a mode of barring of actions as a result of inaction for a period of time

Question 4

Prescription

Answer 4

limits the time in which a plaintiff may bring suit after a cause of action accrues

Question 5

Peremption

Answer 5

is a period of time fixed by law for the existence of a right

Question 6

The three types of prescription are

Answer 6

Acquisitive prescription
prescription of nonuse
liberative prescription

Question 7

Acquisitive prescription

Answer 7

is a mode of acquiring ownership or other real rights by possession for a period of time.

Question 8

prescription of nonuse

Answer 8

is a mode of extinction of a real right other than ownership as a result of failure to exercise that right for a period of time.

Question 9

Prescription begins to run

Answer 9

on the day a cause of action arises, but for the purposes of computing time, that day is not counted

Example: Victim suffers a battery on March 3, but March 4 is counted as “day one” for the purposes of computing the prescriptive period

Question 10

After prescription accrues in a party’s favor, he can

Answer 10

renounce the rights he derived by it.

Question 11

Renunciation is different from an acknowledgment of a right or obligation, which is

Answer 11

made prior to the accrual of prescription.

Question 12

Renunciation with respect to movable property may be

Answer 12

express or tacit

Question 13

Renunciation with respect to immovable property must be

Answer 13

express and in writing

Question 14

The renunciation of prescription has the same effect as an act of alienation. Accordingly, to renounce prescription, one must

Answer 14

have the capacity to alienate

Question 15

Suspension refers to

Answer 15

a period of time in which the prescriptive period ceases to run

Question 16

Per legislative action, prescription is suspended for:

Answer 16

a. spouses during marriage;
b. parents and children during minority;
c. tutors and minors during tutorship;
d. curators and interdicts during interdiction; and
e. caretakers and minors during minority.

Question 17

Interruption is similar to suspension in that it stops the running of a prescriptive period, but differs in that interruption causes the prescriptive period which had previously run to be

Answer 17

effectively erased; a period of prescription begins anew upon the termination of the interruption.

Question 18

If the action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to

Answer 18

a defendant served by process within the prescriptive period

Question 19

Interruption is considered never to have occurred if the plaintiff

Answer 19

(1) abandons the suit;
(2) voluntarily dismisses the suit; or
(3) fails to prosecute the suit at the trial.

Question 20

What is acknowledgment as it relates to prescription

Answer 20

Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.

Question 21

Acknowledgement need not conform to any particular formality; it may be

Answer 21

written or oral, express or tacit

Question 22

Contra non valentem

Answer 22

based on the principle that prescription should not run against a party who, for good cause, is unable to act.

Question 23

Contra non valentem is more likely to be applied in situations where

Answer 23

a. the plaintiff’s inability to act is due to the defendant’s willful or negligent conduct;
b. there is some legal cause which prevents courts from taking cognizance of or acting on the plaintiff’s action;
c. the cause of action is not known or reasonably knowable by the plaintiff, regardless of whether his ignorance is induced by the defendant

Question 24

Prescriptive period, delictual (tort) action not otherwise provided for by statute (e.g., negligence).

Answer 24

one year

Question 25

Prescriptive period,An action involving damage to immovable property, including an action for redhibition

Answer 25

one year

Question 26

Prescriptive period, a delictual action which arises due to damages sustained as a result of a crime of violence.

Answer 26

two years

Question 27

Prescriptive period, an action for the recovery of compensation for services rendered

Answer 27

three years

Question 28

Prescriptive period, An action for arrearages (unpaid or overdue obligations) on rent and annuities

Answer 28

three years

Question 29

Prescriptive period, an action on money lent

Answer 29

three years

Question 30

Prescriptive period, An action on an open account.

Answer 30

three years

Question 31

Prescriptive period, An action for redhibition against a seller who did not know of the existence of a defect in the thing sold

Answer 31

four years

a. The prescriptive period begins to run from the day delivery of the thing was made to the buyer, or 1 year from the day the defect was discovered by the buyer, whichever occurs first.

Question 32

Prescriptive period, An action for annulment of a testament.

Answer 32

five years

Question 33

Prescriptive period, An action for the reduction of an excessive donation

Answer 33

five years

Question 34

Prescriptive period, A personal action not otherwise provided for by statute

Answer 34

ten years

a. Courts have typically interpreted this statute as a “catch-all provision” that covers personal actions not specifically covered by any other prescriptive period.

Question 35

Prescriptive period,an action for the recognition of a right of inheritance and recovery of the whole or a part of a succession

Answer 35

30 years

Question 36

Peremption

Answer 36

is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.

Whereas the running of a prescriptive period merely prevents the enforcement of a right, the accrual of peremption extinguishes the existence of that right.

Question 37

Whereas prescription must be pleaded by a party, peremption may be pleaded by

Answer 37

a party or supplied by the court.

Question 38

A juridical act attempting to exclude a prescriptive period, to specify a longer one, or to make the passage of prescription more onerous is

Answer 38

null. However, courts have said you can shorten prescription within relevant parameters.

Question 39

Tolling agreements are

Answer 39

agreements or unilateral acts in which you’re allowed after a prescriptive period has begun to run but before prescription accrue to extend the prescriptive period for no more than one year

Question 40

Tolling agreements must be express and

Answer 40

in writing

Question 41

to create a tolling agreement, is a contract needed?

Answer 41

No. The obligor can do so by virtue of a juridical act (i.e., unilaterally).

Question 42

are successive tolling agreements allowed?

Answer 42

Yes, but each individually can be no more than 1 year

Question 43

An interruption of prescription by any one solidary obligor interrupts prescription as to

Answer 43

other solidary obligors.

All obligees benefit from an extension granted by an obligor.

Question 44

If a creditor wants to get an extension of prescription, he needs to

Answer 44

do so from each of his obligors

Question 45

a contract is a simulation

Answer 45

when by mutual agreement it does not express the parties’ true intentions

Question 46

True intent of the parties expressed in a separate writing is a

Answer 46

counter letter

Question 47

Type of simulations, Relative

Answer 47

Parties intend that contract shall produce effects between them different from those recited in contract. Produces between them effects they intended if all requirements for those effects have been met

Question 48

Types of simulations, Absolute

Answer 48

Parties intend that contract shall produce no effects between them; thus, it can have no effects between them.

Question 49

Both absolute and relative simulations may have effects as to third persons

Answer 49

The counter letter, if it exists, must have been filed (which defeats the purpose).

Counter letters cannot affect third parties in good faith.

The simulated sale of immovables cannot affect third parties, regardless of good or bad faith. The pubic record doctrine wins out here.

Question 50

A contract is absolutely null when:

Answer 50

it violates a rule of public order. It is void (this is a common law term).

2. Absolute nullity may be invoked by any person or may be declared by court on its own initiative.
3. Absolutely null contract may not be confirmed.
4. Action for annulment of an absolutely null contract does not prescribe (time cannot fix the absolute nullity of a contract).

Question 51

A contract is relatively null when

Answer 51

it violates a rule that protects a particular party

2. Relatively null contract may be confirmed.
3. Relative nullity may be invoked only by persons in whose interest the ground for nullity was established, and may not be declared by court on its own initiative.
4. Action for annulment of relatively null contract must be brought within 5 years from the time ground for nullity ceased (e.g., incapacity or duress) or was discovered (e.g., error or fraud).

Question 52

Nullity of a contract does not impair rights acquired through an onerous contract by

Answer 52

a third party in good faith

Question 53

Performance rendered under a contract that is absolutely null because its object or its cause is illicit or immoral

Answer 53

may not be recovered by a party who knew or should have known of the nullifying defect

Question 54

Revocatory Action, allows obligee to annul

Answer 54

an act of an obligor that was made after the obligee’s right arose, and that causes or increases the insolvency of the obligor

Question 55

Oblique Action, allows obligee to exercise a right that:

Answer 55

the the obligor has, but refuses to exercise, and which is causing or increasing the obligor’s insolvency (bro owes 1,000, but refuse to collect).

Question 56

All rights may be assigned, except for

Answer 56

those pertaining to obligations that are strictly personal and those prohibited by contract.

EXAMPLE: B owes A $100. A owes C $50. A doesn’t have the ability to pay C, but he says to C, “B owes me $100. Why don’t I assign my right to collect the debt against B to you, and we’ll call it even?”

Question 57

Assignments are effective against

Answer 57

debtors and third persons from the time they have actual knowledge or are given notice of the assignment.

Question 58

Assignor does not guarantee or warranty that

Answer 58

the obligor is solvent

Question 59

If the assignor guarantee that the obligor is solvent then

Answer 59

he’s only making that representation for at that moment in time, not that he will be solvent in the future

Question 60

If the assignor falsely guarantees that the obligor is solvent, then

Answer 60

the assignment is effective against the assignor – he will have to pay

Question 61

Assignee can compel assignor to furnish

Answer 61

some evidence of the obligation

Question 62

Giving in payment is a contract where:

Answer 62

the transfer of a thing in fulfillment of a debt

Question 63

The thing must be delivered to perfect the giving in payment; otherwise

Answer 63

giving in payment is subject to the rules of contract sale.

Question 64

A debtor may give a thing to a creditor in partial payment and, thereby

Answer 64

extinguish debt in proportion to the fair market value of the thing given or another agreed upon amount.

Question 65

A contract of exchange is

Answer 65

the transfer of ownership of a thing for something other than money

Question 66

A contract of exchange is not

Answer 66

the giving of a thing in exchange for some services that might be rendered. This is an enforceable innominant.

Question 67

In a contract of exchange, ownership is transferred as soon as

Answer 67

there is agreement on the things.

Question 68

A contract to exchange is an agreement to

Answer 68

trade things in the future

Question 69

Giving in payment is not perfected until

Answer 69

the thing is delivered

Question 70

A quasi-contract is

Answer 70

something that creates an obligation without the existence of a contract, but it’s almost a contract, sort of.

Question 71

Management of Affairs of Another

Answer 71

This is a quasi-contract that isn’t allowed in common law, but is perfectly fine in civil law.

Someone acts without authority, but with the reasonable belief that the act would have been approved of, had the party been notified.

May be reimbursed for necessary and useful expenses, as long as actions were prudent and done carefully.

Question 72

Enrichment Without Cause

Answer 72

quasi-contract

You did something that enriched someone else, and there was no pre-existing obligation.

2. Allows recovery to the extent of the impoverishment or enrichment, whichever is less.
3. This is a subsidiary remedy (default remedy, in default of all others–so can only use if other causes of action won’t work)

EXAMPLE: hire a lawn service to do lawn care for a yard, but service is done on incorrect lawn. can lawn man get recovery? yes.

Question 73

Payment of a Thing Not Due

Answer 73

quasi-contract

intend to pay visa bill, but accidentally send the money to the wrong address. if the person at that address receives it, he must return it.

Question 74

compromise

Answer 74

Contract whereby parties, through concessions made by one or more of them, settle a lawsuit or other dispute concerning a legal obligation or relationship.

This is the civil law term for settlement

Question 75

Requirements and Effects of a Compromise

Answer 75

1. Must be in writing, or recited in open court and transcribed.
2. Any existing uncertainty or disputed claim can be the subject of a compromise.
3. Civil consequences of an unlawful act giving rise to a criminal action may be object of a compromise, but the criminal action itself is not extinguished by the compromise.
4. Precludes parties from bringing subsequent action based upon the matter compromised.
   a. Does not affect a novation of antecedent obligation. When one party fails to perform a compromise, the other may act to enforce the compromise or to dissolve it and enforce the original claim

Question 76

A compromise can be rescinded for

Answer 76

error, fraud, and other grounds for annulment of contracts.

Question 77

for error, fraud, and other grounds for annulment of contracts, but not

Answer 77

error of law and lesion

why not? because those two things are two major reasons why people settle cases, instead of risking going to court.

Question 78

Accord and satisfaction of a compromise

Answer 78

if payment is accepted in exchange for a disputed and unliquidated claim, then it constitutes a compromise.

Question 79

Annuity

Answer 79

NEW

Civil code annuity: the transferring of a thing to another party in recognition of or in exchange for a periodic stream of payments

here, a thing other than money to someone in exchange for a stream of payments.

there has to be some uncertainty in how much money will ultimately be received, or how long the annuity will last.

Question 80

An annuity can be in favor of either a natural or juridical person.
a. Natural person: Can last for

Answer 80

a defined period of time, or the lifetime of the natural person

Question 81

An annuity can be in favor of either a natural or juridical person.
Juridical person: Needs to be

Answer 81

a fixed period of time since juridical people can’t die. we don’t like indefinite things.

Question 82

Is an annuity heritable?

Answer 82

Yes. These rights and obligations are heritable in both ways.

Question 83

Annuity charge

Answer 83

allows the party who transferred the thing (usually the land) to maintain a real right over the land that the other person now owns.

This means that if the annuity payments stop, you can foreclose on the land and take it back.

Question 84

Loan for Use

Answer 84

Gratuitous contract by which lender delivers a non‑consumable thing to borrower to be used and then returned to lender.

Question 85

Loan for use, borrower’s obligations

Answer 85

2. Borrower must keep, preserve, and use the thing lent as a prudent administrator, and may use it only according to its nature or as provided in contract.
3. Borrower is not liable for ordinary wear and tear of the thing lent.
4. Borrower is liable for damage, even if caused by a fortuitous event, when he uses the thing for a longer time or in a manner other than agreed upon

Question 86

Loan for Consumption

Answer 86

Contract by which lender delivers consumable things to borrower, who binds himself to return to lender an equal amount of things of the same kind and quality.

2. Borrower becomes the owner of the thing lent and bears the risk of loss.

Question 87

A deposit

Answer 87

Contract by which depositor delivers a movable thing for safekeeping to depositary, who must return it to depositor upon demand

Question 88

Deposit may be onerous or gratuitous. It is gratuitous in the absence of

Answer 88

contrary agreement, custom, or usage.

Question 89

Onerous deposit

Answer 89

Depository must fulfill obligations with diligence and prudence.

standard of care: prudent administrator PLUS, must care for the thing with the same prudence and diligence as your would your own property.

Question 90

Gratuitous deposit

Answer 90

Standard of care for the thing is that of prudent administration.

Question 91

Depositary may not use the thing deposited without

Answer 91

the express or implied permission of depositor

Question 92

Depositor’s obligation to deposotary

Answer 92

Depositor must reimburse depositary for reasonable expenses incurred for safekeeping of the thing deposited, to indemnify him for losses the thing may have caused him, and to pay him the agreed remuneration.

Question 93

Deposit with Innkeepers

Answer 93

Innkeeper must accept for deposit personal belongings of guests unless unable to because of their excessive value, size, weight, or nature.

Question 94

Innkeeper is not responsible for a guest’s things that are stolen or damaged, unless

Answer 94

the damages is due to their fault

Question 95

If innkeeper provides a safe deposit facility, innkeeper’s liability to guests for stolen or damaged personal belongings not delivered to innkeeper is limited to

Answer 95

$500

Question 96

a. Innkeeper is not considered a compensated depositary if

Answer 96

it places a safe at the disposal of a guest in the guest’s room.

Question 97

Conventional Sequestration

Answer 97

1. Occurs when parties agree to deliver a movable or immovable thing to a depositary pending the resolution of a dispute.
2. Governed by rules applicable to deposit.

Question 98

Judicial Sequestration

Answer 98

1. Occurs pursuant to court order.

2. Governed by rules applicable to deposit

Question 99

Representation

Answer 99

a. A person may represent another person in legal relations as provided by law or by juridical act.
b. Authority of representative may be conferred by law, by contract (e.g., mandate or partnership), or by unilateral juridical act of procuration.

Question 100

Mandate

Answer 100

a. Contract by which principal confers authority on mandatary to transact one or more affairs for principal.
b. May be onerous or gratuitous.
c. May serve exclusive or common interest of principal, mandatary, or third person.
d. Contract is not required to be in any particular form, unless prescribed by law

Question 101

Mandate, equal dignity rule

Answer 101

If the action being undertaken requires a certain level of formality, the act of mandate requires an equal or greater level of contract/conferrerment.

Question 102

Principle may confer general authority on mandatary to do

Answer 102

whatever appropriate under circumstances.

Question 103

Mandatary may perform all acts necessary for performance of mandate, except the following, which require the principal’s express authority

Answer 103

(1) alienate, acquire, encumber, or lease a thing;
(2) make an inter vivos donation;
(3) accept or renounce a succession;
(4) contract a loan, or acknowledge or make remission of a debt;
(5) become a surety;
(6) draw or endorse promissory notes and negotiable instruments;
(7) enter into a compromise or refer a matter to arbitration; or
(8) make health care decisions.

Question 104

Duties of Mandatary

Answer 104

a. May not self-deal. However, may represent two parties in the same transaction, as long as disclosed to the parties.
b. Act with prudence and diligence.
c. Provide information, render an account of his performance, and notify principal of fulfillment of mandate.
d. Deliver to principal what he has received as a result of mandate, including those received unduly.
e. Absent agreement to contrary, mandatary must fulfill mandate himself.
(1) He may appoint a substitute when unforeseen circumstances prevent him from performing his duties and he is unable to communicate with principal.
(2) Mandatary authorized to appoint a substitute is answerable to principal for acts of substitute only if he fails to exercise diligence in selecting the substitute or in giving instructions.
f. Mandatary who exceeds his authority is answerable to principal for resulting loss principal sustains.
(1) Principal is not answerable to mandatary for loss mandatary sustains because of acts that exceed his authority, unless principal ratifies those acts.

Question 105

Duties of Principal

Answer 105

a. Answerable for mandatary’s acts that are within the limits of authority.
b. Reimburse mandatary for expenses and charges incurred and pay remuneration to which he is entitled.
c. Compensate mandatary for loss mandatary sustains as a result of mandate, but not for loss caused by fault of mandatary.

Question 106

Mandatary who contracts in principal’s name is not bound personally for performance of contract, though

Answer 106

the principal is bound

Question 107

Mandatary who contracts in his own name without disclosing his status as a mandatary is bound

Answer 107

the mandatary is personally bound

Question 108

Mandatary who in contracting discloses his status as a mandatary, though not his principal, is bound

Answer 108

the mandatary is personally bound until the principle is disclosed

Question 109

Mandatary who exceeds his authority is bound personally to third person with whom he contracts, unless:

Answer 109

the third party knows he is exceeding his authority and contracts with him nonetheless, or the principle thereafter ratifies the agreement.

Question 110

A putative principal (one who causes a third party to believe that another is his mandatary) is bound

Answer 110

to third party who contracts in good faith with putative mandatary.

Question 111

Third party who contracts with mandatary is bound to principal when

Answer 111

mandatary contracts in principal’s name, or when mandatary discloses mandate but not identity of principal.

Question 112

Third party is bound to principal even when mandate is undisclosed, unless

Answer 112

the obligation that is created is strictly personal.

Question 113

Mandate and authority of mandatory terminate upon

Answer 113

when either the mandatary or principle dies
if the mandatary is interdicted
when the principle has been interdicted AND the curator has been qualified (because the curator is now essentially the mandatary)
upon notice of either party

Question 114

Mandatary’s authority continues in the following circumstances

Answer 114

a. If mandate has been recorded, any revocation or modification must also be recorded as notice to third parties who rely on such records.
b. If principal does not notify third parties authorized to contract with mandatary that mandate or mandatary’s authority has been revoked, principal is bound to such third parties for any obligations mandatary has undertaken.
c. If mandatary does not know about mandate’s termination, principal is bound to any contract mandatary enters into in good faith with third parties.