Proof of Obligations Flashcards
1831 Party must prove obligation
A party who demands performance of an obligation must be able to prove the existence of an obligation. A party who asserts that an obligation is null, modified or extinguished, must be able to prove the facts or acts giving rise to the nullity, modification, or extinction.
1832 Written form required by law
When the law requires a contract be in written form, the contract may not be proven by testimony or presumption unless the written contract has been destroyed.
Where a writing is required for the validity of an act, that act may not be proved by any other means
1833 Authentic Act
An authentic act is a writing executed before
1. A notary public
2. two witnesses
It is to be signed by each party who executed the document, by each witness and by the notary public. The typed or hand-printed name of each person shall be in legible form.
1541 Form required for donations
a donation inter vivid shall be made by an authentic act under the penalty of absolute nullity, unless otherwise permitted by law
1834 Act that fails to be authentic
An act that fails to be authentic bc of the lack of competence or capacity of the notary public, or bc of defect of form, may still be valid as an act under private signature.
1835 Authentic act constitutes proof btwn parties and heirs
An authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title.
1836 Act under private signature duly acknowledged
An act under private signature is regard prima facie as the true and genuine act of party executing it when his signature has been acknowledged, and the act shall be admitted in evidence w/o further proof.
1837 Act under private signature
An act under private signature need not be written by the parties, but must be signed by them.
1838 Party must acknowledge or deny signature
A party against whom an act under private signature is asserted must acknowledge his signature or deny that it is his.
In case of denial, any means of proof may be used to establish that the signature belongs to to that party.
1839 Transfer of immovable property
A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless an oral transfer is valid between parties when the property has been actually delivered and the transferor recognized the transfer when interrogated on oath. An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located.
1840 Copy of authentic act
When an authentic act or an acknowledged act under private signature has been filed for registry with a public officer, a copy of the act thus filed, when certified by that officer, constitutes proof of the contents of the original.
1841 Copy of recorded writing
When an authentic act or an acknowledged act under private signature has been filed for registry with a public office, a copy of the act thus filed when certified by that officer, constitutes proof of the contents of the original.
1842 Confirmation
Confirmation is a declaration whereby a person cures the relative nullity of an obligation.
An express act of confirmation must contain or identify the substance of the obligation and evidence the intention to cure its relative nullity.
Tacit confirmation may result from voluntary performance of the obligation.
1843 Ratification
Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority.
Ratification will occur when the principal, knowing of that contract, does not repudiate it but accepts its benefits.
1844 Effects of confirmation and ratification
The effects of confirmation and ratification are retroactive to the date of the confirmed or ratified obligation. Neither confirmation nor ratification may impair the rights of third persons.
1845 Confirmation of donation
A donation inter vivid that is null for lack of proper form may be confirmed by the donor but the confirmation must be made in the form required for a donation.
1846 Contract not in excess of $500
When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of $500 may be proved by competent evidence
over $500 contract must be proved by at least one witness and corroborating circumstances
1847 Debt of third person and debt extinguished by prescription
Parol evidence is inadmissible to establish either a promise to pay the debt of a third person or a promise to pay a debt extinguished by prescription.
1848 Testimonial or other evidence not admitted to disprove a writing
Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.
1853 Judicial confession
A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confess is indivisible, and may be revoked only on the ground of error of fact.
