CODE III Flashcards
(191 cards)
1
Q
Requirements for a Valid Contract:
A
1) Capacity
2) Consent (established by offer and acceptance)
3) Lawful Cause (the reason why one bounds himself)
4) Lawful Object
2
Q
Detrimental reliance: obligor bound by promise, if:
A
1) promisee relied on promise to his detriment;
2) promisor had actual/constr knowledge that promisee relied, and
3) promisee was reas in relying (if gratuitous + w/o requisite formalities ≠ reas)
o Discretionary: but ltd to expenses incurred or dmgs suffered but ≠ K remedies
3
Q
All persons have capacity, except:
A
1) Unemancipated minors
2) Interdicts
3) Persons Deprived of Reason
K = relatively null (rescinded only by pty w/o capacity)
4
Q
OBJECT Can be anything
A
lawful, possible, and determined/determinable
5
Q
Minors = Contractual Capacity when:
A
1) Other pty reas relied on rep of maj
2) Ks made for minor’s biz or necessary for his Suppt/education
6
Q
VICES OF CONSENT
A
#1- Error (unilateral/bilateral) #2- Fraud: (Misrep/suppression) #3- Duress
7
Q
DURESS Def:
A
conduct of such a nature as to cause a reas fear of unjust & considerable injury to a pty’s person, prop, or rep.
8
Q
pty whose consent vitiated by duress can recover:
A
1) damages & 2) AFs
9
Q
Where only 1 pty in error, consent vitiated only if:
A
1) It concerns a cause w/o which obligation ≠ have been incurred (i.e. concerns principle cause); and
2) Cause was known/should have been known to other pty not in error (knowledge of cause NOT error)
10
Q
FRAUD Def:
A
misrep or suppression of truth (induced error) made w/ intent to obtain unjust advtg or cause a loss/inconvenience to other pty.
11
Q
- Fraud ≠ vitiate consent if
A
other pty could have ascertained truth w/o difficulty or special skills
o Exception: fiduciary relationship reas induced pty to rely on other
12
Q
- Fraud committed by 3rd pty vitiates consent if
A
pty ≠ in error knew/should have known of fraud.
13
Q
Absolute Nullity: if
A
K violates a rule of pub order (i.e. obj is illegal or immoral)
14
Q
3 Consequences of absolute nullity:
A
1) No confirmation/ratification
2) Any pty/ct can invoke
3) Actn to annul is imprescriptible
15
Q
Relative Nullity: if
A
violates a rule intended for protection of private pty (capacity/consent)
16
Q
Consequences of relative nullity:
A
1) Can be confirmed (minor can confirm upon majority)
2) Invoked only by pty rule intended to protect
17
Q
Rx for relative nullity :
A
actn to rescind K Rx 5 yrs from when either (a) grds for nullity ceased (duress/incapacity); or (b) nullity discovered (fraud/error)
18
Q
Effects of Nullity:
A
1) K deemed never to have existed;
2) doesn’t impair rights of 3rd ptys in GF who acquired through onerous K.
3) If IM, recordation principles apply.
19
Q
SIMULATION Def:
A
20
Q
Absolute Simulation:
A
ptys intend K has no effects
21
Q
Relative Simulation:
A
ptys intend K produce diff effects
22
Q
Measure of Damages for Breach of K =
A
loss sustained by obligee and profit of which he was deprived
23
Q
GF breach of K damages:
A
only reasonably foreseeable damages
24
Q
BF Breach of K damages:
A
all dmgs that are a direct consequence of failure
- BF = malicious, intentional failure to perform
25
Breach = “Failure to Perform”
| 3 ways:
1) Nonperformance (never rendered)
2) Defective performance (rendered by in manner inconsistent w/ K)
3) Delay in Performance (rendered in an untimely fashion)
26
Obligee’s Actions: can’t recover dmgs if
1) His BF caused non-performance; or
| 2) He concealed facts he knew/should have known would cause failure to perform when K made
27
- Duty to mitigate: obligee has duty to make all reasonable efforts to mitigate damages caused by breach only if:
Relatively small in comparison to potential loss; and
| Virtual certainty that it will avoid at least part of loss.
28
Elements of Sale:
1) Agreement
2) Object: all things corporeal or incorporeal susceptible of ownership; sale of another’s thing is null; succession rights ≠ sold b4 death
3) Price: must be in $ and be sum determinable by method parties have agreed
29
(Shipment K—Default)
Buyer owns things in transit that are deliverable to buyer
30
(destination K)
Seller owns things in transit that are deliverable to seller
31
CONTRACT TO SELL
Def:
Form
a bilateral K whereby ptys promise to enter into a sale at a later date;
must meet requirements of a sale
-agreement on object and price
32
RIGHT OF FIRST REFUSAL (ROFR)
| Def:
a unilateral K whereby one pty agrees he ≠ sell a thing w/o first offering to certain person (Note: in distinguishing, rules more relaxed w/ ROFR than option K)
- Can be enforced by specific performance
33
Time Limit to exercise right of first refusal:
o Mvbl = 10 days;
| o IM = 30 days
34
OPTION CONTRACT
| Def:
a unilateral K whereby grantor is bound to buy/sell if grantee of option accepts w/in stipulated time.
35
to be valid, option must specify
1) Thing
2) Price
3) Must have a term (10 yr limit)(if pt of another K, like a lease, term is coextensive w/ that term)
- Only a fixed term K can supply a term for an option (won’t work if indefinite term K such as a month-to-month lease)
If IM, must be in writing & recorded to effect 3rd ptys
36
TIME LIMITS FOR OPTION K & RIGHT OF FIRST REFUSALS FOR IM:
term ≠ longer than 10 yrs (only if pd stipulated, if longer will be reduced)
If in connection w/ K giving rise to continuous/periodic performance, duration of right may be pd of time req’d for performance of these obligations
37
OPTION K & RIGHT OF FIRST REFUSALS FOR Mvbl:
only binding on 3rd pty acquiring conflicting rights w/ actual knwlg
38
Seller’s Obligations
- Deliver the thing
- Warranting the thing a/g eviction and redhibitory defects
- Warranting thing reasonably fit for ordinary use
39
Buyer’s Obligations:
- Pay price
| - Take delivery
40
WARRANTY A/G EVICTION
| Eviction:
buyer’s loss of, or reas fear of loss of, all or part of thing sold bc 3rd persons right existed at time of sale
41
Eviction Occurs if:
1) 3rd pty has perfect title even if buyer ≠ lost physical control; or
2) Non-apparent servitudes not declared (buyer must make reas inspection bc ≠ apply to apparent)—pub records irrelevant!
42
Partial Eviction: gen rule is
buyer gets % reduction of price, unless relates to buyer’s principle cause→ buyer’s option to cancel sale.
43
WARRANTY A/G EVICTION
| Warranty Sale: when ptys ≠ address matter of warranty (so it is implied)→ seller owes
(1) restitution of price; (2) fruits; (3) costs; (4) dmgs if buyer in GF (had no knowledge).
44
WARRANTY A/G EVICTION
| Sale w/o Warranty: seller renounces warranty→ seller owes
restitution of price ONLY if buyer in GF (no knowledge)
45
Warranty against Redhibition Def1:
defect that renders thing useless/its use is so inconvenient buyer wouldn’t have bought→ buyer entitled to recession of sale
46
Warranty against Redhibition Def2:
Defect that diminishes usefulness such that buyer would have paid less for it→ buyer entitled to reduction of price (quanti minoris)
47
Defect Must be:
1) Not apparent (≠ reas discoverable by prudent buyer)
2) Not known to buyer at time of sale
3) Existed at time of delivery (presumption if appears w/in 3 days thereafter) (buyer has BOP)
4) Meets either definition 1 or 2
48
Redhibition BF Seller:
must (1) return purchase price, (2) expenses, (3) AFs; and (4) dmgs;
o Seller ≠ have opportunity to repair (buyer could give, but law does not)
o Rx: 1 year from discovery of defect
o Mfr of defective product always in BF
49
Redhibition GF Seller:
(1) Purchase price w/ interest; (2) reas expenses from sale & preservation (deduct value of use/prof yielded)
o Seller = opportunity to repair
o Rx: shorter of 1 yr from discovery/4 yrs from delivery
o Res/Com IM Prop: (GF seller) 1 yr from delivery
50
parties CAN waive warranty, but only valid if it is:
1) Clear and unambiguous; and
2) Brought to seller’s attn.
Waiver ≠ valid if seller declares thing has quality he knew it didn’t have.
51
WARRANTY OF FITNESS FOR ORD. USE
| General Rule:
seller warrants thing fit for ordinary use (remedies governed by K law)
- In addition to buyer’s remedies under redhibition
52
WARRANTY OF FITNESS FOR ORD. USE
| Warranty extends to buyers particular use only if:
1) Buyer has some particular use in mind;
2) Seller knows/should know buyer’s particular purpose; and
3) Seller knows/should know buyer relying on his skill, knowledge, & j’mt in selecting the thing.
Waiver of warranty a/d redhibition also waives this warranty
53
RIGHT OF REDEMPTION
| Def:
seller’s reservation of right to take back thing from buyer
54
Time Limit for right of redemption: if longer pd specified, ct will reduce
- IM→ no more than 10yrs
- Mvbl→ no more than 5 yrs
Period fixed for redemption is peremptive
55
EXCHANGE
| Def:ecific rules provided
a K where each pty transfers ownership of a thing other than money to the other.
- Sales law governs except where sp
56
Elements of Valid Lease:
1) Thing (must be capable of being used w/o being destroyed) (conveys possession only)
2) Rent (certain or determinable; need ≠ be in money)
3) Consent:
57
No term for ag lease means
year-to-year
58
No term for non-residential mvbls means
day-to-day
59
All others, no term means
year-to-year?
60
if term > 1 month
30 days before end of pd
61
if term is month-to-month
10 days before end of month
62
if term b/t 1 week & 1 month
5 days before end of pd
63
if < 1 week.
Any time before expiration of term
64
LESSOR’S OBLIGATIONS
- Deliver thing
- Maintain in condition suitable for purpose
o Make necessary repairs (≠ if caused by lessee’s fault)
- Maintain peaceful possession - extends not only to disturbances on the leased premises themselves, but also to disturbances caused by people who occupy adjacent property of the lessor.
o Liable for disturbance by ppl claiming right to leased thing & lessee’s of lessor’s neighboring prop
o Not Liable for loss ≠ lessor’s fault
65
LESSEE’S OBLIGATIONS
- Pay Rent - cant refuse to pay rent if a lessor breaches a duty
- Use as prudent administrator
- Return thing at end of lease in same condition delivered in (except for normal wear and tear)
66
if lessee fails to pay rent when due, lessor may
dissolve the lease and regain possession of the thing.
67
If lessee abandons premises, lessor has right to
retake possession of the premises & relet them as mandatary for lessee
upon abandonment, lessor has a duty to mitigate his damages. upon abandonment, Lessor will be able to recover the difference between the rent owed by the original lessee and the rent obtained from the sub-lessee.
68
Lease w/ a fixed term is reconducted if lease continues in possession & no steps are taken to terminate the lease for:
- 30 days for Ag lease
- 1 week for lease w/ fixed term > 1 week
- 1 day for leases w/ fixed terms ≤ 1 week
69
Reconducted leases continue under same conditions as prior lease, but the terms become:
- for Ag Lease
- for leases w/ fixed terms > 1 month
- for leases with fixed terms > 1 week
- for leases w/ fixed terms b/t 1 day & 1 month
- Year-to-Year
- Month-to-Month
- Week-to-week
- Day-to-day
70
if lessee doesn’t remove improvements, lessor may either
1) Appropriate ownership paying lessee the lesser of their costs or enhanced value of leased thing; or
2) Demand that lessee remove them w/in reas time
o if lessee fails to remove, lessor can remove at lessee’s expense or appropriate ownership w/ notice via certified mail to lessee w/o any payment.
71
Types of Mortgages:
- Legal Mortgage:
- Judicial Mortgage
- Conventional Mortgage
- In Rem Mortgage
72
Judicial Mortgage:
j’mt creditor on a money j’mt files a certified copy of the j’mt in the mortgage records of any parish where the debtor’s IM property is located
73
General Mtg:
Mortgages that encumber all the motgagor’s IM prop & prop rights subject to the mortgage (present & future) w/in parish where mtg filed.
• Judicial & Legal Mtgs = General
74
Conventional Mortgage:
a special mtg (extending only to specific identified prop) and is crated by K w/ debtor
75
In Rem Mortgage:
Mortgage securing obl not owed by the prop owner (obligor is someone lese or mortgagee has agreed not to pursue personal debt)
76
Form Requirements: to create a conventional mortgage
1) In writing (No authentic act needed, but ≠ use executory process if not)
2) Signed by mortgagor (no need for mortgagee to sign; no paraph needed)
3) State Amt/Max Amt of secured obligation (stated amt + int; max amt that can be outstanding under fluctuating line of credit)
4) Precise Description of IM Property (ref to subdivision or plat maps on public file = OK; NO street address; no gen transfer all future prop, but specific description = OK; can refer to lease by ref # in conveyance recs)
77
Suretyship K:
a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so.
78
Suretyship Form Requirements:
1) Express: must be unambiguous about (a) surety’s promise to pay and (b) exactly which principal obligation; must be clear from the four corners –parole evidence ≠ admissible.
2) In Writing: Act under private signature
79
Types of Suretyship:
1) Commercial: if either surety is paid, surety or debtor is business, or suretyship arises out of business transaction; construed like any other commercial K.
2) Ordinary: everything that’s ≠ commercial; strictly construed in favor of surety.
3) Legal
80
Mtg is effective a/g 3rd ptys from
exact moment at which the mortgage K (act of mtg) is filed for registry in the mtg records of the parish in which the IM property is located
81
mortgage lapses
10 years after date of mortgage (NOT filing date)
82
mortgage will be effective for additional 6 years from date of maturity if:
1) Mortgage describes a maturity date; and
2) Maturity date is 9+ years from date of mortgage.
- Note: If mtg amended, new stated maturity date can change effective pd
83
Mortgagee may reinscribe mortgage before lapse by:
1) Stating name of mortgagor
2) Stating recordation number of original mortgage or other info about original filed mort
3) Declaring mortgage is reinscribed
Effect = extends mortgage for 10 years from date of filing notice.
84
mortgagor can request cancellation if
1) Obligation has been extinguished
2) Full payment of secured debt
3) If reinscripton lapses, mortgagor can demand cancellation for failure to reinscribe
85
PRIVILEGES
| Def:
Real security rights that arise only by operation of law
86
Repairman’s Privilege:
securing payment for repair service—parts and labor
87
Repairman's Privilege exists only if
repairperson in possession of goods, or if not, for 120 days from last day on which materials and/or labor supplied (i.e. from last work, not loss of possession)
88
Lessor’s Privilege:
privilege over all of lessee’s mvbl property located anywhere on leased IM prop to secure the rental price and any other obligation(s) under the lease
89
Only mvbl prop on leased premises subject to lessor's privilege, but extended for 15 days after lessee removes any mvbl prop if
(a) lessor didn’t consent to removal & (b) mvbls can be IDed as lessee’s property
90
Vendor’s Privilege:
privilege on any Mvbl/IM property sold to secure the purchase price
- Mbl must be in buyer’s possession still (once transferred, privilege is lost)
- Act of sale must be recorded in mortgage records for IM
91
- Vendors prvlg v. Prior Rec’d Mtg: rec’d vendor’s privilege > mtg if:
Act of credit sale is rec’d w/in 7 days of its date recording in same parish where act of sale executed (15 days if recording in diff parish).
92
RANKING PRIVLEIGES
1) Repairperson beats lessor
2) Lessor beats vendor; but
3) Vendor beats repairperson (vicious circle)
4) Security interest (perfected or not) beats ALL privileges (regardless of timing); EXCEPT for repairperson’s privilege.
93
PRIVATE WORKS ACT (PWA)
| Privilege:
for people who supply labor or materials to improve, repair or construct IM, privilege on the IM to secure labor and material costs.
allows contractor or subcontractor to have a direct claim against owner
94
in order to escape personal liability owner must file
notice of contract and post bond before work begins
95
to preserve the PWA privilege, claimant (laborer or material supplier) must file a
(not sure if this is right)
“Statement of Claim” in the mtg records w/in
- 30 days if notice of K was filed and notice of termination is filed after substantial completion or
- 60 days from substantial completion (or notice of termination filed) when no notice of K or termination was filed.
96
a security interest is
an interest in personal property or fixtures that secures payment or performance of an obligation, by contract.
97
PMSI:
sec int that sec repayment of whatever portion of a loan actually used to purchase the collateral; a security interest in goods where either:
a) The seller sold the goods on credit, retaining a security interest in the goods for all/part of the purchase price (creditor and seller are same person); or
b) Creditor advances funds that are actually used by the debtor to acquire rights in the collateral, which creditor takes a security interest in (seller and creditor are different people).
98
three general categories of collateral; categorized by use of debtor
1) Corporeal collateral (Goods)
2) Semi-Tangible Collateral
3) Incorporeal Collateral
99
GOODS (TANGBL COLLATERAL)
Farm Products
Inventory
Consumer Goods
Equipment
100
Farm Products:
crops, livestock, unmfd products of livestock and supplies used or produced in farming operations are farm products if they are in possession/used by a farmer.
101
Inventory:
goods that are leased or held for sale or lease, goods that are furnished under a K of service, supplies that are used up quickly or consumed in business.
102
Consumer Goods:
Goods used or bought for family, personal, or household purposes.
103
Equipment:
anything owned by a bus that has corporeal value and is not for sale. Goods that are ≠ farm products, inventory, or consumer goods are equipment; i.e. everything else.
104
SEMI-TANGIBLE COLLATERAL
- Documents (of title)
- Instruments (negotiable/non-negotiable)
- Investment Property
- Chattel Paper
105
Documents (of title):
pieces of ppr that represent the right to receive goods (warehouse receipts, bills of lading; air bill)
106
Instruments (negotiable/non-negotiable):
pieces of ppr that represent $ (promissory notes, checks, CDs, collateral mtg notes)
107
Investment Property:
certificated stocks, bonds, mutual funds, and brokerage accounts.
108
Chattel Paper:
1 or more piece of paper that rep 2 rights: (1) right to collect a stream of payments (2) prop int in some prop; record(s) evidencing both (1) a monetary obligation & (2) a security interest in or lease of specific goods.
109
INTANGIBLE COLLATERAL
- Deposit Accounts
- Accounts
- General Intangibles
- Tort Claims
- Payment Intangibles
110
Deposit Accounts:
accts maintained w/ a bank (savings, passbooks accts)
can have SI in a deposit account as identifiable proceeds and is perfected as a matter of law bc an interest in cash proceeds such as a dep acct is automatic and continuously perfected as long as original collateral was perfected
111
Accounts:
right to collect on a promise to pay; any right to payment for goods, services, real property, use of a credit card, or lottery winnings that is not evidenced by an instrument or chattel paper ($ owed to a Dr. after she sees a patient)
112
General Intangibles:
any intangible not coming w/in the scope of the definitions of other types of intangibles; (intel prop, good will)
113
Tort Claims:
both consumer and commercial tort claims (unique to LA)
114
Payment Intangibles:
a general intangible, which the principle obligation of one of the parties is the payment of money.
115
attachment def
process by which a SI is created (made enforceable against debtor) by "attaching" to specific property or property interest called collateral
116
steps for attachment
1) Value must be given by the sec’d creditor to the debtor (actual money, an extended line of credit,
2) Rights—the debtor must have rights in the collateral
3) Authentication (via security agreement, signature by the debtor only required; if control or possession by the creditor, no written agmt needed)—debtor must grant rights in the collateral to the creditor (creditor cannot “take” rights w/o consent)
117
PERFECTION OF SEC INTEREST
How the sec int becomes effective a/g 3rd parties; must attach before it can be perfected.
118
Filing
(Financing Statement UCC-1, all collateral except deposit accts and money)
119
Pledge
(taking Possession of the collateral)
120
Control:
(investment property, nonconsumer deposit accts, electronic chattel paper)
121
Automatic Perfection
(PMSI in consmr gds)
122
Temporary Perfection:
(proceeds & instruments, negotiable docs, certificated securities)
123
Financing Statement (UCC-1): provides third parties with inquiry notice; must include:
1) Name & mailing address of the debtor
2) Name & mailing address of the secured party
3) Description of the collateral covered by the security agreement (can be supergeneric—but the security agreement controls the scope of the security interest)
4) If real property collateral (fixtures, standing timber, minerals), must include a description of the real property to which it’s related.
Debtor must authorize filing of FS: in an authenticated record (automatically does this if he signs the security agreement or FS); can be done after the FS is filed.
124
Place of Filing for FS:
-
-
with the clerk of court of any parish in the state of Louisiana.
file in state where business is registered
125
Cert of Title Reqs:
filing must be made w/ the Dept of Public Safety & Corrections, Office of Motor Vehicles
126
Titled Boats > $2500:
filed w/ Dept of Wildlife & Fisheries
127
A FS is effective for
5 years,
128
Continuation Statement must be filed in
w/in,
and will continue its effectiveness for
the same parish clerk of court's office as the original statement
6 mos before the lapse of the original FS. If filed before, will be premature and considered to have never been filed & FS will lapse.
5 years from the date of the original FS.
129
Fixture Filing: if collateral related to land or as-extracted minerals must include:
1) Describe IM prop w/ sufficient detail to Suppt a mtg
2) State that it covers fixtures and describe
3) ID owner of IM (if other than owner of fixture)
-Note: Must be filed BEFORE the comp pt becomes affixed, or not sec interest at all!
-
130
File Fixture filing in
any CoC office; not mort records
131
PMSI in Consumer Goods:
born perfect (i.e. as soon as it attaches, it is perfected)
132
PMSI in Non-Inventory (equipment) has super priority if:
PMSI is perfected within 20 days of debtor's receipt of the equipment
133
PMSI in Inventory gets super priority if:
PMSI is perfected and all secured creditors are notified before debtor recieves the inventory
134
Natural Obligation:
moral duty ≠ enforceable at law; no reclamation of freely performed natural obligation
135
Several Obligation for obligors:
those in which each obligor owes an individual and complete performance, though the obligation is created for the multiple obligors by just one juridical act
136
Joint obligations for obligors:
those in which the obligors together owe just one performance and no obligor is bound for the whole.
137
divisible joint obligation means
each obligor/ee does his portion;
138
indivisible joint obligations
treated like solidarity (obligors each owe the whole performance)
139
Solidary obligation:
those in which multiple obligors are bound for one performance, and the obligee may call upon any obligor for the whole performance.
140
Resolutory condition def:
obligation immediately enforceable, comes to an end if the uncertain event occurs
o Dissolved of right when can not longer be fulfilled.
141
Suspensive condition def:
obligation is not enforceable unless and until the uncertain event occurs.
o Dissolved only by consent of ptys or judicial decree.
142
Potestative Conditions def:
condition w/in a party’s power to fulfill
143
Suspensive potestative conditions
- an obligation with a suspensive condition that depends solely on the obligor's "whim" (unbridled discretion or arbitrariness) is null.
- an obligation with a suspensive condition that depends on the obligor's will (careful weighing interests/exercise of reasonable discretion) is valid
144
Resolutory postestative condition
obligation with resolutory conditions whose fulfillment is within a party's power are not null, but the conditions must be exercised in good faith (ex.termination at-will-K)
145
Conjunctive obligation:
obligor must render multiple items of performance, each of which may be separately rendered (ex: payment of rent)
o Each thing owed = object
o Rx runs separately from each installment or payment (if no acceleration clause)
146
Alternative:
when obligor is bound to render 1 of 2+ items of performance (full performance of either) which will extinguish obligation
o Performance = object
o Choice belongs to the obligor unless expressly/impliedly granted to obligee (if obligor has choice and fails to timely make it, reverts to obligee after demand and vice versa if obligee fails to timely make when reserved for him).
147
How does assumption arise
conventional assumption of an obl may arise by 1) agreement btw the obligor and a 3rd person (obligee can enforce ag 3rd if in writing; obligee must consent) or
2) agreement btw the obligee and a 3rd person (must be in writing)
- assumption does not release original obligor
148
subrogation def:
the substitution of one person to the rights of another
149
effects of subrogation
obligation is extinguished only for the original obligee
150
Conventional Subrogation by Obligee/creditor who received performance from a 3rd person :
automatically subrogates 3rd pty of rights as creditor a/g obligor (subject to rules of assignment); dont need obligor's consent
o Need not be in writing
151
Conventional Subrogation by Obligor:
obligor borrows money or fungible thing to pay debts to obligee; obligor subrogates 3rd pty creditor for original obligee.
o must be in writing & state that purpose of loan = pay debt owed to original obligee.
152
Effect of Solidary Obligees
performance to any 1 will extinguish obligation and release obligor even though benefit divided among 1+ obligees.
153
Effect of Solidary Obligors:
If 1 renders whole performance, subrogated to right of obligee; but ltd to claims for contribution from others only for their respective shares (virile portions/shares)
154
Liability of Solidary Obligors against each other
If 1 renders whole performance, he’s subrogated to rights of obligee (ltd to contribution claims only for their virile shares)
155
When solidarity renounced for less than all obligor’s,
- other obligors remain liable for whole debt minus his renounced share
- Must be express
- Obligor ≠ released, so his virile share can be affected by subsequent b/k of other obligor.
156
When solidarity is remitted for an obligor:
- Other obligors remain liable for whole debt, minus remitted share.
- Presumption of remission if obligee voluntarily surrenders document remitting to obligor.
- Remitted obligor = released and ≠ be forced to pay if another obligor goes b/k
157
Novation:
extinguishment of obligation by substitution of a new one (creates and destroys obligation)
158
Remission of Debt:
voluntarily relinquishment by obligee of right to demand performance
159
Compensation:
extinguishing 2 obligations simultaneously
By Operation of law when 1) 2 ppl owe each other $/fungible things, identical in kind, and 2) sums liquidated & presently due; or Judge may declare where reqs ≠met
160
Imputation of Payment:
when obligor owes several debts, he can impute payment to any expressly (or assumed most advantageous first)
161
Impossibility of Performance:
fortuitous event, not reasonably foreseeable that renders impossible; unless obligor assumes risk of loss or he was put in default b4 fortuitous event (exception where fortuitous event would’ve destroyed the obj. of performance anyways—delay damages only)
162
MANDATE
| Def:
K b/t principal & mandatary conferring on mandatary authority to represent (including in transactions) the principal.
163
Form for mandate:
no form reqs; but equal dignities rule applies (so any act to be performed by mandatary that must be in a certain form, must be authorized in an act in that form.
164
GR for mandate authority :
generally authority to do any acts “incidental or necessary” for performance of his mandate.
165
MANDATE
| express authority is required for:
- Acquiring, alienating, encumbering, or leasing prop
- Making iv donations
- Accepting/renouncing succession
- K a loan or acknowledging/remitting debt
- Becoming a surety
- Making/indorsing promissory note/NI
- Entering into compromise/agreeing to arbtrn
- Making healthcare decisions
166
Mandatary’s Duties:
Must act w/ prudence & diligence
- Must give info to P
- Must deliver to P all he has received on acct of mandate
167
If M exceeds authority, liable to P for
any loss he’s sustained.
168
Mandatary ≠ exceed authority when
fulfills duties in manner more advantageous to P than authorized.
169
Principal’s Duties:
| -
Liability for obligations of mandatary
- Duty to reimburse mandatary for his expenses & charges and for any remuneration he’s entitled to
- Must also reimburse for any loss sustained by Mandatary w/o fault.
170
P ≠ bound by unauthorized acts of mandatary unless
he’s ratified
171
Mandatary’s Liability
| -Disclosed P & M:
M ≠ bound to 3rd pty
172
Mandatary’s Liability
| -Disclosed M, but not P:
M personally bound until P disclosed
173
Mandatary’s Liability
| -Undisclosed P & M:
M personally bound
174
Mandatary’s Liability
| -M exceeds authority:
M personal bound unless P ratifies or 3rd pty knew exceeding authority
175
Mandate terminates & M’s authority ceases:
- Death of either P or M
- Interdiction of M or qualification of curator after interdiction of P
- Notice by either pty
176
even where terminated, M’s authority continues if:
- 3rd pty ≠ notified (P bound to K)
- After P’s death, M must complete anything begun prior to death if delay would injure P’s interest
- M unaware to termntn (re: GF Ks)
177
LOAN FOR USE
- Gratuitous K, where lender delivers nonconsumable to borrow who must return after finished
- Borrower must keep, preserve, & use a prudent admin
- Must return after use finished
178
DEPOSIT
| Def:
K in which depositor delivers mvbl to depositary for safekeeping
179
Std of Care for Deposit: depends on nature
- Onerous deposit =
- Gratuitous =
diligence & prudence
care used for own property
180
Depositary use of thing
depositary ≠ use deposited thing w/o express or implied permission of depositor.
181
If thing is consumable & depositary permitted to consume or dispose of, the K =
a loan for consumption ≠ deposit
182
Sequestration:
- Conventional:
- Judicial:
ptys agree to deliver contested thing (mvbl or IM) to depositary pending dispute resolution
Court ordered deposit
183
COMPROMISE
| Def:
K whereby 1+ ptys make concessions to settle dispute or uncertainty concerning obligation or other legal relationship
184
Form for Compromise:
must either be
- In writing; or
- Recited in open court & capable of being transcribed from the record
185
Accord & Satisfaction:
accepting payment tendered by other pty w/ clearly expressed written condition that acceptance extinguishes obligation
186
apparent authority arises when
the P makes a manifestation, intentionally or unintentionally, to a 3rd party suggesting that a person has mandate authority to act on the P's behalf or fails to indicate a revocation of actual authority.
if mandate instrument is filed in PR, it manifest mandate authority to 3rd parties.
apparent authority generally is not available in the context of land-related transactions in light of the PRD and the equal dignities rule
187
equal dignities rule
mandate requires only the same formalities as would the act to be accomplished through mandate authority
188
acquisitive prescription def
mode of acquiring ownership or another real right in a thing by virtue of possession for a period of time.
189
liberative prescription
the barring of an action because of the passage of time.
190
prescription of non-use
method by which a real right other than ownership is extinguished because it is not exercised for a period of time
191
a revocatory action seeking the annulment of a gratuitous contract made by an obligor, P must prove
that the K caused or increased the obligors insolvency.
