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Day 1 Flashcards

2
Q

CHANGE OF CUSTODY IN A CONSIDERED DECREE

A
  1. the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, OR
  2. harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child
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3
Q

Greenlaw rule

A

If the fraction that would be used to calculate FH’s legitime is greater than that which would be used in intestacy, the smaller fraction applies

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4
Q

Ways that a legacy may lapse

A
  1. Predeceased
  2. Incapacity
  3. Unworthy
  4. Revoked
  5. Invalid
  6. Null - fraud/duress
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5
Q

PETITORY ACTIONS

A

Pl. seeks judgment declaring that he is owner of the property:

  1. Pl. is NOT in possession, AND
  2. D. is in possession + claims ownership

Pl. must prove title is good against the world

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6
Q

SUBSTANTIAL ALTERATIONS TO A CO-OWNED THING

A

Requires consent of all co-owners, but may be acceptable if in accordance with the destination of the thing.

If so, co-owners may keep the improvement and pay the costs or increased value

If not, co owners may demand demolition and removal at the expense of the co-owner who is in violation

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7
Q

Oligraphic will

A

Written, signed and dated entirely in the hand of the testator.

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8
Q

AP OF MOVABLES

A

3 years - GF and just title
10 years - BF

  • In either case must have animus and corpus to establish possession.
  • animus is presumed in most circumstances
  • if co-owner, must possess adversely:
    overt and unambiguous act giving notice to others of intent to possess adversely of others.
    After established possession, actual corpus is not required as long as possession is not disturbed
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9
Q

Grounds for disinherison

A
  1. Striking parent
  2. Cruel treatment
  3. Attempted murder
  4. Accuse parent unjustly for crime
  5. Use of force or violence to prevent will from being probated
  6. Minor marries without consent
  7. Conviction of a felony - hard labor or death
  8. Failure to communicate with parent without just cause for two years
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10
Q

CONSTRUCTIONS BY BF POSSESSOR

A

Owner of the immovable may

  1. Demand demolition and removal, or
  2. Keep and pay current cost of labor and supplies or enhanced value
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11
Q

ART. 466TEST FOR COMPONENT PARTS

A
  1. Complete building of the same general type w/out regard to specific use
  2. Things that are attached to a construction other than a building and that serve its principal use are its component parts.
  3. Other things if they are attached to such a degree that they cannot be removed without substantial damage
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12
Q

EXCLUDING PARTITION OF A CO-OWNED THING

A

No one may be compelled to own an immovable in indivision indefinitely. By agreement, no longer than 15 years. If longer than 15 years, it will be decreased to 15.

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13
Q

CONVENTIONAL (predial) SERVITUDES BY TITLE

A
  • must be in writing- filed in proper place- person granting must have had power to do so.
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14
Q

ADULTERY BASED DIVORCE

A
  • No physical separation required- adultery must be proved by specific corroborative proof
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15
Q

What is a building

A

Not defined in code. Look to the following:

  1. Inhabited by people
  2. Cost
  3. Permanence
  4. Prevailing notions of what constitutes a building.
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16
Q

Most favored relative rule

A

Child or sibling of deceased legatee - accretion takes place in their favor

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17
Q

103.1 no fault divorce - separation before filing

A

Already living separate and apart for requisite period before petition filed.

  1. File petition w/ affidavit stating that parties lived apart for requisite time period
  2. Wait 15 days for answer (may be waived)
  3. Preliminary default
  4. Confirm divorce two days later
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18
Q

What are building restrictions?

A

Charges imposed by the owner(s) of immovable property pursuant to a general plan that governs building standards, specified uses, and improvements that are 1.feasible, and
2. capable of being preserved.

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19
Q

Revocation of a donation inter vivos

A

Must be brought w/in 1 year of knowledge of act of ingratitude.

  1. Donee attempts to take life of donor, or
  2. cruel treatment, or
  3. grievous injury
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20
Q

USUFRUCT OVER CONSUMABLES

A

Usufructuary may alienate, encumber or consume but owes an accounting of thing to NO at end of usufruct.

  1. Must pay value of thing at start of usufruct, or
  2. Replace with same quality or kind of thing
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21
Q

NAVIGABLE RIVERS AND STREAMS

A

State owns to low water mark

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22
Q

PARTITION IN KIND

A

Thing held in indivision is susceptible of division in lots of nearly equal value as long as aggregate value of lots are not significantly lower than property as a whole

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23
Q

Separate legacies

A

“Share and share alike”, “share equally”

  • Each legatee gets their share only.
  • Portion goes intestate if lapses
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24
Q

Presumption of paternity (generally)

A
  1. Child born of marriage, or
  2. w/in 300 days of end of marriage
  • Rebutted by disavowal or contestation action by clear and convincing evidence AND corroborative evidence
  • Rx - if w/in 300 days of end of marriage -
    1 year after actual or constructive notice of birth or if sep and apart - notification in writing
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25
Q

Child’s paternity action

A

Living parent - POE

Dead parent - C&C Must file w/in 1 year of parents death

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26
Q

MODES OF PARTITION OF A CO-OWNED THING

A
  1. Voluntary/Extrajudicial
  2. Judicial
    a. In kind - divided into nearly equal parts, or
    b. partition by licitation
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27
Q

FRUITS

A

Things derived from another thing without diminution of its substance. May be natural or civil

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28
Q

BIOTCH FACTORS

A
  1. Emotional ties
  2. Ability to nurture
  3. Ability to provide
  4. Prior relationship
  5. Stability
  6. Moral fitness
  7. Health
  8. History
  9. Reasonable preferences of child
  10. Cooperation between the parties
  11. Location/distance between parties
  12. Past caregiver
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29
Q

RIGHTS/DUTIES OF CO-OWNERS

A
  • Share fruits and products- producer is entitled to deduct costs- presumed equal
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30
Q

RIGHT OF PASSAGE(Enclosed estate)LEGAL, PREDIAL SERVITUDE

A

Owner may claim a right of passage to nearest public road - must indemnify neighbor

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31
Q

REAL RIGHT

A
  • Proprietary interest - Dismemberment of ownership- Attach to movables and Immovables
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32
Q

POSSESSORY ACTION

A

Pl. is in possession, but is being disturbed
Pl. has burden of proving:
1. Quiet uninterrupted possession for more than 1 year
2. Disturbance in law and fact, and
3. Action instituted w/in one year of disturbance

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33
Q

Steps to become curator

A

Generally, must be “interested party” unless court assigns.

  1. Take oath
  2. Furnish security or legal mortgage sufficient to cover minor’s property
  3. Clerk issue letters of tutorship
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34
Q

Requirements of a donation

A
  1. Capacity to give and receive
  2. Donation valid in form

Capacity - able to comprehend, generally, the nature and consequences of the disposition

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35
Q

RIGHT OF USE

A

A personal servitude that is a charge on a thing for the benefit of a person - natural or juridical - that could be otherwise established as a predial servitude

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36
Q

Relatively null marriage

A
  • Lacking consent (can be confirmed)- relatively null marriage that produces civil effects until judicially declared null
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37
Q

PREDIAL SERVITUDE

A

Charge on a servient estate for the benefit of a dominant estate.

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38
Q

AFFIRMATIVE CONVENTIONAL PREDIAL SERVITUDE

A

Gives the owner of the dominant estate the right to do something

Rx - begins when created and is interrupted by use.

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39
Q

IMMOVABLES BY DECLARATION

A
  1. Unity of ownership
  2. Not a residence
  3. Component part must be placed on immovable for its service and improvement
  4. Filed for registry in conveyance records in parish where immovable is located
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40
Q

Removal of curator

A

For good cause shown by any interested party:

  1. clear showing that the curator is not performing his/her duties, and
  2. a change in curator is in the best interests of interdict.

Look to the following to prove element 1: (MRGOIA)

  1. MISAPPLICATION or MISMANAGEMENT of property.
  2. failure to RENDER an account
  3. GROSS negligence
  4. failure to OBEY court order
  5. INCAPABLE of performing duties
  6. ABUSE, failure to educate, etc.
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41
Q

TYPES OF TUTORSHIP

A
  1. Natural (parents)
  2. By will (testament)
  3. Legal (family)
  4. Dative (by court)
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42
Q

BOTTOMS OF NAVIGABLE WATER BODIES

A

State owns to high water mark

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43
Q

DUTIES OF USUFRUCTUARY

A
  1. Make inventory (where applicable)
  2. Give security (where applicable)
  3. Use property as prudent administrator
  4. Make ordinary repairs
  5. Pay periodic and annual charges
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44
Q

A donation to the donee with a charge to preserve and render to another at their death

A

Prohibited substitution - absolute nullity (considered as not written - null as to both legatees)

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45
Q

Donation of all or substantially all of ones property

A

Donation omnium bonorum - absolute nullity

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46
Q

Renunciation

A

Only able to renounce after decedent has died

MUST be 1. express, and 2. in writing

No need for further formality (AA or AUPS, etc.)

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47
Q

JUST TITLE

A

A juridical act sufficient to transfer ownership or another real right.

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48
Q

Undue influence

A

Donee or other person so impaired the volition of the donor so as to substitute their volition for that of the donor.

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49
Q

Qualificications of tutor

A
  1. Majority
  2. Not infirm mentally or physically
  3. Not of bad moral character
  4. Not indebted to minor
  5. Not a felon
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50
Q

ART. 102 NO FAULT SEPARATION AFTER SERVICE

A
  1. File petition (alleging jurisdiction and venue)
  2. Serve petition on spouse
  3. Wait 180/365 days (no children/children)
  4. file rule to show cause with verified affidavits showing separation, and service
  5. File affidavit of mover, executed after filing rule, that the parties have lived apart since petition and mover wants divorce
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51
Q

Co-owner right to reimbursement of expenses

A

Entitled to reimbursement for

  1. necessary expenses
  2. Ordinary maintenance & repairs

May deduct exclusive enjoyment by other co-owner

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52
Q

DEIMMOBILIZATION

A

Component part that may be detached and removed becomes a movable.Immovable is converted into a moveable if deimmobilized

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53
Q

INCORPOREAL IMMOVABLES

A

Rights and Actions that apply to immovable things

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54
Q

USE AND MANAGEMENT OF A CO-OWNED THING

A

Any co-owner may use and manage, but must be:

  1. According to agreement, or
  2. Where no agreement,
    a. According to destination , or
    b. by court order
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55
Q

Absolutely null marriage

A
  • void from inception- violation of any impediment to marriage - no civil effects
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56
Q

Lack of capacity

A

Unable to comprehend generally the nature and consequences of the disposition that he is making.

  • generally includes, unemancipated minors, interdicts (full and sometimes limited), persons deprived of reason
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57
Q

PERSONAL SERVITUDE

A

Charge of a thing for the benefit of a person, his heirs or assigns

Ex. Right of use, usufruct, habitation

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58
Q

Extinction of conventional servitude

A
  1. Rx of non-use
  2. Confusion
  3. Destruction of either estate
  4. Abandonment by servient estate
  5. Renunciation
  6. Expired term
  7. Dissolution of right
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59
Q

FELONY CONVICTION DIVORCE

A

Physical separate not required if spouse convicted of a felony and sentenced to death or hard labor

-NOTE-
DOES NOT INCLUDE PARISH JAILS/PRISONS

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60
Q

Subsequent marriage and acknowledgment

A

Acknowledge child by authentic act or signs birth certificateChild cannot be filiated to another man

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61
Q

USUFRUCT OVER NON-CONSUMABLE

A
  1. Use the thing as a prudent administrator
  2. Get fruits that accrue during usufruct
  3. deliver to NO at end of usufruct
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62
Q

PERSONAL RIGHT (ACTION)

A

The legal power that a person (obligee) has to demand from another person (obligor)

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63
Q

Things sometimes movable, sometimes immovable

A 
GENERALLY:
unity of ownership = immovable; 
no unity = movable
1. OCPA
2. Unharvested crops & ungathered fruits
3. Component parts
4. Immovable by declaration
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64
Q

PARTITION BY LICITATION

A

Judicial sale of property - proceeds are distributed to the co-owners

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65
Q

CONSENT DECREE MODIFICATION

A

Need only prove

  1. Material change in circumstances
  2. Proposed modification is in the BIOTCH
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66
Q

APPARENT CONVENTIONAL PREDIAL SERVITUDE

A

Perceivable by exterior works

Can be acquired by AP

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67
Q

PRODUCTS

A

result in diminution of substance of the thing they are derived from

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68
Q

POSSESSION

A
  1. Animus - intent to possess (presumed) AND
  2. Corpus - physical possession

If thing is co-owned in indivision - must show adverse possession by overt and unambiguous acts

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69
Q

What is community property

A

The legal regime of the community of acquets and gains

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70
Q

MOVABLES BY ANTICIPATION

A

Separate ownership or encumbrance of I harvested crops or ungathered fruits

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71
Q

Priority in disbursing bequests

A
  1. Specific things - particular legacies
  2. Groups and collections
  3. Cash - unless remunerative then pay first above other cash disbursements
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72
Q

ALWAYS IMMOVABLE

A
  1. Tracts of land and their component parts
  2. Buildings
  3. Standing timber
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73
Q

Five ways to revoke testamentary provision

A
  1. Declaration in testament
  2. Separate Writing by testator (codicil)
  3. Subsequent incompatible testamentary disposition
  4. Subsequent incompatible inter vivos disposition & not reacquiring it
  5. Signed writing on testament itself
  6. Divorce after execution
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74
Q

JURIDICAL PERSON

A

An entity to which the law attributes personality.

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75
Q

DECLARATION OF PARAPHERNALITY

A

Reserve fruits of separate property as separate

  • must serve copy on spouse before filing (probably still effective if spouse receives copy w/in a reasonable time after filing)
  • record parish of situs if immovable
  • record parish of domicile if movable
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76
Q

MARRIAGE

A
  1. Absence of legal impediments such as existing marriage, same sex marriage, or incest (direct line & collaterals to 4th degree)
  2. Ceremony presided over by a qualified celebrant w/ two witnesses over 18 years of age in which both parties are physically present.
  3. Mutually expressed consent
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77
Q

CO-OWNER WHO MAKES IMPROVEMENTS NOT CONSISTENT W/ USE OF PROPERTY + W/OUT CONSENT

A

Co-owners may

  1. Demand their removal at expense of owner
  2. Keep and pay, current value of materials or enhanced value of immovable
78
Q

NON-APPARENT CONVENTIONAL PREDIAL SERVITUDE

A

No exterior signs or designation

79
Q

TYPES OF PARTITION

A
  1. Voluntary/extrajudicial
  2. In kind
  3. Licitation
80
Q

PUTATIVE MARRIAGE

A
  1. Absolutely null marriage
  2. At least one spouse in good faith
  3. Has civil effect until declaration of nullity or remarriage of innocent spouse
81
Q

Duty to pay periodic charges (ex. Taxes)

A

Usufruct is responsible for all annual charges and periodic charges imposed during the existence of e usufruct

82
Q

FINAL SPOUSAL SUPPORT

A

Based on needs of claimant spouse and ability of other spouse to pay.

Factors: (TAFCRIED)
TAXES, AGE AND HEALTH, FINANCIAL OBLIGATIONS, CUSTODY, REHABILITATION, INCOME, EARNING CAPACITY AND DURATION OF MARRIAGE

83
Q

CONEVENTIONAL PREDIAL SERVITUDES BY AP

A

Only applies to apparent SERVITUDES

Reg. AP rules apply

84
Q

4 ways to revoke an entire testament

A
  1. Authentic Act
  2. A signed writing identifying testament that clearly expresses intent to revoke
  3. Physical destruction of will
  4. Revocation clause in a subsequent will
85
Q

NEGATIVE CONVENTIONAL PREDIAL SERVITUDE

A

RESTRICTS OWNER OF SERVIENT ESTATE FROM DOING SOMETHING

RX BEGINS TO RUN WHEN VIOLATED

86
Q

Matrimonial agreements

A
  1. Before marriage may be freely contracted (as long as not against the law or public policy)
  2. After marriage requires review by the court
87
Q

CONSTRUCTION BY GF POSSESSORS

A

Owner of immovable must pay (1 of 3)1. Cost of materials and workmanship2. Current value3. Enhanced value

88
Q

Notarial Will

A
  1. In writing
  2. dated
  3. signed at end of testament and at the end of each page.
  4. Testator must declare that the will is his and has followed the requisite formalities in the presence of a notary and two witnesses who then sign an Attestation clause.
89
Q

Disinherison

A

Only of a forced heir

  1. In form required for will
  2. Must expressly state reason for disinheriting 3. just cause
90
Q

DUTY TO MAKE REPAIRS (usufruct)

A
  1. Usufructuary - ordinary repairs - NO can compel him to make ordinary repairs or repairs due to usufructuary’s fault
  2. NO - extraordinary repairs (reconstruction of a whole or substantial part of property) - usufructuary can make and get reimburse
91
Q

LEGAL SERVITUDE

A

Limitations on owners established by law for benefit of general public

Ex. Keeping buildings in repair, not building outside land, fixing rain drip, right of passage

92
Q

USUFRUCT

A

Real right of limited duration on the property of another

Usus and fructus (use and enjoyment) but not abusus (resides with NO)

93
Q

A donation whereby the donee is given a thing with the charge to pass it on to another individual if they don’t accept.

A

Vulgar substitution

94
Q

Joint legacy

A

Does not assign shares.

If lapses for one legatee - share accretes to surviving joint legatees ratably

Exception:

  1. child or sibling of testator
  2. Descendant of child or sibling of testator
95
Q

AP OF Immovables

A

10 years - good faith, just title & thing susceptible of ownership

30 years - bad faith & thing susceptible of ownership

96
Q

A “sale”that disguises the parties true intent

A

Absolute Simulation - intent of parties is that contract shall produce no effects between them - absolute nullity

Relative simulation - intent of parties is that contract shall produce a different effect than stated are acceptable if they follow the formalities of the donation they contemplate.

97
Q

Occupancy

A

Taking of possession of a corporeal thing that doesn’t belong to anyone

98
Q

Unworthy successor (trigger, application, and effects)

A

Trigger: an heir either - 1. Convicted of killing or attempting to take the life of the testator/decedent, or

  1. Judicial determination that the heir participated in the killing or the attempt on testator’s/decedent’s life
    - MUST be brought by a party that would take in the succession in the unworthy successor’s place.
    - if proven by C&C evidence, the unworthy heir will be treated as if they predeceased the decedent/testator.
    - only defense to unworthy heir is reconciliation/forgiveness by the testator prior to death.
99
Q

Presumption of paternity - second husband

A
  1. Mother remarries w/in 300 days of divorcing first husband
  2. Child born within that period, and
  3. First husband disavows paternity

Rx - a year from first husband’s disavowal judgment

100
Q

Presumption of Paternity:

Man who marries mother

A
  1. Signing birth certificate, or
  2. Acknowledge by authentic act

As long as the two following criteria are met:

  1. Child not filiated to another man, and
  2. Mother concurs in acknowledgement

Rx - IMPORTANT -
180 days from:
1. Day of marriage, or
2. Day of acknowledgement

101
Q

Paternity Methods

A
  1. Sign birth certificate

2. Acknowledgement by authentic act - if child not filiated to another man

102
Q

Method of determining child support obligation

A

Child support is based on:
Needs of child & Ability of Parents to pay

Use “Income shares model”
1. Add income of both parents
2. Subtract any preexisting support
= adjusted gross income

  1. Court will assign a percentage of the adjusted gross income to each parent
    = basic child support obligation
  2. Add healthcare, childcare expenses, etc.
    = total child support obligation
  • court may deviate if in best interests of child
103
Q

4 steps to security interest analysis

A

CAPP

  1. Categorize the collateral
  2. Attachment
  3. Perfection
  4. Priority
104
Q

Attachment (3 steps)

A
  1. Value given2. Debtor has rights in collateral3. a: written security agreementb: signed (“authenticated”) by debtorc: containing adequate description of collateral
105
Q

Perfection (5 methods)

A
  1. Filing UCC-1 Finance statement
  2. Possession
  3. Automatic Perfection
  4. Control
  5. Perfection as a matter of law
106
Q

Intangible Rights - Collateral (6)

A
  1. Account
  2. Deposit account
  3. Instrument
  4. Chattel Paper
  5. Investment property
  6. General intangibles
  7. Tort claims
107
Q

Tangible movable collateral

A
  1. Inventory2. Equipment3. Consumer goods4. Rights in immovable property not governed by UCC-9 except fixtures and as extracted collateral
108
Q

Several obligations

A

Each obligor owes an individual and complete performance

109
Q

Joint obligations

A

Obligors together owe one performance and no obligor is bound for the whole

110
Q

3 year Liberative Rx

A
  1. Past due rent 2. Open accounts3. Money lent4. Compensation for rendered services
111
Q

5 year Liberative Rx

A

Promissory notes & negotiable instruments

112
Q

Interruption vs. suspension of Rx

A

Interrupted - commences anewSuspended - continues where left off

113
Q

Warranty against eviction

A

Warranty against complete or partial loss or reasonable fear of losing the thing sold because of 3rd party’s right that existed at time of sale.
Buyer has duty of reasonable inspection - does not cover apparent SERVITUDES

114
Q

Lease

A

Nominative K that is perfected when there is an agreement between 1. Thing 2. Rent

115
Q

How long is a mortgage valid

A

10 years if maturity date is under 9 years or if longer, six years after the date of maturation.

116
Q

Aleatory contract

A

Performance by a party depends on an uncertain event

117
Q

Warranty against redhibition

A

Defect that is1. Non apparent2. Not known by buyer at time of sale3. Existed at delivery4. Defect renders thing (a or b)a: useless or so inconvenient that buyer would have either not purchased it, or b: usefulness diminished such that buyer would have purchased for less.

118
Q

Length of time a UCC-1 finance statement is good for

A

5 years

119
Q

Vendors privilege

A

Privilege on any property sold to secure purchase price1. Movable still in buyer’s possession2. Immovables - must have recorded act of sale in mortgage records

120
Q

Conventional mortgage

A
  1. Written
  2. Signed by mortgagor
  3. State amount or maximum debt secured
  4. Precise description of immovable

WASP - written, amount, signed, precise

121
Q

Make mortgage effective against 3rd parties

A

Record in mortgage records of parish where immovable located.

122
Q

Suspensive condition

A

An uncertain event that will make an obligation enforceable if it occurs

123
Q

Resolutory condition

A

An uncertain event that if it occurs will bring an obligation to an end

124
Q

Purchase Money Security Interest (PMSI)

A

A security interest that secures repayment of whatever portion of a loan actually used to purchase the collateral.

Must be perfected by filing finance statement in UCC offices.- Super Priority in inventory if filed w/in 20 days of delivery and provide notice to other parties with security interest

125
Q

Lessor’s privilege

A

By operation of law. Lessor has privilege on all of lessees movable property located on the leased immovable to secure rental price and other obligations under the lease

126
Q

What MOVABLES can be used as collateral?

A

Tangibles, intangibles & proceeds

127
Q

Objective vs. subjective novation

A

Objective novation - substitution of a new performance in place of the original oneSubjective novation - substitution of a new obligor

128
Q

Duration of inscription of mortgage

A

10 years from date of mortgage if under 9 years maturation date.
6 years after maturation date for mortgage if matures over 9 years from date of mortgage.

129
Q

Detrimental reliance

A
  1. promisee relied on promissor to his detriment
  2. Promissor knew or should have known that promisee would so rely
  3. Promisee was reasonable in so relying.
130
Q

Requirement for a valid K

A
  1. Capacity
  2. Consent
  3. Lawful cause
  4. Lawful object
131
Q

Error

A
  1. Concerns the principle cause and but for the error, the obligation wouldn’t have been made2. Cause was known or should have been known to the other party
132
Q

Fraud

A
  1. Misrepresentation or suppression of the truth 2. Intent to obtain unjust advantage, or cause a loss or inconvenience to the other party.
133
Q

Absolutely null K

A

Violates rule of public order, Illegal or immoral- Cannot be confirmed- Doesn’t prescribe

134
Q

Relatively null K

A

Violates a rule intended for the protection of a party

Can be confirmed - Waiver of rule can ONLY be invoked by party the rule protects

135
Q

Absolute Simulation

A

Parties intended no effect

136
Q

Relative Simulation

A

Parties intend an effect different than recited

137
Q

Compromise

A

K whereby one or more parties make concessions to settle a dispute or uncertainty concerning an obligation1. In writing, or2. In open court

138
Q

Accord and Satisfaction

A

Claimant accepts payment tendered by other party with clearly expressed written condition that payment will extinguish the debt.

139
Q

3 types of suretyship

A
  1. Legal2. Commercial 3. Ordinary
140
Q

Valid sale

A

K whereby a person transfers ownership of a thing to another for moneyPerfected when there is an agreement as to1. Thing, and 2. Price (in money)

141
Q

Lump sale

A

Perfected upon agreement

142
Q

Sale on view or trial

A

Ownership transfers after inspection

143
Q

Right of first refusal

A

Unilateral k in which a party agrees that they will not sell a thing without first offering it to a certain person - 30 days to exercise if immovable, and if refused may offer to sell to another party up to six months later, at which time it must be offered again if not sold.

144
Q

Option K

A

Unilateral K where the grantor is bound to buy or sell if grantee accepts w/in time stipulated.1. Specify thing2. Specify price3. Term

145
Q

Lesion

A

Applies to corporeal Immovables

Seller can rescind based on lesion if buyer paid less than 1/2 FMV

146
Q

Authentic act

A

Signed in presence of Notary + 2 witnesses

147
Q

Legal subrogation

A

Effect - new obligee can only recover to the extent that he has performed

148
Q

Conventional subrogation

A

Effect - obligee can get the whole amount of the original debt, no matter what his performance .

149
Q

Oral transfer exception to writing requirement in transfer of immovable

A

Valid if there has been

  1. Delivery, and
  2. Transferor recognizes the transfer under oath
150
Q

Sale without warranty

A

Restitution of price if buyer didn’t know of danger of eviction

151
Q

Sale at buyer’s own peril and risk

A

Buyer gets nothing if evicted if

  1. buyer aware of danger
  2. Buyer declared he was buying at own risk
  3. Seller’s obligation expressly excluded and pointed out to buyer.
152
Q

GF Breach

A

Only liable for damages that were reasonably foreseeable at time K was made

153
Q

BF Breach

A

Liable for all damages that are a direct consequence of his failure to perform

154
Q

Warranty against eviction

A

Warranty against complete, partial or reasonable fear of loss that existed at the time of the saleExtends to undeclared non apparent conventional SERVITUDES

155
Q

Warranty sale

A

Eviction entitles buyer to

  1. Restitution of price
  2. Fruits and revenues
  3. Costs
  4. Damages
156
Q

Assignment

A

K to transfer rights and duties - assignee promises to fulfill assignor’s Contractural commitment. Lessor is 3rd party beneficiaryOriginal lessee and new lessee are bound in solido

157
Q

Process to Reinscribe mortgage

A

Mortgagee signs and files notice if reinscription that:

  1. States name of mortgagor and mortgagee
  2. States recordation number of original mortgage
  3. Declares mortgage reinscribed
158
Q

Redhibition claim - seller in GF

A

Seller entitled to an opportunity to cure/repair Rx - 4 years from delivery or one year from delivery if residential immovable Must restore purchase price and reasonable expenses or reduction in price (quanti minoris)

159
Q

Redhibition claim - seller in BF

A

Must refund purchase price, damages, expenses and atty fees
No opportunity to repair
Rx - 1 year from discovery

160
Q

<p>Private works act</p>

A

PV on the imm, to secure labor, materials and costs to construct or improve an immovable

PV outranks all private interests if filed in mortgage records w/in 1-2 months after construction is complete in mortgage records

161
Q

Waiver of warranty

A

Waiver of warranty is effective when1. Clear and unambiguous terms2. Brought to the attention of the buyer EXCEPTION: if seller intentionally misrepresents thing to have qualities that he knows it doesn’t possess, buyer’s rights are governed by redhibition. Otherwise look to K.

162
Q

Duties of lessor

A
  1. Delivery
  2. Maintain the thing in a condition suitable for its purpose
  3. Warrant Peaceful possession
  4. Warrant against vices and defects
163
Q

Duties of lessee

A
  1. Pay rent
  2. Use as prudent administrator
  3. Return at end of lease
164
Q

Reinscription

A

File a notice of reinscription that states:

  1. the name of the mortgagor,
  2. the recordation number of the original filing,
  3. must be signed by the creditor, and
  4. declares the mortgage reinscribed

Must reinscribe before the expiration of the original inscription in order to save your priority date;
the reinscription is effective 10 years from the date of filing the notice.

165
Q

Separate Legacy

A

testator assigns shares to two or more legatees;

will be separate when use words “share and share alike” or “share equally”.

166
Q

Suretyship

A

an accessory conventional obligation whereby the surety binds himself to the creditor to fulfill one or more obligations of the principal debtor upon his failure to do so; may secure any principal obligation – past, present, or future;

surety’s rights against the principal obligor  can seek reimbursement directly or can go after principal obligor by subrogation

167
Q

universal legacy

A

testator gives all property to the legatee or the balance of his estate after particular legacies.

168
Q

general legacy

A

a legacy of a fraction of the estate, a fraction/portion after particular legacies, legacy of all/fraction of one of the following: separate or community property, movable or immovable property, corporeal or incorporeal property.

169
Q

particular legacy

A

anything that is not universal or general.

170
Q

ORDER of CP by Intestacy

A 
descendants
surviving spouse (+ 1/2 ownership in indivision in own right) 
parents & siblings 
ascendants
more remote collaterals
171
Q

ORDER of SP by Intestacy

A 
descendants 
parents & siblings 
surviving spouse
ascendants
more remote collaterals
172
Q

Forced Heir

A

children under the age of 24; or children of any age who are permanently incapable of taking care of his person or administering his estate because of a physical or mental infirmity;

grandchildren whose parents predeceased their grandparent and would have been under 24 when the grandparent died or whose parents predeceased and the grandchild is permanently incapable because of physical or mental infirmity.

173
Q

forced portion

A

part of the estate reserved for the forced heirs; 1 FH = ¼ of the estate; 2+ FH = ½ of the estate.

174
Q

legitime

A

the part of the forced portion that each FH is entitled to receive

175
Q

calculating the legitime

A

apply the legitime fraction to the active mass of the estate.

calculating the active mass =
value of all property at death – estate debts + donations inter vivos made 3 years before decedent’s death (fictitious adding back).

176
Q

collation

A

fictitious or real return of property received in advance of his share of the inheritance to the mass of the succession by an heir;

may be demanded by a 1st degree descendant who is a forced heir; children and grandchildren who were presumptive heirs at the time of the donation will be required to collate unless they renounce their succession rights.

177
Q

DIV - definition

A
  1. a contract whereby the donor divests himself
  2. at present and irrevocably
  3. of a thing given to the donee and
  4. the donee accepts it.
178
Q

Acceptance of DIV

A

the DIV is without effect until it is accepted by the donee; must be accepted during the lifetime of the donor and the lifetime of the donee; cannot be accepted by the donee’s successors.

179
Q

interim spousal support

A

may be awarded based on 1. the needs of the claimant spouse, and 2. the ability of the other spouse to pay
The purpose of this is to maintain the standard of living of the parties during the marriage
fault of the claimant spouse is irrelevant.

180
Q

Contributions to Earning Capacity of a Spouse

A
  1. claimant contributed to the other spouse’s training or education during the marriage that increased the other spouse’s earning power, and
  2. the claimant did not benefit from the increased earning power during the marriage

Liberative Rx of 3 years from signing divorce judgment

181
Q

UCCJEA initial determination

A

La. must be the child’s home state (lived w/ parent for 6 months before the proceeding commenced) or was the child’s home state w/in the preceding 6 months or the preceding 12 months and the child left because of an emergency or natural disaster.

if no home state or home state declined, La. has jurisdiction if the child and at least one parent have a significant connection with La. and there is substantial evidence available in La.

182
Q

UCCJEA continuing jurisdiction

A

court that makes an initial determination of custody has exclusive continuing jurisdiction until neither the child nor the parents continue to reside in this state or the child no longer has a significant connection with this state and substantial evidence is no longer available.

183
Q

UCCJEA jurisdiction to modify

A

La. has initial jurisdiction and no other court has continuing jurisdiction or the other state court determines that the parties do not reside in the other state.

184
Q

Child Support

A

income shares model:
each parents gross income - preexisting support payments to another child or spouse who is not a party to the proceedings = adjusted gross income;

use adjusted gross income to determine the basic child support obligation from the statutory tables + health insurance, net childcare costs, extraordinary medical expenses and other extraordinary expenses (like private school tuition).

Each party’s obligation is based on the percentage of the adjusted gross monthly income. The Court may modify the obligation in the best interests of the child.

185
Q

full interdiction

A

a person who, due to an infirmity, is unable to consistently make reasoned decisions regarding the care of his person AND his property

186
Q

limited interdiction

A

a person who, due to an infirmity, is unable to consistently make reasoned decisions regarding the care of his person OR managing his estate

187
Q

Curator

A

person appointed by the court to manage the interdict’s affairs; represents the interdict in juridical acts, care for the person or his affairs.

Obligated to do the following:

  1. exercise reasonable care, diligence and prudence, and
  2. to act in the best interest of the interdict
188
Q

Partial revocation for notarial testaments

A

deletions must be signed;

additions or revisions must be signed AND dated

189
Q

Partial revocation for olographic testaments

A

have to be in the hand of the testator

190
Q

Formula to calculate legitime

-NOTE-
This is a comprehensive answer that will likely on be tested in an action to reduce context.

A
  1. Add Estate assets
  2. Subtract estate debt
  3. Add value of donations w/in last 3 years to get ACTIVE MASS.
  4. Divide active mass by forced portion applicable to determine FORCED PORTION of estate (1 FH = 1/4, 2+ FHs = 1/2)
  5. Divide forced portion by number of FHs to determine LEGITIME

Uncategorized (3 decks)

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