Liberative Prescription & Miscellaneous Code III Flashcards
(114 cards)
1
Q
What is the liberative prescription for an action for annulment of a testament?
A
5 years.
2
Q
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
A
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.
3
Q
Liberative Prescription is
A
a mode of barring of actions as a result of inaction for a period of time
4
Q
Prescription
A
limits the time in which a plaintiff may bring suit after a cause of action accrues
5
Q
Peremption
A
is a period of time fixed by law for the existence of a right
6
Q
The three types of prescription are
A
Acquisitive prescription
prescription of nonuse
liberative prescription
7
Q
Acquisitive prescription
A
is a mode of acquiring ownership or other real rights by possession for a period of time.
8
Q
prescription of nonuse
A
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.
9
Q
Prescription begins to run
A
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
10
Q
After prescription accrues in a party’s favor, he can
A
renounce the rights he derived by it.
11
Q
Renunciation is different from an acknowledgment of a right or obligation, which is
A
made prior to the accrual of prescription.
12
Q
Renunciation with respect to movable property may be
A
express or tacit
13
Q
Renunciation with respect to immovable property must be
A
express and in writing
14
Q
The renunciation of prescription has the same effect as an act of alienation. Accordingly, to renounce prescription, one must
A
have the capacity to alienate
15
Q
Suspension refers to
A
a period of time in which the prescriptive period ceases to run
16
Q
Per legislative action, prescription is suspended for:
A
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.
17
Q
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
A
effectively erased; a period of prescription begins anew upon the termination of the interruption.
18
Q
If the action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to
A
a defendant served by process within the prescriptive period
19
Q
Interruption is considered never to have occurred if the plaintiff
A
(1) abandons the suit;
(2) voluntarily dismisses the suit; or
(3) fails to prosecute the suit at the trial.
20
Q
What is acknowledgment as it relates to prescription
A
Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.
21
Q
Acknowledgement need not conform to any particular formality; it may be
A
written or oral, express or tacit
22
Q
Contra non valentem
A
based on the principle that prescription should not run against a party who, for good cause, is unable to act.
23
Q
Contra non valentem is more likely to be applied in situations where
A
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
24
Q
Prescriptive period, delictual (tort) action not otherwise provided for by statute (e.g., negligence).
A
one year
25
Prescriptive period,An action involving damage to immovable property, including an action for redhibition
one year
26
Prescriptive period, a delictual action which arises due to damages sustained as a result of a crime of violence.
two years
27
Prescriptive period, an action for the recovery of compensation for services rendered
three years
28
Prescriptive period, An action for arrearages (unpaid or overdue obligations) on rent and annuities
three years
29
Prescriptive period, an action on money lent
three years
30
Prescriptive period, An action on an open account.
three years
31
Prescriptive period, An action for redhibition against a seller who did not know of the existence of a defect in the thing sold
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.
32
Prescriptive period, An action for annulment of a testament.
five years
33
Prescriptive period, An action for the reduction of an excessive donation
five years
34
Prescriptive period, A personal action not otherwise provided for by statute
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.
35
Prescriptive period,an action for the recognition of a right of inheritance and recovery of the whole or a part of a succession
30 years
36
Peremption
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.
37
Whereas prescription must be pleaded by a party, peremption may be pleaded by
a party or supplied by the court.
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
null. However, courts have said you can shorten prescription within relevant parameters.
39
Tolling agreements are
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
40
Tolling agreements must be express and
in writing
41
to create a tolling agreement, is a contract needed?
No. The obligor can do so by virtue of a juridical act (i.e., unilaterally).
42
are successive tolling agreements allowed?
Yes, but each individually can be no more than 1 year
43
An interruption of prescription by any one solidary obligor interrupts prescription as to
other solidary obligors.
All obligees benefit from an extension granted by an obligor.
44
If a creditor wants to get an extension of prescription, he needs to
do so from each of his obligors
45
a contract is a simulation
when by mutual agreement it does not express the parties' true intentions
46
True intent of the parties expressed in a separate writing is a
counter letter
47
Type of simulations, Relative
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
48
Types of simulations, Absolute
Parties intend that contract shall produce no effects between them; thus, it can have no effects between them.
49
Both absolute and relative simulations may have effects as to third persons
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.
50
A contract is absolutely null when:
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).
51
A contract is relatively null when
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).
52
Nullity of a contract does not impair rights acquired through an onerous contract by
a third party in good faith
53
Performance rendered under a contract that is absolutely null because its object or its cause is illicit or immoral
may not be recovered by a party who knew or should have known of the nullifying defect
54
Revocatory Action, allows obligee to annul
an act of an obligor that was made after the obligee's right arose, and that causes or increases the insolvency of the obligor
55
Oblique Action, allows obligee to exercise a right that:
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).
56
All rights may be assigned, except for
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?”
57
Assignments are effective against
debtors and third persons from the time they have actual knowledge or are given notice of the assignment.
58
Assignor does not guarantee or warranty that
the obligor is solvent
59
If the assignor guarantee that the obligor is solvent then
he's only making that representation for at that moment in time, not that he will be solvent in the future
60
If the assignor falsely guarantees that the obligor is solvent, then
the assignment is effective against the assignor -- he will have to pay
61
Assignee can compel assignor to furnish
some evidence of the obligation
62
Giving in payment is a contract where:
the transfer of a thing in fulfillment of a debt
63
The thing must be delivered to perfect the giving in payment; otherwise
giving in payment is subject to the rules of contract sale.
64
A debtor may give a thing to a creditor in partial payment and, thereby
extinguish debt in proportion to the fair market value of the thing given or another agreed upon amount.
65
A contract of exchange is
the transfer of ownership of a thing for something other than money
66
A contract of exchange is not
the giving of a thing in exchange for some services that might be rendered. This is an enforceable innominant.
67
In a contract of exchange, ownership is transferred as soon as
there is agreement on the things.
68
A contract to exchange is an agreement to
trade things in the future
69
Giving in payment is not perfected until
the thing is delivered
70
A quasi-contract is
something that creates an obligation without the existence of a contract, but it's almost a contract, sort of.
71
Management of Affairs of Another
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.
72
Enrichment Without Cause
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.
73
Payment of a Thing Not Due
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.
74
compromise
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
75
Requirements and Effects of a Compromise
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
76
A compromise can be rescinded for
error, fraud, and other grounds for annulment of contracts.
77
for error, fraud, and other grounds for annulment of contracts, but not
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.
78
Accord and satisfaction of a compromise
if payment is accepted in exchange for a disputed and unliquidated claim, then it constitutes a compromise.
79
Annuity
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.
80
An annuity can be in favor of either a natural or juridical person.
a. Natural person: Can last for
a defined period of time, or the lifetime of the natural person
81
An annuity can be in favor of either a natural or juridical person.
Juridical person: Needs to be
a fixed period of time since juridical people can't die. we don't like indefinite things.
82
Is an annuity heritable?
Yes. These rights and obligations are heritable in both ways.
83
Annuity charge
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.
84
Loan for Use
Gratuitous contract by which lender delivers a non‑consumable thing to borrower to be used and then returned to lender.
85
Loan for use, borrower's obligations
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
86
Loan for Consumption
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.
87
A deposit
Contract by which depositor delivers a movable thing for safekeeping to depositary, who must return it to depositor upon demand
88
Deposit may be onerous or gratuitous. It is gratuitous in the absence of
contrary agreement, custom, or usage.
89
Onerous deposit
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.
90
Gratuitous deposit
Standard of care for the thing is that of prudent administration.
91
Depositary may not use the thing deposited without
the express or implied permission of depositor
92
Depositor's obligation to deposotary
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.
93
Deposit with Innkeepers
Innkeeper must accept for deposit personal belongings of guests unless unable to because of their excessive value, size, weight, or nature.
94
Innkeeper is not responsible for a guest’s things that are stolen or damaged, unless
the damages is due to their fault
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
$500
96
a. Innkeeper is not considered a compensated depositary if
it places a safe at the disposal of a guest in the guest’s room.
97
Conventional Sequestration
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.
98
Judicial Sequestration
1. Occurs pursuant to court order.
| 2. Governed by rules applicable to deposit
99
Representation
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.
100
Mandate
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
101
Mandate, equal dignity rule
If the action being undertaken requires a certain level of formality, the act of mandate requires an equal or greater level of contract/conferrerment.
102
Principle may confer general authority on mandatary to do
whatever appropriate under circumstances.
103
Mandatary may perform all acts necessary for performance of mandate, except the following, which require the principal’s express authority
(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.
104
Duties of Mandatary
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.
105
Duties of Principal
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.
106
Mandatary who contracts in principal’s name is not bound personally for performance of contract, though
the principal is bound
107
Mandatary who contracts in his own name without disclosing his status as a mandatary is bound
the mandatary is personally bound
108
Mandatary who in contracting discloses his status as a mandatary, though not his principal, is bound
the mandatary is personally bound until the principle is disclosed
109
Mandatary who exceeds his authority is bound personally to third person with whom he contracts, unless:
the third party knows he is exceeding his authority and contracts with him nonetheless, or the principle thereafter ratifies the agreement.
110
A putative principal (one who causes a third party to believe that another is his mandatary) is bound
to third party who contracts in good faith with putative mandatary.
111
Third party who contracts with mandatary is bound to principal when
mandatary contracts in principal’s name, or when mandatary discloses mandate but not identity of principal.
112
Third party is bound to principal even when mandate is undisclosed, unless
the obligation that is created is strictly personal.
113
Mandate and authority of mandatory terminate upon
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
114
Mandatary’s authority continues in the following circumstances
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.
