BEGINNING SCULPTURE ART 1762
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LOUISIANA CIVIL LAW OBLIGATIONS IN GENERAL amp CONVENTIONAL OBLIGATIONS Professor Trahan Course Outline INTRODUCTION A This is a civil law course B This course is about more than contracts Look at the Table of Contents to your Civil Code in the 2002 Edition it starts on p XXV In which quotBookquot of the Code is the subject of quotObligationsquot addressed In which quotTitlequot or quotTitlesquot What39s the name of Title III What s the name of Title IV What s the name of Title V quotObligations Arising Without Agreementquot What light if any does this organizational scheme shed on our question quotIs 39obligations39 coterminous with 39contracts39quot But just what are these quototherquot obligations that is those that don39t spring from contracts IH 1 Jean Sot realizing that the next payment on his home mortgage will soon be due makes out a check to the mortgage creditor Cajun Bank amp Trust and mails it off There39s just one problem Jean Sot who39s not very bright mistakenly mails the payment to Creole Bank amp Trust Is there an obligation If so what is it Hint Look first at the title of quotTitle V Book IIIquot of the Civil Code which appears just before article 2292 and then at that article 2299 IH 2 TiBoy deliberately backs his pickup truck over LilFille39s roses Is there an obligation If so what is it Hint See CC art 2315 IH 3 TiBoy negligently backs his pickup truck over LilFille39s roses Is there an obligation If so what is it Hint Look at CC arts 2315 amp 2316 PART I OBLIGATIONS IN GENERAL A Definition of quotObligationquot 1 Common Definition Duty How is the term quotobligationquot commonly used What is the counterpart to or correlative of quotdutyquot 2 Technical Definition Juridical BondRelation Is the quottechnicalquot meaning of obligation the same If so how is it different See CC art 1756 sent 1 a Legal Relationship 1 Legal Relationship What39s the significance of defining quotobligationquot as a legal relationship 2 Legal Relationship a Prolegomena Juridical Relations Read Trahan Supp 25 1 Definition of Juridical Relation What is a quotjuridical relationquot 2 Elements of Juridical Relations What are the quotelementsquot of a juridical relation In other words what are the essential attributes of every juridical relation a Subjects 1 Definition of Subject What do we mean by the quotsubjectsquot of juridical relations 2 Types of Subjects Every subject of a juridical relation civil law scholars agree falls into either of two categories What are they What39s the difference b Objects What do we mean by the quotobjectquot of juridical relations b Conclusions Obligations as a Kind of Juridical Relation b Performance by Obligor for Obligee What39s the significance of defining obligation as a relationship quotwhereby a person called the obligor is bound to render a performance in favor of another called the obligeequot 1 Prolegomena The Taxonomy of Juridical Relations in General Read Trahan Supp 5 Weill amp Terre n0 239 a First Division Patrimonial Relations V Extra Patrimonial Relations Read Trahan Supp 59 1 Preliminary Matters a Explication of the Concept of Patrimony What does the term quotpatrimonyquot mean b The Distinction Between Patrimonial amp Extra Patrimonial Rights amp Duties 1 Patrimonial Rights amp Duties What do we mean by a patrimonial right or duty What are some examples See CC arts 477 533 534 646 1906 2292 2298 2299 2315 2317 2 Extra Patrimonial Rights amp Duties What do we mean by an extrapatrimonial right or duty What are some examples See CC arts 98 21517 224 227 2 The Distinction Between Patrimonial amp Extra Patrimonial Relations a Patrimonial Relations b Extra Patrimonial Relations b Second Division Real Relations V Obligations Credit Relations Read Trahan Supp 9l5 1 Real Relations a Definition What is a quotreal relationquot What39s a real right See CC art 476 cmt b amp art 1763 cmt b What do we mean when we say that real rights confer direct and immediate authority over a thing What do we mean when we say that real rights are held against the world Now how is real obligation defined See CC art 1763 Isn t there something wrong with this concept What is it See id cmt b Wouldn t it be better to speak of a real duty Why What do you think of this definition of real relation It s a juridical relation whereby quoteverybody else is obligated not to interfere with the holder39s use enjoyment andor disposal of a thingquot Hans Kelsen GENERAL UEONKOF LAW amp SMWE 76 Anders Wedberg tr 1945 b Elements 1 Subjects Who are the quotsubjectsquot of the juridical relation called quotreal relationquot Who39s the active subject Who39s the passive subject 2 Object How should we describe the quotobjectquot of this relationship called quotreal relationquot 2 Obligations a Definition What again is the definition of obligation or credit relation See again CC art 1756 b Elements 1 Subjects Who are the quotsubjectsquot of the juridical relation called quotobligationquot Who39s the active subject What is he called Who39s the passive subject What s he called 2 Objects How should we describe the quotobjectquot of the juridical relation called quotobligationquot What might that object entail See CC art 1756 sent 2 2 Conclusion What Distinguishes Obligations from Other Members of the quotFamilyquot of Juridical Relations a As Opposed to Extra Patrimonial Relations b As Opposed to Real Relations B Sources of Obligations 1 Explication Definition What do we mean by the expression quotsources of obligationsquot See CC art 1757 Levasseur Precis 3 Trahan Supp 1518 b Categorization What are these sources or more precisely into what categories do these sources break out 1 Doctrinal Scheme How does the doctrineior at least modern doctrineidivide up the universe of sources of obligations a Juridical Facts Read Trahan Supp 1819 1 Definition What39s a juridical fact 2 Varieties a Licit Facts 1 Management of the Affairs of Another OCH 1 Pascal leaves his estate in Nulle Part Louisiana for an extended vacation in Provence France While he39s away a wildfire rages through the Nulle Part area threatening Pascal39s estate Upon hearing of the fire Pascal39s friend Olide acting on his own initiative immediately takes a work crew out to Pascal39s estate where he builds several fire breaks at his own expense As a result of his efforts Pascal39s estate is saved Is there now a juridical relation to be more precise an obligation between Pascal and Olide If so what rights and duties does this obligation entail And what was its source See CC arts 2292 amp 2297 2 Payment of a Thing Not Due OCH 2 For the past 30 years Jean Sot has been faithfully making the monthly installment payments on his 30year home mortgage loan Though the payment he made last month was supposed to have been his last it paid off the final balance Jean Sot who s not to bright doesn t realize it And so he mails off yet another payment to the bank Is there now a juridical relation to be more precise an obligation between Jean Sot and Creole If so what rights and duties does this relation entail And what was its source See CC arts 2297 amp 2304 3 Unjustified Enrichment OCH 3 based on Edmonston v ASecond Mbrtgage C0 289 So 2d 116 La 1974 Edmonston took out a 16000 loan from Insurance Company To secure the loan she i pledged to Insurance Company a life insurance policy that she and her husband had taken out on his life and ii gave Insurance Company a first mortgage on her land Later Edmonston borrowed 4000 from Mortgage Company To secure that loan Edmonston gave Mortgage Company a second mortgage on her land Still later Edmonston ran into financial difficulty To solve the problem Edmonston worked out a new deal with Mortgage Company For her part Edmonston quotdationedquot1 her land to Mortgage Company Mortgage Company in return declared its loan to Edmonston repaid in other words remitted her debt and further quotassumedquot2 Edmonston s obligations under the loan agreement with Insurance Company Insurance Company did not however release Edmonston from those obligations Not long thereafter Edmonston s husband died At that point Insurance Company as was its right prevailed upon Edmonston to use the proceeds of the life insurance policy on her husband s life to pay off the balance of her debt Once Edmonston paid off the debt in this manner there was of course no debt to Insurance Company left for Mortgage Company to repay the debt Mortgage Company had promised Edmonston it would repay Is there now a juridical relation to be 1 The term refers to a certain kind of contract for transferring property rights known in French as dation en paiement and in English as giving in payment For an explication of the dation that s what most Louisiana lawyers call it see CC arts 26552659 2 For an explication of assumption see CC arts 18211822 more precise an obligation between Edmonston and Mortgage Company If so what rights and duties does this relation entail And what was its source See CC 2298 b Illicit Facts OGH 4 Jean Sot out of sheer meanness deliberately backs his tractor up over his neighbor s flower bed destroying 100 worth of the flowers Is there now a juridical relation to be more precise an obligation between Jean Sot and his neighbor Clodice If so what rights and duties does it entail And what was its source See CC art 2315 OGH 5 Jean Sot through inattention and carelessness backs his tractor up over his neighbor s flower bed destroying 100 worth of the flowers Is there now a juridical relation to be more precise an obligation between Jean Sot and his neighbor Clodice If so what rights and duties does it entail And what was its source See CC art 2315 2 Juridical Acts Read Trahan Supp 2021 a Definition What39s a juridical act When we speak of juridical quotactsquot are we talking about pieces of paper To put it another way when we speak of the quotaccomplishmentquot of a juridical act do we have in mind the signing of some document labelled for example quotAct of Salequot or quotLast Will and Testamentquot If not then what is the relationship between say the juridical act of selling a house on the one hand and the act of sale that the seller and buyer write up and sign on the other How does juridical act as just defined differ from juridical fact as we defined it earlier b Varieties 1 Multilateral Acts What39s a multilateral act What s the common or familiar name for this quotmanifestationquot of common wills or quotaccordquot of wills See CC art 1906 amp the name of Book III Title IV of the CC OGH 6 Pascal a law student asks his friend Olide to type up a certain term paper for him by a certain date for which Pascal offers to pay him 5 per page Olide says Mais Quil Is there now a juridical relation to be more precise an obligation between Pascal and Olide If so what rights and duties does it entail And what was its source See CC arts 2669 2673 2675 2 Unilateral Acts What39s a unilateral act 2 The Legislative Scheme So much for the doctrine But what about Louisiana law ieq legislationcustom Is there a legislative scheme for classifying quotsources of obligationsquot If so does it reflect the modern doctrinal theory of those sources or something else See CC art 1759 Levasseur Precis 36 2 The Significance of the Categories Why does the quotsourcequot of the obligation matter a The Pertinence of Will to Effectivity b Procedure OCH 7 Pascal hires Olide a cab driver from Jefferson Parish to drive him from his home in Lafourche Parish out to the airport in Terrebonne Parish Just after they cross the Terrebonnne Parish line Olide who is intoxicated misjudges a curve in the road sending the cab crashing into a ditch As a direct result of the accident Pascal sustains severe personal injuries How long can Pascal wait before bringing suit against Olide Where in what venue must the suit be brought Why Assume that Olide was negligent in misjudging the curve and that the cause of his negligence was his intoxication See CC arts 3499 3492 La Code Civ Proc art 761 An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract amp art 74 An action for the recovery of damages for an offense or quasiioffense may be brought in the parish where the wrongful conduct occurred or in the parish where the damages were sustained c Damages OCH 8 The same as OCH 7 What kinds of damages can Pascal recover Why Assume that Olide by intoxicating himself acted in wanton or reckless disregard of Pascal s safety See CC arts 1994 1999 2315 23154 Work the hypotheticals found in Trahan Supp 2123 C Classification of Obligations 1 By Their Objects Levasseur Precis 6 a Traditional Classification When classified by their objects obligations the traditional theorist tell us fall out into three categories What are they See CC art 1756 sent 2 1 The Categories a To Give What39s an obligation quotto givequot Does quotgive39 as used in this context have its ordinary meaning Or does it have a special technical meaning Levasseur Precis 78 OCH 9 Olide behind the wheel of his new Mercedes intentionally runs over Pascal in the parking lot causing him to sustain personal injuries There39s now an obligation between them namely the obligation of tortfeasorvictim As a part of that obligation Olide owes a duty to repair the damage he39s caused Pascal in particular to pay Pascal money Can39t we say that Olide has to quotgivequot Pascal money in the sense of quotturning overquot or quotdeliveringquot the money And so can39t we say that the obligation is an obligation quotto givequot Why or why not OGH 10 Pascal and Clodice agree that Pascal will sell her his estate Belle Terre for 250000 There39s now an obligation between them namely that of buyer and seller As part of that obligation Pascal executes an instrumentan quotAct of Salequotin which he transfers his ownership interest in the estate to Clodice Can we say that Pascal has to quotgivequot the estate to Clodice How can we say that He39s getting paid isn39t he lsn39t an exchange for payment the antithesis of quotgivingquot at least in the sense of quotmaking a giftquot Why or why not What are the possible sources of obligations to give Can such an obligation ever arise from a juridical fact Or do all such obligations spring from juridical acts From what kinds of juridical acts can such obligations arise Any and all of them Or just certain kinds See CC arts 1468 1469 2439 2660 2655 How precisely does one perform such an obligation ie exactly what must one do to effect the transfer of ownership or other real right Recall the earlier hypothetical in which Pascal agreed to sell and Clodice to buy Pascal39s estate OGH 10 How does Pascal discharge his duty to give ie to transfer ownership of the estate See CC art 2456 Now is it always true that duties to give are automatically discharged through the very making of the juridical acts that create OGH ll Suppose that Pascal hires Jean Sot to build a chicken coop for him Is ownership of the coop transferred when the agreement is reached If not then when OGH 12 Suppose that Pascal agrees to sell and Clodice to buy quotten bucketsquot of Pascal39s socos3 which at the time of the agreement are still hanging on Pascal s vines ls ownership of the grapes transferred when the agreement is reached If not then when See CC art 2657 b To Do What39s an obligation quotto doquot Does quotdoquot as used in this context have its ordinary meaning Or does it like quotgivequot have a special technical meaning See Levasseur Precis 89 OGH l4 Recall OGH 13 in which Pascal owes Clodice a duty to sign over his estate to her Can39t we say that the obligorPascalowes a duty quotto doquot lsn39t quotsigning the act of salequot or if there39s no such act quotshaking handsquot on the deal quotdoingquot something Why or why not 1 Duties quotto doquot arising from juridical acts OGH l5 Pascal rents his farmhouse to Clodice for a year for 10000 What kind of contract is this Does Pascal have any duties to do See CC art 2692 Now what about Clodice Does he have any such duties See CC art 2746 OGH l6 Pascal hires Jean Sot to pick his Muscadines for 525hour What kind of contract is this A quotlease of services or laborquot See CC art 27451 Does Pascal have any duties to do Now what about Jean Sot Does he have any such duties OGH l7 Pascal agrees to sell and Clodice to buy Belle Terre for 250000 We already know that Pascal by entering into this agreement simultaneously undertook and performed a duty to give Belle 3 Cajun for Muscadines one of the few strands of grape that are indigenous to the southern US Terre to Clodice But does he not in addition have some duty or duties to do See CC art 2475 What about Clodice Does she have any such duties See CC art 2487 2 Duties quotto doquot arising from licit juridical facts OGH 18 Pascal leaves for an extended vacation in Provence France where he cannot be reached While he39s away a fire rages through the area threatening Belle Terre His friend and neighbor Olide without consulting Pascal springs into action building firebreaks etc on Belle Terre to fend off the blaze at great cost to himself His efforts are successful Does Pascal have any duties to do See CC art 2297 OGH 19 Jean Sot thinking that his monthly home mortgage payment is about due makes out a check to the mortgage creditor Cajun Bank amp Trust and mails it off There39s just one problem Jean Sot finished paying off the mortgage last month Does the Bank have any duties to do See CC arts 2299 amp 2304 l 1 OGH 20 Pascal hires Jean Sot to harvest the Muscadines in his vineyard on Belle Terre But Jean Sot who39s not to good with directions ends up at Olide39s estate Terre Puante where he picks Olide39s Muscadines by mistake Olide was planning on having them picked but had not yet gotten around to it Does Olide have any duties to do See CC art 2292 3 Duties quotto doquot arising from illicit juridical facts OGH 21 Clodice sprays some herbicide on her estate Terre Facile which runs off onto Pascal39s estate killing his Muscadines It is determined that Clodice applied the herbicide in a negligent manner Does Clodice have any duties to do See CC arts 2315 and 2316 c Not to Do What39s a duty quotnot to doquot Does quotnot to doquot as used in this context have its ordinary meaning Or does it like quotgivequot have a special technical meaning See Levasseur Precis 910 1 Duties quotnot to doquot arising from juridical acts OGH 22 Recall OGH 15 Do Pascal and Clodice have any duties not to do If so what are they See CC arts 2698 27101 amp 2711 OGH 23 Recall OGH 16 Suppose that Pascal and Jean Sot agree that their employment relationship shall endure throughout the harvest season ie about one month Do Pascal or Jean Sot have any duties not to do If so what are they See CC arts 2748 and 2749 2 Duties quotnot to doquot arising from licit juridical facts OGH 24 Recall OGH 18 Suppose i that the threat was posed not by fire but by slowly rising water in a nearby bayou and ii that Pascal could be immediately reached by telephone Would Olide have a duty not to do If so what is it See CC art 2294 3 Duties quotnot to doquot arising from illicit juridical facts Can an illicit juridical act ie a tort give rise to a duty not to do 2 Significance of the Categories Remedies Why does the quotobjectquot of the obligation matter In other words what practical difference does it make whether a particular duty is one to give to do or not to do Read CC arts 19861987 and 1994 33 U r fr K fr 0 U o 1 General rule 2 Exception duty to deliver c Duty Not to Do b Modern Alternative Classification Read amp Trahan Supp 2327 excerpts from various foreign civil law treatises re obligations of result amp means 1 The Categories Read Levasseur Precis 1011 a Definitions What39s an obligation or duty of result b Illustrations 1 Duties to Give Not to Do and to Deliver 2 Duties to Do Other than the Duty to Deliver a Examples of Duties to Do that are Duties of Result 1 Duties of result arising from juridical acts OGH 25 Recall OGH 15 Does Pascal have any duties to do that are also duties of result If so what is it See CC art 2692 OGH 26 Pascal hires Jean Sot dba Cajun Movers to move his furniture from his home in Nulle Part to an apartment he has taken in la ville grande the big city ie Gueydan While Jean Sot is en route with the furniture from Nulle Part to Gueydan he approaches a railroad track that spans the highway Though Jean Sot in crossing the track slowed his truck to a crawl the truck nevertheless bounced causing a vase packed inside the truck to slip lose from the ropes that had secured it and to fall The vase was a total loss Pascal then brings suit against Cajun Movers alleging that it breached the contract of transport and seeking to recover damages for the loss of the vase The evidence presented at trial proves i the speed at which Jean Sot had crossed the track was reasonable it was even slower than the speed at which others who transport breakable things on the highway typically cross it and ii Jean Sot had secured the vase inside the truck in a reasonable fashion Will Pascal recover Why or why not See CC art 2754 2 Duties of result arising from licit juridical facts OGH 27 Recall OGH 19 The Bank clearly enough had a duty to return the payment But what kind of duty was that A duty of result or a duty of means A duty of result Why b Examples of Duties to Do that are Duties of Means 1 Duties of means arising from juridical acts OGH 28 Recall OGH 15 Does Clodice have any duties to do that are also duties of means Explain See CC art 2710 OGH 29 When Pascal learns that there s a small tumor growing on his liver he hires Dr Medecin a surgeon to remove the tumor surgically The operation takes place Though Dr Medicin succeeds in removing most of the tumor he can t get all of it the rest of it is inoperable After the operation when Pascal is informed of the results of the surgery and realizes he will soon die he brings suit against Dr Medicin alleging that Dr Medicin breached the surgical contract and seeking damages The evidence produced at trial proves that both Dr Medicin and the rest of the surgical team conducting themselves as reasonable medical professionals ie met the applicable standard of care What result would you predict Why See Alexander v Alton Ochsner Medical Found 276 So 2d 794 4th Cir 1973 Levasseur Text 3839 2 Duties of result arising from licit juridical facts OGH 30 Recall OGH 18 We39ve already established that Olide once he undertook to quotmanagequot this quotaffairquot of Pascal incurred a duty of result Did he also incur a duty of means Explain See CC art 2295 2 Significance of the Categories Burden of Proof Why do we care whether a particular duty is one of result or means See Levasseur Precis 12 a Duty of result Duty of means 2 By the Extent of Their Effects a Prolegomena to the Analysis Effects of Obligations in General What are the effects of obligations See CC art 1758 1 From the standpoint of the Obligee 2 From the standpoint of the Obligor b The Analysis 1 The Categories a Natural Obligation Read Levasseur Precis 1320 Trahan Supp 2729 1 Definition What39s a natural obligation See CC arts 1760 amp 14 see also Litvinoff Treatise Not every duty in conscience ie moral duty will give rise to a natural obligation but only those that the lawmaker and the courts deem most conforming to the general interest and in accordance with the social consensus Tthe expression quotnatural obligationquot is nothing but a convenient device to introduce moral considerations into the body of the law An obligation which is labeled as natural is nothing but a moral duty regarded as susceptible of engendering certain legal effects 2 Examples a Prescription OGH 31 After Professor Symeonides runs me down in the parking lot causing me to sustain personal injuries I wait over a year to bring suit against him There was an obligationa civil obligation between us at one time but is there one now Why or why not If not does that mean there s no obligation at all between us now Why or why not See CC arts 3492 amp 1762 1 b Relative nullity for lack of capacity OGH 32 TiBoy Clodice39s 15year old son agrees to sell Olide who knows TiBoy s age his pirogue for 5 Sometime later before the pirogue has been delivered TiBoy changes his mind Can Olide sue to force TiBoy to deliver the pirogue Why or why not If not does that mean that there s no obligation at all between Olide and Ti Boy now Why or why not See CC arts 1918 1923 1924 amp 17622 c Formal nullity of a testament OGH 33 Papere Clodice39s elderly father realizing that he39s about to die stumbles over to his 1950 edition SmithCorona manual typewriter and hammers out a document that he entitles quotLast Will amp Testamentquot In it he purports to quotleave everything to my beloved daughter and only child Clodice except my collection of Dewey Balfa LPs which 1 leave to my beloved grandson TiBoyquot After pulling the sheet from the typewriter and signing and dating it he drops dead Can TiBoy invoke legal process to force Papere39s estate to execute the special beguest that Papere left him ie to turn over the Dewey Balfa records to him Why or why not If not then who gets the records Why Is there now no sort of obligation between that person and TiBoy Explain See CC arts 1575 888 amp 17623 Are there still other natural obligations that is natural obligations not listed in article 1762 See CC art 1762 cmt b Read and brief Atkins v Comm r of Internal Revenue 30 F2d 761 5th 1929 Foster J Levasseur Text 14 In connection therewith read CC arts 1227 amp 1229 Read and brief Succession of JOnes 505 So 2d 841 2d Cir 1987 Levasseur Text 1318 In connection therewith read CC arts 1530 b Civil Obligation What39s a quotcivilquot obligation See CC art 1762 ll 1 amp 3 CC art 1760 cmt b Levasseur Precis 2021 2 The Significance of the Distinction Effects Why do we care whether a particular obligation is natural or civil a Civil Obligation Full Effects What are the effects of a civil obligation b Natural Obligation Limited Effects What about the effects of a natural obligation See CC art 1761 1 Unrecoverable Performance OGH 34 As he was driving past Belle Terre one day Jean Sot lost control of his tractor and veered straight into Pascal39s Muscadine vineyards destroying a good bit of the crop Time rolled by Then one day about 18 months later Pascal reminded Jean Sot of the accident stated that Jean Sot quotowedquot him damages the value of the lost grapes and demanded that he pay up immediately Jean Sot made the payment The very next day Jean Sot ran into Olide When Jean Sot told Olide what had happened the day before Olide shouted quotTu b te Chou You didn39t owe Pascal anything at all His claim against you prescribed 6 months agoquot Jean Sot then marched over to Belle Terre where he demanded that Pascal return the payment Pascal refused Jean Sot then sued Pascal seeking to recover what Jean Sot described as quotthe payment of a thing not duequot Who wins Why See CC arts 1761 amp 17621 CC art 1761 cmt b Onerous Cause a Definition antithesis of gratuitous b Differences 1 Solemnities Read CC arts 2440 amp 1536 2 Restrictions Read CC arts 1227 1530 1497A 1503 3 By Their Affinity to the Person of the Subject Read Levasseur Precis 3034 a The Categories lnto what categories do obligations break out when classified according to their affinity to the person of the subject See CC art 1765 amp cmt b 1 Statutory Definitions a Explication What39s an quotimpersonalquot or as the Civil Code ineptly puts it quotheritablequot obligation See CC art 1765 What about a quotstrictly personalquot obligation See CC art 1766 b Criticism Transferability an Attribute of Rights amp Duties Not Obligations Is it really appropriatequotaccuratequot might be the better termto speak of quotimpersonalquot and quotstrictly personalquot obligations Is it the transferability of the obligation as a Whole that we39re concerned about or is it the transfer of something less than the whole Look again at the structure of the definitions set out in articles 1765 and 1766 2 Criteria for Distinguishing the Categories a The Criteria Explained 1 General rule What39s the general rule See CC art 1765 1 2 OGH 35 taken from Toullier39s civil law treatise the source of our articles on heritable obligations Pascal loans Olide 10000 Before Olide repays the loan both Pascal and Olide die Pascal is survived by one heir his son TiBoy Olide by one heir his nephew JeanClaude Can TiBoy demand that JeanClaude repay the loan Why or why not 2 Exceptions What39s the exception See CC art 1765 1 2 a Nature of the right or duty 1 Nontransferability in general What if anything is unique to the nature of a quotstrictly personalquot right or duty See Ferguson v Thomas summarized in Bogart v Caldwell 66 So 2d 629 2d Cir 1953 Levasseur Text 2627 Levasseur Precis 32 6 Toullier DRONTCIVHJFRANQHS 406 at 440 2d ed 1819 a strictly personal obligation is one that is N quotnaturally attached to the personquot of the obligor or obligee Justinian C6519 strictly personal obligations are those undertaken with the quotintention that the designated person alone should perform the actsquot as opposed to obligations in which quotit makes no difference whether the act is to be done by the person mentioned or by someone else quot Read Johnson V Levy 43 So 46 La 1907 Levasseur Text 20 22 How did the court characterize the duty or duties at issue in that case 2 Presunptions of nontransferability Read CC art 766 TT 2 amp 3 What39s the difference between these two paragraphs a The duty Under what circumstances is the duty presumed to be nonheritable or in other words when is the obligation presumed to be strictly personal for the obligor See CC art 766 T 2 amp Johnson V Levy 43 So 46 La 1907 Monroe J Levasseur Text 2022 1 Performance requiring special skills or qualifications OGH 36 After Pascal checked into the local hospital complaining of chest pains his doctors soon determined the cause of the problem the arteries around his heart were almost completely blocked Not wanting to undergo coronary bypass surgery Pascal then explored possible alternative procedures He finally settled on a new ultrasound procedure that had been poineered by Dr LaCoeur of Johns Hopkins Medical School Since he could afford it Pascal hired Dr LaCoeur himself to perform the operation On the eve of the date on which the operation had been scheduled LaCoeur having decided that he39d rather play golf than operate the next day quotdelegatedquot the task to his junior assistant Dr Hart Ts LaCoeur now off the hook And must Pascal now undergo surgery at the hands of Hart Why or why not OGH 37 Olide has come up with a new scam to earn money the development and marketing of a new line of skin care products called Cajun Care To make the venture a success he39s convinced he needs a highprofile celebrity of Cajun descent to endorse the product line And so enters into an advertising contract with Ali Landry former Miss Universe USA and now the Doritos girl a Cajun from Breaux Bridge Louisiana Before the first commercial is filmed however Ali learns of Olide39s dubious character and of the equally dubious quality of his products Rather than go through with the deal she quotassignsquot her interest in the contract to LilFille who39s just been crowned queen of the annual Louisiana Swine Festival Can Ali get out from under her duty in this way Is Olide now quotstuckquot with LilFille the Swine Queen as his celebrity spokesperson Why or why not 2 Performance of personal services Read CC art 1766 cmt c Fletcher v Richau Levasseur Text 35964 Restatement of Contracts 379 1932 379 CONTRACT EOR PERSONAL SERVICE A promise to render personal service or supervision will not be specifically enforced by an affirmative decree Comment a In applying the rule stated in the Section it is the personal character of the performance to be rendered that is determinative not the personal character of the duty to render it c Among the many varieties of person service contracts to which the rule of the Section applies are those requiring performance as an actor a singer a salesagent a ball player a teacher a mechanic a valet a cook a railway gate tender a personal custodian of children Among the contracts that are included are all contracts of employment creating the intimate relation of master ans servant the latter s performance is personal service and that of the former freguently involves personal supervision Illustrations l A contracts with B to play the part of Hamlet at B s theater A wrongfully refuses to play his part Because A s performance entails the rendition of a personal service B cannot get a decree reguiring him to act 3 A who is a sculptor contracts to design and execute a memorial statue for B A wrongfully refuses to do the work Because A s performance entails the rendition of a personal service B cannot get a decree for specific performance 4 A contracts to transfer specific land to B in return for B s promise to give care and support for A s sick wife On breach by B A cannot get a decree for specific performance for B s performance entails the rendition of a personal service b The right Under what circumstances is the right presumed to be nonheritable or in other words when is the obligation presumed to be strictly personal for the obligee See CC art 766 l OGH 38 based on Acosta v Cole 178 So 2d 456 La App 1 Cir 1965 Clodice who39s always dreamed of becoming a prima ballerina hires Madame Jambes the director of the local ballet society to give her dance lessons Before the lessons are complete Clodice dies She is survived by only one heir her daughter LilFille Can Lil Fille now demand that Madame Jambes give her the rest of the lessons or if Madame Jambes refuses can LilFille demand damages for nonperformance Why or why not Read and brief Bogart v Caldwell 66 So 2d 629 2d Cir 1953 Levasseur Text 2428 OGH 39 Professor Trahan a musical eccentric enters into a long term contract with the owner of a local CD store for the purchase of certain exotic 20th century classical music CDs in particular CDs featuring atonal dodecaphonic polychordal andor polymodal sacred choral music Under the terms of the contract the owner of the store upon receiving a new CD of this kind is to quotsellquot it to the professor then deliver it to his law school office In the course of time the professor dies Do his children whom you can assume have more typical musical tastes inherit his rights under the contract ie the right to get title to and to receive delivery of the CDs In other words can they demand that the store owner now supply them with the CDs Why or why not b Will of the parties OGH 40 Pascal loans Olide 10000 The loan agreement stipulates that in the event Olide dies without having repaid the loan in its entirety then Olide39s heirs quotwill not be held for the debtquot Before he finishes paying off the loan Olide dies Can Pascal recover the outstanding balance from JeanClaude Olide39s sole heir Why or why not b Significance of the Categories Why might we care whether a particular right or duty is impersonal or strictly personal 1 Transferability Review Johnson v Levy 43 So 46 La 1907 Monroe JJ Levasseur Text 2022amp Bogart v Caldwell 66 So 2d 629 2d Cir 1953 Levasseur Text 2428 2 Remedies Review Fletcher v Richou Levasseur Text 35964 3 Dissolution 4 By Their Displacement In Time Temporal Modalities Obligations can also be classified according to their temporal displacement or to put it another way according to whether their existence or performance is displaced through time either delayed or cut short a The Categories 1 Pure amp Simple Obligations What39s a quotpure and simplequot obligation See CC art 1777 1 2 CC art 1870 Simple obligations are such as are not dependent for their execution on any event provided for by the parties and which are not agreed to become void on the happening of any such event Levasseur Precis 34 1 Josserand COURSIE Dmnj CIVHJPOSNIF FRANQHS nE 115 at 91quotRights pure and simple are those whose existence and performance are not suspended and that follow their normal course from the moment of their creationquot OGH 41 During the Muscadine harvest season Clodice calls Pascal on the phone and orders ie buys 10 pails of Pascal39s best Is there now an existing obligation between Clodice and Pascal If so when is performance due Why OGH 42 While Pascal39s away on vacation and out of touch his friend Olide without first consulting Pascal intervenes to save Pascal39s estate Belle Terre from a raging wildfire 1n the process Olide incurs substantial expenses Is there now an existing obligation between Pascal and Olide If so when is performance due Why 2 Obligations Affected by Modalities a Definition of Modality What39s an obligation quotaffected by a modalityquot An obligation is quotaffected by a modalityquot if i its existence has been displaced in time that is if a it does not immediately come into existence upon the occurrence of the juridical act or fact that gives rise to it or b its existence can be brought to an end through some event other than performance or ii its performance has been displaced in time that is if b the obligee cannot immediately demand performance or b the obligor cannot immediately render performance b Types of Modalities a Definition What39s a quottermquot See CC art 1778 Levasseur Precis 35 b Types of Term 1 By Their Effects a Suspensive Term Read Levasseur Precis 36 then read amp brief In re Liquidation of Hibernia Bank amp Trust Co 189 La 813 1938 Levasseur Text 42 b Extinctive Resolutory Term Read Levasseur Precis 36 Then read but don t brief HOusing Authority V T Miller amp Sons 120 So 2d 494 La 1960 Levasseur Text 4349 Which obligation was subject to a term What kind was it 2 By The Means of Their Determination Read Levasseur Precis 3738 a Fixed Term What39s a fixed term or as the Civil Code calls it a quotcertainquot term What are some examples In re Liquidation of Hibernia Bank amp Trust C0 189 La 813 1938 Levasseur Text 4243 HOuSing Authority v T Miller amp Sons 120 So 2d 494 La 1960 Levasseur Text 4349 OGH 43 Pascal buys a case of champagne from Olide which Olide is to deliver to him on quotBastille Dayquot Bastille Day falls on the same day each year namely July 14 Is the term fixed Why OGH 44 Pascal buys 100000 doubloons from Olide which Olide is to deliver to him on Mardi Gras morning Is the term fixed Why b Unfixed Variable Term What39s an unfixed or variable term or as the Civil Code refers to it an quotuncertainquot term See CC art 1778 1 Determinable Term a By the Occurrence of a Future and Certain Event See Weill amp Terre DRONTCTVUJ LES OMJGATKWS nE 905 at 986 quotThe term is uncertain when it is attached to an event whose realization though certain to occur will take place at a moment that one cannot yet knaNHW OGH 45 Pascal and his mistress Clodice who are now up in years are shacked up in Pascal39s house on Belle Terre Thinking that he39d like to take a smaller place in town once Clodice dies Pascal promises to sell and deliver his house to his son TiBoy quotupon the death of Clodicequot ls Pascal39s duty to give and deliver the house subject to a term If so what kindfixed or unfixediand why OGH 46 It39s 2035 Civil war has just broken out between Les Enfants d Acadie a militant Cajun separatist group and the State of Louisiana To raise funds to purchase weapons the state borrows 10000000 from Hibernia National Bank By the terms of the loan contract the funds are to be repaid quotwhen the present hostilities ceasequot Is the obligation subject to a term If so what kindifixed or unfixediand why b By the Intent of the Parties An unfixed or uncertain term is also determinable the Civil Code tells us if it is quotdeterminable by the intent of the partiesquot What in the world does that mean OGH 47 LilFille aged 18 whom Theophile has asked to the senior prom calls Julie the only dressmaker in Nulle Part and orders a prom dress Still later LilFille goes to Julie s shop where she is fitted for the dress ls Julie s duty to make and deliver the dress subject to a term If so what kindfixed or unfixed lf unfixed is it determinable or undeterminable lf determinable how is it to be determined Why OGH 48 After buying Pascal s crop of Muscadines which are still on the vine Olide hires Jean Sot to transport the Muscadines from Pascal s vineyard to my Olide s winery The Muscadines will not be ripe for several months yet ls Jean Sot s duty to carry the Muscadines subject to a term If so what kindfixed or unfixed lf unfixed is it determinable or undeterminable lf determinable how is it to be determined Why 2 Undeterminable Term What39s an undeterminable unfixed term OGH 49 In early March Pascal the owner of Belle Terre places a phone call to Jean Sot a seasoned barn whitewasher quotNow that the weather39s warming up I39d like you to come whitewash my barnquot begins Pascal quotSounds good to mequot replies Jean Sot quotHow much do you chargequot asks Pascal quotFor a barn the size of yoursquot answers Jean Sot quot1000quot quotIt39s a dealquot With that they bid each other good bye and hang up When can or must Jean Sot perform Must he begin the job by any certain date If not is he free to wait as long as he pleases Explain See CC art 1778 cmt e 3 By Their Beneficiaries Read Levasseur Precis 3940 The Categories a For the Benefit of the Obligor OGH 50 Pascal orders a new Balfa Toujours CD from the Cajun Music Club The order form which represents the contract between Pascal and the Club states that the customer must quotallow six weeks for deliveryquot Whom does this term benefitPascal or the Club Why Is he or it the obligor or the obligee Why b For the Benefit of the Obligee OGH 51 Pascal who39s about to leave on an extended trip to Provence ask his buddy Olide if he39ll keep Mr Nutty Pascal39s pet nutria while he39s away quotHow long will you bequot asks Olide quotI39m not sure Just to be safe you39d better plan on having to keep him for two weeksquot replies Pascal quotFinequot Olide responds Whom does this term benefitPascal or Olide Why Is he the obligor or the obligee Why c For the Benefit of Both Recall Hibernia What was the nature of the term at issue there Whom did that term benefitthe lender Hibernia or the borrower Holmes Why 2 The Presunption How do we know into which of these three categories a particular term falls ie whether it benefits the obligor alone the obligee alone or both the obligor and the obligee Doesn39t the Civil Code give us a rule to help us in doubtful situations See CC arts 1779 amp 2057 l l 4 By Their Sources Read Levasseur Precis 3839 a Conventional Term We should note however that the conventional term comes in two varieties What are they OGH 52 In the bleak midwinter Pascal phones Jean Sot a seasoned Muscadine harvester and hires him to pick his Muscadines Neither of them says word one about when Jean Sot is to perform this service Is the obligation between them subject to a term or is it quotpure and simplequot so that Jean Sot must perform immediately Why or why not b Legal Term What is a legal term See CC art 2685 c Judicial Term What is a judicial term OGH 53 Clodice buys 10 nutria from Pascal on credit According to their deal Clodice is to remit payment 30 days after delivery Though Pascal promptly delivers the Muscadines Clodice fails to pay by the 30day deadline Pascal sues Clodice seeking to resolve the sale that is seeking the return of the nutria Clodice opposes the action contending that she failed to make payment because she had temporarily fallen on hard financial times and further that she could raise the money necessary for payment if she were given 30 more days Can the court grant her request that is give her a grace period Why or why not See CC art 2013 l 2 c Calculation of Terms How does one calculate the length of a term What if the terminal event is marked by a specific date Read Trahan Supp 2930 What if the terminal event is the end of a specified quotstretchquot of time eg 30 days Recall the Housing Authority case Miller supposed to keep its bid open for quot30 daysquot after the bids were opened Now how did Miller count the 30day period How to begin with did Miller understand the word quotdayquotbusiness day or 24hour day And so when did Miller begin to count the period Is this the right way to count such a period Why or why not If not then what s the right way Does our current legislation reflect the same approach See CC art 1784 amp cmt b d Effects of Terns Read Levasseur Precis 4147 1 Extinctive Resolutory Term What are the effects of an quotextinctivequot or quotresolutoryquot term 2 Suspensive Term What are the effects of a suspensive term a Effects Before the Terminal Event What effects does a suspensive term produce before the terminal event occurs Read Trahan Supp 30 1 The Existence of the Obligation is Not Affected a Obligor Can t Recover Voluntary Performance OGH 54 The same as OGH 53 except that this time Pascal asks for payment on January 15 1997 and Clodice complies Can Clodice recover the payment perhaps on the theory of quotpayment of a thing not yet duequot Can you answer this question without more information If not what else do you need to know Why See CC art 1781 amp cmt b So what if Pascal tricked Clodice into making the payment Could she recover it Why or why not What if Pascal forced her to make the payment at gunpoint Could should recover it Why or why not What if Clodice made the payment mistakenly for example she intended to sent the money to another creditor but sent it to Pascal by mistake Could she recover it Why or why not Does quotvoluntaryquot as used in article 1781 mean the same thing as quotfreequot as used in article 1761 which concerns the recovery of the performance of a natural obligation Why or why not Why is voluntary performance prior to the terminal event not considered to be the payment of a thing not due b Obligee Can Engage in Acts of Conservation OGH 55 On December 1 2000 Pascal buys Olide s estate Terre Puante from Olide for 100000 At Olide s insistence motivated by tax minimization concerns the agreement which is evidenced by an act under private signature provides that the transfer is not to be effective until January 1 2001 In the interim between December 1 and January 1 Pascal learns i that Olide failed to file the act of sale into the public records and ii that Jean Sot has been squatting on part of the land for just shy of 30 years now Pascal wants to know whether at this time circa December 15 2000 he can i file the act of sale into the public records himself andor ii file an action against Jean Sot to have him expelled from the land Why or why not See CC arts 2442 amp 3462 2 The Performance is Deferred a If Term Benefits Obligor 1E Obligee Can t Demand Performance OGH 56 On January 5 1997 Clodice buys 10 nutria from Pascal on credit According to their agreement Clodice has 30 days from delivery to pay the price Pascal delivers the nutria that same day that is January 5 1997 It39s now January 30 1997 Can Pascal demand that Clodice pay up Why or why not See CC art 1781 2E Obligee Can t Claim Compensation Recall the Hibernia case What was it that the obligee Holmes sought in the liquidation proceedings Did the court grant Holmes s demand Why or why not See CC art1893 3E Obligor Can t Claim Prescription OGH 57 On January 1 1997 Pascal loans Olide 100000 which is to repaid in a single balloon payment on January 1 2002 When that date rolls around Olide refuses to pay His reason Citing CC art 34943 which provides that quotan action on money lentquot is quotsubject to a liberative prescription of three yearsquot he argues that Pascal39s right to demand payment has been lost through prescription As Olide sees it that right prescribed 3 years from the date of the loan ie back on January 1 2000 What result Why b If Term Benefits Obligee OGH 58 In October 1996 Clodice hires Olide who39s now running a florist shop to supply fresh cut flowers for her daughter Tite Fille39s wedding which is to take place on February 1 1997 In December Olide makes arrangements to go on a skiing vacation which is to begin on January 25 1997 And so on January 24 1997 Olide always thinking of himself first delivers the flowers to the church Can Olide do this ie perform early Why or why not b Effects After the Terminal Event What are the effects of a suspensive term after the occurrence of the terminal event Read Trahan Supp 3132 e Disappearance of the Term Read Levasseur Precis 47 1 Renunciation What does quotrenunciationquot mean in this context See CC art 1780 cmt b OGH 59 On January 1 1997 Pascal loans Olide 100000 which is to repaid with 10 interest on January 1 1998 The interest you 20 may assume accrues daily On October 1 1997 Olide who has unexpectedly come into a big sum of money sends Pascal a check for 100000 plus 34 of the annual interest7500 to which he attaches this note quotI hereby waive my right to delay repayment until 1231 Consider this payment in fullquot Does Pascal have to accept the payment Why or why not 2 Insolvency OGH 60 The same as the last hypothetical except as follows Through the course of the year Olide suffers a number of financial reversals By October 1 1997 he39s insolvent Can Pascal now demand payment Why or why not See CC art 1782 3 Failure of Security OGH 61 Pascal loans Olide 100000 to finance the construction of a golf course which Olide is to repay in a single balloon payment at the end of 5 years The loan is secured by a mortgage on the golf course site Before construction is complete EPA announces that it39s just discovered a nasty reeking pool of CERCLA hazardous substances in the middle of the land The effect of this announcement is to reduce the market value of the land to zero Notwithstanding that the loan is not yet due can39t Pascal demand something of Olide What Why See CC art 1783 2 Condition Read Levasseur Precis 48 Trahan Supp 3233 a Definition Read Levasseur Precis 4950 1 By Exposition What39s a condition See CC art 1767 cmt c Levasseur Precis What s a conditional obligation See CC art 1767 1 1 a Uncertain Event What39s an quotuncertain eventquot See Levasseur Precis 49 OGH 62 Pascal gives his son TiBoy a house on Belle Terre but with the following stipulation quotIf you die before me title to the house will return to mequot Is Pascal s obligation contingent on an uncertain event Why or why not OGH 63A municipal government after receiving a federal grant for the construction of low income housing hires a local contractor to perform the work The contract however contains the following stipulation quotThe contract is subject to the approval of the Office of Housing amp Urban Developmentquot Does this case sound familiar Is the government s obligation contingent on an uncertain event Why or why not OGH 64 On February 1 1997 Olide and Pascal go to the docks at the Port of New Orleans to pick up a shipment of a tractor that Olide had ordered But when they get there they learn that the ship hasn39t yet come in As the day wears on and the ship still doesn39t show up Olide begins to grow worried Hoping to console his friend Pascal then makes this offer quotIf something happened to the ship and the shipment is lost I39ll let you use my tractor until you can get a new 21 onequot Olide replies quotOkayquot At the end of the day the dreaded news reaches them the ship sank off the coast of Grand Isle the night before January 31 1997 Was the loss of the ship an quotuncertain eventquot Why or why not See CC art 1767 cmt e What does it mean to say that a conditional obligation is quotdependentquot on an uncertain event quotDependentquot in what sense Read Levasseur Precis 5051 1 Resolutory Conditions What39s a resolutory condition See CC art 1767 1 3 OGH 65 Pascal gives his son TiBoy a house on Belle Terre but with the following stipulation quotIf you die before me title to the house will return to mequot Is there now an obligation between Pascal and TiBoy If so what kind Is it dependent on the occurrence of some event How so OGH 66 When Olide39s tractor is lost at sea Pascal let39s him use Belle Terre39s tractor until Olide is able to replace his Is there an obligation between Pascal and TiBoy If so what kind Is it dependent on the occurrence of some event How so 2 Suspensive Conditions What39s a suspensive condition See CC art 1767 1 2 OGH 67 Pascal promises his son TiBoy who39s now engaged to Jolie that he will give him a house on Belle Terre quotupon your marriagequot Before the wedding takes place can TiBoy demand that Pascal turn over title to the house Why or why not OGH 68 A municipal government after receiving a federal grant for the construction of low income housing hires a local contractor to perform the work The contract however contains the following stipulation quotThe contract is subject to the approval of the Office of Housing amp Urban Developmentquot Before HUD sends word of its decision can the contractor demand to start construction Why or why not Read CC art 1771 2 By Contrast a Conditions as Opposed to Terms 1 Conditions in General V Terms in General How do conditions in general differ from terms in general OGH 69 Pascal39s mother Eunice a devout Catholic aged 64 is on the brink of death Concerned about her ultimate destiny Eunice makes this request of Pascal When 1 die please make a gift to St Joseph s Abbey over near Covington and as you do so tell the brothers it s for me and ask the brothers to pray for my soul Pascal promises his mother that he will do it Pascal39s duty clearly enough is subject to a modality What kinda term or a condition Why OGH 70 Pascal39s mother Eunice a devout Catholic aged 64 is on the brink of death Concerned about her ultimate destiny Eunice makes this request of Pascal Please make a gift to St Joseph s Abbey over near Covington and as you do so tell the brothers it s for me and ask the brothers to pray for my soul Pascal promises his mother that he will do it no later than the end of this month Pascal39s duty clearly enough is subject to 22 a modality What kinda term or a condition Why OGH 71 Pascal39s mother Eunice a devout Catholic aged 64 is on the brink of death Concerned about her ultimate destiny and determined to do something about it before she dies so as to avoid even a moment in Purgatory Eunice makes this request of Pascal Please make a gift to St Joseph s Abbey over near Covington and as you do so tell the brothers it s for me and ask the brothers to pray for my soul Pascal tells his mother he d like to help her but that owing to his financial situation it d be difficult for him to do it before the end of this month And so Eunice makes this proposal Well promise me that you ll make the gift if I m still alive at the end of this month Pascal so promises Pascal39s duty clearly enough is subject to a modality What kinda term or a condition Why Read amp brief Holmes Brick V REO Constr 253 So 2d 562 La App 1st Cir 1971 Levasseur Text 4952 then read Trahan Supp 3435 2 Specific Kinds of Conditions V Specific Kinds of Terms a Resolutory Condition V Extinctive Term b Suspensive Condition V Suspensive Term b Conditions as Opposed to Legal Requirements Read CC arts 242 and 2971 Are these supposed quotconditionsquot really quotconditionsquot Why or why not c Conditions as Opposed to Elements Constitutive of Contracts Are the constitutive elements of this or that contract that is the elements that must exist if the contract is to be fully formed and valid be considered quotconditionsquot Would it be correct to say to take one example that the quotconsent of the partiesquot is a quotconditionquot of every contract or to take another example that the buyer39s undertaking to pay the price is a quotconditionquot of every sale Why or why not Is it nevertheless possible for the parties by their mutual assent to transform these constitutive elements or prerequisites for contractual formation into suspensive conditions OGH 72 Pascal and Clodice sign an instrument entitled quotAct of Sale of Nutriaquot whereby Pascal purports to sell Clodice 10 nutria provided that she first quotpay the purchase price of 250quot This contract appears to be a quotconditional salequot What39s the supposed condition 1s such a proviso really a condition and is such a contract really a sale Explain See CC art 2439 OGH 73 Pascal and Olide enter a loan agreement the terms of which provide that Pascal is to loan Olide 100000 on March 1 1997 and that Olide is to repay Pascal 100000 without interest quotwhen and if Pascal demands itquot This contract appears to be a quotconditional loanquot What39s the supposed condition But is such a proviso really a condition and is such a contract 23 really a conditional loan Explain See CC art 2910 b Types of Condition 1 By Their Effects Suspensive V Resolutory Conditions 2 By the Manner of Their Manifestation Express V Implied Conditions Read CC art 1768 Levasseur Precis 52 OGH 74 Pascal sells Clodice 10 pails of Muscadines At the appointed time Pascal has Jean Sot deliver the Muscadines to Clodice39s house Is Clodice without further ado required to accept them Why or why not Look at CC arts 2604 amp 2605 OGH 75 Mrs Nutty Pascal39s pet female nutria is now pregnant Before Mrs Nutty delivers Pascal sells Clodice Mrs Nutty39s quotlitterquot Is the contract subject to some sort of condition Why or why not If so what See CC art 2450 OGH 76 After Olide and Clodice announce their engagement to be married Jean Sot sends them an quotearlyquot wedding present the kind he39d always hoped he39d receive if he were ever to be marrieda prizewinning sow Is this donation subject to any sort of suspensive condition Why or why not If so what Here39s a hint what happens if as is likely Olide gets cold feet and jilts Clodice at the altar 3 By Their Connection to the Will of the Parties Casual Potestative amp Mixed Conditions Read Levasseur Precis 5459 a Casual What39s a quotcasualquot condition See CC art 2023 1870 quotThat which depends on chance and is no way in the power of the creditor or debtorquot OGH 77 In the immediate aftermath of heavy rains Bayou Egout which runs through Belle Terre is rising fast and threatens to flood Olide upon learning of Pascal39s predicament calls him up and says quotIf the bayou does flood and you39re driven out of your house you can stay in my guest room for just 10 a dayquot Pascal accepts the offer Is the obligation between Pascal and Olide subject to a condition Why or why not If so what b Potestative What39s a quotpotestativequot condition See CC art 2024 1870 quotA potestative condition is that which causes the execution of the contract to depend on an event the occurrence or prevention of which is within the power of one or the other of the contracting partiesquot 1 Purely Potestative What to begin with is a purely potestative condition See CC art 1770 1 1amp cmts d amp e OGH 78 In the immediate aftermath of heavy rains Bayou Egout which runs through Belle Terre is rising fast and threatens to flood Olide upon learning of Pascal39s predicament calls him up and says quotIf the bayou does flood and you39re driven out of your house you can stay in my guest room 24 for free provided that it still suits me when you finally askquot Pascal accepts the offer Is the obligation between Pascal and Olide subject to a condition Why or why not If so what kind OGH 79 Jean Sot39s tractor has just broken down preventing him from driving into town to pick up supplies Olide promises to drive him to town the next morning quotif I feel like it when 1 get upquot Jean Sot accepts The obligations to which this labor contract gives rise are clearly subject to a condition But what kind Why 2 Simply Partly Potestative What39s the other kind of potestative condition ie that which the doctrine calls quotsimplyquot potestative See CC art 1770 1 1amp cmts d amp e Weill amp Terre DMHT CRHL LK OMJGATKWS in a simple potestative condition though the event quotdepends in a certain measure on a voluntary actquot of one party or the other quotit is also subordinated in part to contingencies of which that party is not the masterquot Marty amp Raynaud DROIT ClVU LES OMJGATKWS quotA condition is simply potestative when it presupposes the accomplishment by one party of an act that depends on his will but does not depend on it alone inasmuch as it is subjected to exterior contingenciesU OGH 80 Pascal agrees to sell and Clodice agrees to buy Belle Terre quotwhen and if Pascal moves to Gueydanquot The obligations of Pascal and Clodice are clearly subject to a condition What is it And what kind is it Why OGH 81 Olide hires Jean Sot as a salesman to peddle his new product line Cajun Care skin cream to prospective customers According to the contract Jean Sot is to be paid a certain sum for each presentation he makes regardless whether he actually closes a sale Now isn39t Olide39s duty to pay Jean Sot subject to a condition What kind is it Why Read amp brief DeMary v Fontenot 161 So 2d 82 La App 3d Cir 1964 Levasseur Text 5356 c Mixed What39s a quotmixedquot condition See CC art 1870 A mixed condition is one that depends at the same time on the will of one of the parties and on the will of a third person or on the will of one of the parties and also on a casual eventquot OGH 82 Pascal promises to give his son TiBoy a house on Belle Terre quotupon his marriagequot Tsn t Pascal39s duty subject to a condition What is it And what kind is it Why OGH 83 Olide hires Jean Sot as a salesman to peddle his new product line Cajun Care skin cream to prospective customers According to the contract Jean Sot is to be paid 20 for each sale he closes Tsn t Olide39s duty subject to a condition What is it What kind is it Why 4 By Their Possibility Possible V Impossible Conditions See Levasseur Precis 53 Marty amp Raynaud DMHT CRHL LK OMJGATKWS quotImpossibility exists not only in the case of absolute impossibility but also when the realization of the 25 condition presupposes the putting into effect of extraordinary meansquot Trahan Supp 3334 OGH 83V Olide says to Jean Sot I promise to give you 1000 if you do not stop the sun in its course Jean Sot replies I accept Is Olide s obligation to pay Jean Sot the 1000 null Whyorwhyno OGH 833 Olide promises to give Jean Sot who despite years of art lessons still paints like a chicken a job if and when he paints a painting of a blue dog just like Rodrigue Blhecon on attached to Olide s obligation to hire Jean Sot impossible Why or Why not By Their Sources Conventional Legal amp Judicial Like terms conditions can emanate from any of three sources What are they What39s a judicial condition See CC art 1767 cmt d c Prohibited Conditions 1 Illegal Conditions What s the effect of an illegal condition OGH 84 Clodice serves as the director of the Lake Arthur Housing Authority Olide and Clodice enter into an act of sale for Olide39s estate Terre Puante for 100000 subject to the following proviso quotThis contract is conditioned on buyer39s seeing to it that seller is declared the low bidder on the city39s public housing construction projectquot Once the bids are in Clodice secretly opens them and finding that Olide39s is not in fact the lowest reduces his bid to 1 below that of the true low bidder When the bids are opened Olide is declared the low bidder and so gets the job Clodice then demands that Olide go through with the sale Olide refuses prompting Clodice to sue for specific performance What result would you predict Why See CC art 1769 OGH 85 Clodice serves as the director of the Lake Arthur Housing Authority Olide and Clodice enter into an act of sale for Olide39s estate Terre Puante for 100000 subject to following proviso quotTitle shall revest in seller in the event that buyer fails to assure that seller is declared the low bidder on the city39s public housing construction projectquot Once the bids are in Clodice does nothing she doesn39t even look at the bids to see if Olide39s is the lowest When the bids are opened someone other than Olide is declared the low bidder and so gets the job Olide then brings suit against Clodice seeking the dissolution of the sale His theory That the contractual obligation inasmuch as it was subject to an illegal condition was null What result would you predict Why See CC art 1769 cmt a 2 Impossible Conditions What s the effect of an impossible condition See CC art 1769 3 Potestative Conditions What s the effect of a potestative condition Recall the DeMary case ie the one that involved the sale 26 of the race horses Eontenot the buyer argued that the obligation between the seller DeMary and him was null What was his argument Did the court agree or disagree with that argument Why DeMary was decided under the Civil Code of 1870 Would the result be the same under the current legislation Why or why not See CC art 1770 1 1 OGH 86 Olide39s barn has just been damaged in a hailstorm Jean Sot promises to fix it tomorrow for free if I feel like it when I wake up Olide accepts the offer The next day Jean Sot having decided that he does not feel like it stays home Meanwhile Olide is waiting When it becomes clear to him that Jean Sot will not show Olide hires TiBoy to make the repairs Then Olide sues Jean Sot to recover the cost of the repairs What result would you predict Why See CC art 1770 1 1 OGH 87 Eva an elderly widow who has become scared to death to live alone has for sometime been looking for someone to move into the apartment above her garage hoping thereby to gain some measure of security And so she makes TiBoy Pascal s son this offer quotI39ll let you stay in my garage apartment for free if you ever decide you want toquot TiBoy it turns out has no need for the garage apartment he lives in an upscale Gueydan penthouse rentfree at Pascal s expense and in any event doesn t care for it it s small ugly and inconveniently located But then one morning TiBoy 7 he s not sure why 7 gets it into his head that he d like to take the garage apartment after all When he goes to Eva s place ready to move in he discovers that Eva rented the apartment out to Achille earlier that morning Outraged at this indignity TiBoy sues Eva for damages for breach of contract What result would you predict Why OGH 88 Clodice39s mobile home was destroyed in a hailstorm Pascal who has a garage apartment that s so small so dingy and so inconveniently located that no one would want to rent it calls her and makes this promise quotI39ll let you stay in my garage apartment for free But understand this I reserve the right to terminate our relationship for any reason at any timequot Clodice responds quotI accept I39ll move in tomorrowquot True to her word Clodice moves in the next day There she remains for six weeks at which time Pascal who has found another downon hisluck friend whom he wants to help out demands that she move out so that his other friend can move in He does so even though he knows she has no money and no other place to go And sure enough once she39s been turned out she ends up spending the night on the streets The next day she heads straight for the local legal aid office secures legal counsel and sues Pascal for breach of the lease contract He defends on the ground that the lease was null inasmuch as it was subject to a purely potestative condition What result would you predict Why See CC art 1770 1 2 amp the last 1 of comment f d Determination of Conditions How do the obligor and obligee of a conditional obligation determine whether the condition has or has not been fulfilled 27 See CC arts 17731774 amp 1772 1 The General Rules a Positive Conditions OGH 89 Pascal promises to give TiBoy a house if he Ti Boy marries Jolie by June 1 1997 Time goes by June 1 passes and TiBoy39s still not hitched What result Why See CC art 1773 1 1 OGH 90 Pascal promises to give TiBoy a house if he Ti Boy marries Jolie by June 1 1997 On May 1 1997 Jolie is killed in a tragic crawfishing accident What result Why See CC art 1773 1 3 What happens if there39s no deadline by which the event is to occur and it39s still possible that the event might occur See CC art 1773 1 2 b Negative Conditions OGH 91 Pascal promises to give TiBoy a house provided that he doesn39t marry Jolie before he TiBoy reaches the age of 25 TiBoy turned 25 yesterday and he s still single What result Why See CC art 1774 OGH 92 Pascal promises to give TiBoy a house provided that he doesn39t marry Jolie There s no date attached to the condition Will there ever come a time when this condition no longer hangs over TiBoy39s head Why or why not See CC art 1774 2 The Exception OGH 93 Olide and Clodice enter into an act of sale for Olide39s estate Terre Puante for 100000 subject to the proviso that quotbuyer obtain financing for the purchase within 30 daysquot A few days later Clodice having thought better of the deal decides she wants out And so she never sends in her loan application to the bank Not surprisingly then when the 30 days deadline passes Clodice still has not obtained financing When Olide learns what happened he sues Clodice for breach of contract What result would you predict Why See CC arts 1773 1772 1759 Recall Holmes Brick v REO What result did the court evidently believe it would have had to reach if it had classified the modality that affected the Phase 11 construction obligation as a condition Why Was that assumption correct Why or why not See CC arts 1773 1772 1759 e Effects of Conditions 1 Before the Conditional Event Occurs a Resolutory Condition Levasseur Precis 6566 b Suspensive Condition Levasseur Precis 6265 1 Effects Arising From the Imperfection of the Obligation a Obligee Can t Demand Performance b Obligee Can t Claim 28 Compensation c Obligee Can t Claim Prescription d Obligor Can Recover Performance NOTE We encounter here one of the few differences between the effects of suspensive conditions on the one hand and those of suspensive terms on the other 2 Effects Arising From the Fact that the Obligation is at Least Partly Formed Obligee Can Engage in Acts of Conservation An obligation subject to a suspensive condition we have said is at least partly in existence or to speak in more practical terms is considered to exist for some limited purposes What are the consequences of that fact OGH 940n December 1 2000 Pascal buys Olide s estate Terre Puante from Olide for 100000 At Olide s insistence the agreement which is evidenced by an act under private signature provides that the transfer shall not to be effective unless Olide finds an apartment in which to live in la grande ville ie Gueydan within the next six months Halfway through the sixth month period and before Olide has found an apartment Pascal learns i that Olide failed to file the act of sale into the public records and ii that Jean Sot has been squatting on part of the land for just shy of 30 years now Pascal wants to know whether at this time he can i file the act of sale into the public records himself andor ii file an action against Jean Sot to have him expelled from the land Why or why not See CC arts 1771 2442 amp 3462 2 After the Conditional Event Occurs a General Rule Read CC art 1775 Levasseur Precis 6667 1 Suspensive Conditions What does it mean to say that the fulfillment of a suspensive condition produces retroactive effects Saul Litvinoff Louisiana Civil Law Treatise Obligations in General 512 at 100 quotOnce the condition is fulfilled the contract is regarded as effective from that time it the contract was madequot Levasseur Precis 6869 OGH 95 Olide and Jean Sot enter into a contract of sale for Olide39s estate Terre Puante for 1000000 subject to the proviso that Jean Sot obtain financing within 30 days The act of sale is duly recorded During that 30day period Olide mortgages his estate to Clodice to secure a loan and Jean Sot sells the estate to Pascal Just before the end of the day Jean Sot39s loan application is approved What happens now In particular what becomes of Olide39s mortgage and Jean Sot39s sale Why 2 Resolutory Conditions What does it mean to say that the fulfillment of a resolutory 29 condition produces retroactive effects See Saul Litvinoff Louisiana Civil Law Treatise Obligations in General 512 at 101 quotupon its fulfillment the contract is regarded as never having been made and the parties return to their original positionsquot Levasseur Precis 6970 OGH 96 Pascal donates a house on Belle Terre to TiBoy subject to this proviso quotTitle will revest in me should donee predecease mequot The act of donation is duly recorded Time goes by During that time TiBoy mortgages the house to the bank to secure a loan Before the loan is paid off and while Pascal is still alive TiBoy dies What happens now In particular is the house still subject to the mortgage Why or why not b Exceptions Read Trahan Supp 3637 Litvinoff on limitations to the rule of retroactivity OGH 97 Olide sells his estate Terre Puante to Jean Sot for 100000 subject to the proviso that Olide may if he so chooses buy back the estate after 10 years in other words he retains a right of redemption which is a kind of resolutory condition The act of sale is not duly recorded During the next several years Jean Sot does three things with Terre Puante i having discovered several sguatters on the estate and concerned that if they re not kept at bay they may acquire a possessory interest therein he leases Terre Puante to TiBoy for a term of 10 years for a rent of 200 per month ii he collects keeps and spends the rent that TiBoy pays him under that lease and iii he mortgages Terre Puante to Cajun Bank to secure a loan Just over ten years after the date of the sale between Olide and Jean Sot Olide exercises his right of redemption with the result that the sale is resolved and ownership of Terre Puante reverts to Olide At that time Jean Sot s lease to TiBoy and mortgage to Cajun are still in place Assume that both the lease and the mortgage were recorded What effect does the resolution of the sale have upon i the lease and ii the mortgage iii Will Jean Sot now be required to refund to Olide the rents civil fruits of the estate per CC art 551 that he collected during the past ten years Why See CC art 1775 Levasseur Precis 7071
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