Traditions civil code

The Civil Code

Book 1: of Persons
Contains articles 24-399
Revised Statute 9 all of it pertains to something in the Civil Code
In this book, keep an eye on notions of personality & the rights of natural persons

Title 1: Natural Juridical Persons

24 Two kinds of persons natural and juridical

From this point forward, the Code deals almost exclusively with natural persons; juridical persons are
handled in the Revised Statutes. (Exception Law of Sale and Professional Sellers)

Personality:

Natural Persons

25 Natural Personality commences at live birth and ends at death

o At birth, a person is immediately invested with rights
26 Unborn child is considered to have natural personality for whatever relates to its interests
from conception
o If the child is born dead, it is considered to never have existed, unless an action is
brought for its wrongful death.

Juridical Persons (Legal Entities)

RS 9:121 et seq. they become persons upon incorporation

RS 9:125 an embryo is a juridical person; becomes a natural person once its inside the
mothers womb

The End of Personality:

Natural Persons

25 Death ends personality; there are two kinds (RS: 9111) natural death and pulling the plug
30 If absent for five years without notice, thats considered death and end of personality.

Juridical Persons

Change in identity of partners or dissolving of corporation ends personality.

Consequences of Personality:

27 Upon birth a natural person enjoys general legal capacity to have rights and duties.
o Difference between personality and capacity:
 Personality - as a person, one has rights
Capacity - ability to exercise rights
28 A natural person of age of majority has capacity to make all sorts of juridical acts
o capacity means they have rights, which means they must have personality
o ex: 1918 all persons have capacity to contract

Rights attached to Personality: (Personal rights)

Rights related to the human body and physical integrity

o 2315 if affected, right to seek damages
Civil Rights - political rights, freedom of religion, right to vote, right to name.
o these rights are out of commerce they cannot be a part of a transaction.
Personal rights out of commerce cannot be exercised by a third party
o 198 right to establish paternity only belongs to that man, no one else can exercise it
o 101 Divorce only the husband and wife can exercise this right

Natural differences between persons:

A - Gender

Male v. female distinctions in the code in terms of their rights in the code. Men and women do
have different rights under the code.
La. constitution leaves room for reasonable discrimination between the two.
184 Maternity may be established by proof of evidence that child was born of a particular
woan
185 Presumption of Paternity of husband husband of the mother is presumes to be the
father. This can be disproved if necessary.
216 (Tradition) Parental Authority The child is under the authority of the father and the
mother. When the two parents differ, the fathers authority prevails.

B - Age

18 is the age of majority the dividing line between minors and adults.
The presumption of minority or majority is not absolute a 16 y.o. may have been emancipated,
in which case he is of the age of majority.
365 Emancipation Three kinds of Emancipation:
1. Judicial (366) ordered by court for a good cause
2. Marriage (367) if 16 y.o. gets married
3. Authentic Act done by the parents (368)

C - Mental Health

People who are declared mentally unfit are called interdicts.

395 Interdiction and its effect on juridical acts
o no effect until interdiction occurs
o when it does, no capacity to make juridical acts exists, only the curator can.

D - Legitimate & Illegitimate Children

 215-245 There is no formal statement as to what a legitimate child and illegitimate child would
be.
186, et. seq. Legitimate Child
o One born or conceived of a marriage; during or shortly thereafter
o Its possible for a child to have two legitimate fathers:
If a child was conceived in one marriage, the mom gets divorced, the
mom gets remarried and hes born during that marriage. Its a quick
turnaround, but hey, thats life.
196 Acknowledgement of an illegitimate child
o a man may acknowledge a child not of another
o the acknowledgement creates a presumption only on behalf of the child
197 The childs action to prove paternity
o A child can institute an action to prove paternity even if he is presumed to be the child
of another.
198 Fathers action to establish paternity
o Must be done within one year of the day of birth or one year of the day he finds out hes
the father.
212-214 - Adult Adoption
o No judicial approval required

E - Children Under/Not Under Parental Authority:

The child remains under parental authority as long as he lives with the parents
Parental Authority creates rights and duties for parents and children.
Duties of Children:
o 215 They owe their parents respect and honor
o 217 When under parental authority, the child is bound to obey.
Duties of parents:
o 221 Father is the administrator of the childrens estate; mother will do it if the father
cannot
Tutorship:
o Dealt with because of concern for minor children
o Located in Code articles and the Childrens Code
o Places children under the care of an adult
o 247 4 kinds of tutorship:
1. By nature
2. By will
3. By effect of law
4. By appointment

Tutorship by nature & will (the most common)

Tutorship by nature

Created by a dissolution of marriage

Upon dissolution, tutorship by nature begins
250 From death of either parent, tutorship belongs of right to the surviving parent
If a child is illegitimate
 o 256 The mother is the tutor of the child not recognized by the father

Tutorship by will

257 Right of appointing a tutor belongs to the parent dying last

336 The role of a tutor is to take care of the affairs of the minor child
Patrimony all of the assets a child accrues throughout his childhood; the sum total
of a persons assets and liabilities
o The tutor is in charge of administering the childs patrimony
o Acts of disposition and alienation are both under administration, but the
court needs to approve those two before the tutor does them
339 The courts will supervise the tutor if a contract was entered into with the
minor
354 The tutorship will continue past 18 y.o. for mentally retarded children
(whether interdicted or not)
273 Tutors must have an undertutor; like a vice-president

Curatorship

359, et seq. Curatorship is tied to interdiction

392 Court shall appoint to represent the interdict in juridical acts

F Domicile

The institution that enables people to contact each other

Every person has a patrimony and a domicile
38-46
o 38 Domicile is the place of habitual residence
o 39 May reside in many places, only one domicile
if no habitual domicile, the person whose rights are being affected may choose
o 40 spouses have either common or separate domicile
o 41 childs domicile is the parents domicile.
Domicile is important for property

Title 1: Book 4: e
In General

86 Marriage is a legal relationship; a contract subject to special rules

Terms of the marriage contract are decided by law, not by the man and woman involved.
87 Requirements for a marriage contract
o Absence of legal impediment (not already married, familial, or same sex)
o Marriage ceremony
Children under 18, if emancipated, can marry by a judge.
Medical certificate no longer required for marriage.

Nullity in Marriage Absolute and Relative

Relative Nullity
 Not too serious of a breach of contract
Brought by error or distress
If the nullity is relative, only one party can claim it
97 Relatively null marriage has civil effects until declared null
o The nullity takes effect when the court says its null
A child conceived during a marriage and born after declaration of nullity is still considered to be
a child of the marriage

Absolute Nullity

When society requires a marriage to end

Like same sex or familial marriage a violation of public order
Brought by XXXX
96 The Civil Effects of absolutely null marriage
o In favor of party who contracted in good faith and remains in good faith
o (Good faith is a savior in the civil code)

Effects of Marriage

Rights and duties are created as a result of marriage.

Law imposes the duties and sanctions the failure to comply.
98 - Married people owe each other fidelity, support and assistance
99 Spouses mutually assume direction of the family
100 Changing of the last name is optional (changed in 1987 because of societal changes)
Negative effect - There are legal impediments to a marriage spouses cannot sue each other,
with a few exceptions (Divorce)
o 101 Termination of Marriage upon death, divorce or judicial declaration

Matrimonial Regime Contracts in Marriage

2325-2376 System of principles and rules governing ownership and management of the
property of married persons
2327 Legal Regime
o After marriage, whatever the parties require falls in to community of the family
o Very detailed and comprehensive system
2328 Contractual Regime (Matrimonial Agreement)
o A contract that can separate property and modify or eliminate the legal regime
o Spouses are free to enter into a contractual regime

Dissolution of Marriage

101 Marriage terminates upon:

o death of either spouse
o divorce
o Judicial nullity
This says there was never a marriage, except when one spouse was in good faith
102-105 Divorce
o 102 Must be separate and apart for 180 days; if they have kids, 365 days.
 o 159 Divorce brings an end to the marriage
Thereby bringing an end to the legal effects of the marriage
o 111-112 The obligation of support remains via alimony in these two articles
If there are children, alimony becomes more important

Final Random Notes about Marriage

Covenant Marriage

RS 9:272 Spouses take an oath to remain in marriage forever, not to divorce; a reversion back
to the old idea of marriage
Covenant Marriage can end in separation
o BUT only in respect to the assets, the legal duties still remain.

Common Law Marriage (NOT IN THE CIVIL CODE)

Not licensed
No ceremony
No public record
What makes it a common law marriage is cohabitation and intent to be husband and wife
NOT recognized in La.
There is no common law divorce, it just ends.

Book 2: Things and the Different Modifications of Ownership

This book contains articles 448-818; it has been shortened a bunch over time.

I - Things
The division of things

448 Things are:

o Public, common, or private
o Corporeal or incorporeal
o Movable or immovable

A - Common, Public, and Private Things

Common Things

449 Common things may not be owned by anyone; things such as the air and the high seas;
they may be freely used by everyone because they cannot be owned

Public Things

450 Public things are owned by the state

o Running waters, floors of bodies of water, seashores, etc.
 o Courts have added many things into the public category (Lake Ponchartrain)
Ownership of public things cannot be given up by the state for the benefit of private persons
Public things cannot be seized by creditors violation of U.S. Constitution
Public things must be distinguished from the private things a state can own

Private Things

453 Private things can be owned by indivduals, other private persons (juridical persons), and
by the state

B - Corporeal and Incorporeal Things

Corporeals

461 Have a body, animate or inanimate, can be felt and touched

Incorporeals

461 Without a body, but can bear upon corporeal things

o Like a right of succession its incorporeal until the succession is opened to inherit
corporeal things

C - Movables and Immovables

This distinction leads to many legal effects. For example, immovables must be transferred I writing,
while movables can be transferred by consent only.

Immovables

462 Tracts of land and its component parts (463)

o The only existing immovables today
463 Component parts (examples)
o Buildings, other constructions permanently attached to the ground, standing timber,
unharvested crops/ungathered fruit
o 474 Unharvested crops and ungathered fruits are movables by anticipation when
owned by someone other than the landowner
464 Buildings and standing timber are separate immovables when they belong to a person
other than the owner of the tract of land
465-466
o Things constructed onto a tract of land that are an integral part of it become component
parts
o Things attached to a building that cant be removed easily are component parts of the
building
467 Owner can declare machinery and equipment as immovables
o like farm machinery; the opposite can be done, too (468 immobilization)

Movables (471-475)

Most things today are movables

 Movables are both corporeal and incorporeal

475 All things the law doesnt consider immovables are movables
471 Corporeal movables can be moved from one place to another
472 Building materials
o If being moved from one building to another movables
o If being used as repair on the same building immovables

II Ownership

Three rights of an owner:

1. Abusus
Right to dispose; transfer ownership
2. Fructus
Right to enjoy the fruits
3. Usus
Right to make use of the thing

Each one of the three rights can be the subject of a transaction. You can sell the fructus and keep the
other two, etc.

477 Ownership

A right that confers direct, immediate and exclusive authority over a thing
The owner may use, enjoy and dispose (abusus) under conditions established by law.
The owner has a real right a right on the thing, as opposed to a personal right a right
against another person.

481 Ownership & Possession

Ownership and possession are distinct from one another.

3421 Possession

The detention or enjoyment of a corporeal thing, movable or immovable, that one holds or
exercises by himself

3412 Occupancy

The taking of possession of a corporeal movable that does not belong to anyone
The occupant acquires possession at the moment of possession

The Accesory follows the Principle so the following things are acquired by an owner through
accession

483 Ownership of Fruits by Accession

 In absence of the rights of other persons, the owner acquires ownership of the natural and civil
fruits of a thing
551 Kinds of Fruits
o Fruits are things produced by or derived from another thing, without diminution of its
substance
o Two types:
Natural products of the earth or animals
Civil rentals, interest, corporate distributions
The owner of a thing owns the fruits by succession

486 Possessors right to fruits

Possessor in good faith acquires ownership of fruits he has gathered.

A contrario a possessor in bad faith does not acquire ownership

488 Products

They belong to the owner; they ARE NOT fruits because they results in the diminution of the
substance

Artificial v. Natural Accession

A Artificial Accession

491 Ownership of a tract of land brings everything above and below it with it, unless provided
otherwise

493 Improvements

Improvements on the land of another with the owners consent belong to the person who made
the improvements
A contrario Improvements w/o owners consent belong to the owner
Principle of equity rules throughout
Unjust enrichment prevented

496 Improvements by a good-faith possessor

If in good faith, owner is bound to keep that at his option and must pay the possessor for the
costs incurred

497 Improvements made by a bad-faith possessor

Owner can demand the removal and recovery for damages

B Natural Accession

499 Alluvion and Dereliction

Owner of land situated at the end of the bank owns whatever builds up through accretion or
appears through dereliction
Movables Principal v. Accessory Things

508 Things principal and accessory

Principal is permanently attached, accessory is part of the principal

509-511 Gives instances where two movables are put together

509 bulkier/more valuable movable of two items is considered the principal

510 When two are combined, the whole belongs to the owner of the principal
511 If you use anothers materials to create a new thing, the thing belongs to the owner of the
materials; if workmanship greatly exceeds the value of the materials, the thing belongs to the
creator
512 If the thing is made in bad faith, the court may award the ownership of materials

Transfer of Ownership

A Transfer of Immovables

517 Voluntary transfer of ownership of an immovable

Voluntarily transferred by a contract between owners and transferee

Transfer takes place between the parties by effect of agreement
o Not effective against 3rd parties until contract filed for registry (promulgation)

1839 Transfer of Immovable property

Must be made by an authentic act or private signature

Must be in writing
o In a contract of sale, the parties are bound at the time the act is made

B Transfer of Movables (518-525)

518 Ownership of a movable is voluntarily done by a contract between the owner and the transferee

The transfer takes place between the parties upon the agreement
o Among 3rd parties upon possession (*not registry*)

2456 Movables

Ownership is transferred between parties when agreement upon thing and price takes place;
payment and delivery not necessary to transfer ownership
An oral agreement will suffice here.

521 Transfer of Lost or Stolen Things

One who has possession of a lost or stolen thing cannot transfer ownership to another
A thing is lost or stolen when one has taken possession without the consent of the owner.
A thing taken as a result of fraud is not stolen
o Ex: buying stolen goods in good faith those people are protected
Protection of Ownership

526 Owner is entitled to recover thing from anyone who possesses or detains it without right

527-528 Bad faith/good faith possessor entitled to recover

The owners action to recover a thing:

Movable Called a pitatory action

Immovable Called a revendicatory action

III - Personal Servitudes

Kinds of Servitudes

1. Personal
2. Predial

Personal Servitude

Charge on a thing for the benefit of a person

Three kinds of personal servitude:
1. Usufruct (most common)
2. Habitation
3. Rights of Use

Predial Servitude

Charge on servient estate for the benefit of a dominant estate. The two estates must have
different owners.

Personal Servitudes

A Usufruct

Gives the usus and fructus to another the person is called the usufructuary
The owner is called the naked owner

535 Usufruct

It is a real right of limited duration on the property of another

The nature of the right varies with the nature of the thing subject to it as a consumable or
nonconsumable.
o Usufruct over consumables is rare
o Usufruct over nonconsumables is most common over immovables

Loan of Use v. Usufruct over a consumable thing

 Usufruct is a real right, the borrower in a loan for use only has a personal right against the
lender

538 Usufruct of a Consumable Thing

Usufructuary becomes the owner of the consumable thing

Upon termination, usufructuary is bound to pay the owner the value things had or deliver to the
owner things of the same quantity and quality

541 Divisibility of Usufruct

A usufruct is an entity, but the right to a usufruct can be divided

Usufruct may be conferred on several persons in divided or undivided shares
o Ex: Tract of land w/ 3 Usufructuaries:
Divided: three different shares
Undivided: all 3 have the same right over the land

544 How to create a Usufruct

May be established by a juridical act or operation of law (inter vivos or mortis causa)
For an immovable, it must be in writing
There are three ways to do it:
1. Juridical Act inter vivos -
2. Juridical Act mortis causa -
} Conventional

3. Operation of Law Legal

547 When a usufruct is several, the termination of one party falls to the others, unless the grantor says
otherwise

549 Capacity to receive usufruct; in favor of natural person/legal entity.

Obligations of Usufructuary

A usufructuary is required to give due care to administration of the thing of another.

570- Inventory

Usufructuary must take inventory of the property subject to the usufruct does this because
when the usufruct ends he will owe changes to the owner.

571 Security

Usufructuary gives security that he will properly administer all obligations

Security can be waived by the parties (like a child by a parent)

577-585 Repairs by the usufructuary

577 Usufructuary responsible for every day maintenance

578 Owner is liable for extraordinary repairs unless caused by usufructuary
586-593 Usufructuary Liability

Liable for Mismanagement and for debts acquired through use and fruits

586 Liability for debts inter vivos

o Usufructuary not liable for personal debts of the grantor
o When property subject to usufruct is burdened with a mortgage, pledge or privilege, the
usufructuary can discharge debts and claim reimbursement for money he spent.
587 Liability for debts mortis causa
o Position of the usufructuary depends on whether the usufrcut is universal or under
particular title
o Usufruct of an entire succession is universal
Of a fraction is also universal
o Usufruct of individually determined things is under particular title
588 Liability under particular title
o not liable for debts of succession
589 Liability under universal title
o Not personally liable, but the property may be seized

Termination of Usufruct

607-629 Methods of terminating a Usufruct

607 Death of Usufructuary

o Most common way of terminating a usufruct
o The death of the owner does not terminate it; a usufruct is a personal right, not
heritable
608 Dissolution of legal entity
o Either dissolution of the entity terminates it, or a 30-year term terminates it
610 Usufruct for term or under condition
o Terminates upon expiration of term or happening of condition
o Suspensive condition would begin a usufruct if it occurs
o Resolutory condition would end a usufruct if it occurs
613 Loss of consumable thing
o usufruct terminates when the property subject to it is destroyed
621 Prescription of non-use
o If usufructuary or person using right doesnt use it for ten years, its gone.
622 Confusion
o When usufruct and naked owner are the same person, usufruct ends
o When usufruct ends, the rights under it fall to naked owner, this terminates the usufruct
o A naked owner cannot be the usufructuary of his own property
o 1903 Confusion
when the qualities of obligee and obligor are united in the same person, the
obligation is extinguished by confusion.
626 Renunciation
o usufruct can renunciate his right; this is a unilateral juridical act

Consequences of Termination of Usufruct

628 Consequences of termination of a nonconsumable

Upon termination for a cause other than total destruction, full ownership is restored
If usufructuary damages it, he is entitled to repay owner for damages

629 Consequences of termination of a consumable

Usufructuary is bound to deliver to owner the same quantity and quality of things or value they
had at the beginning of the usufruct.

B - 2891 - Loan for Use (Commodatum)

Gratuitous contract by which a person lends to another a thing for him to use and return.
o Creates a personal relationship between the borrower and the lender.
o Different from a usufruct.
o The obligations of the borrower are similar to the usufructuary

C - 2904 Loan for Consumption (Mutuum)

Contract by which the lender delivers things to borrower, who binds himself to return to lender
an equal amount of the same things.

Real Rights to Property other than Usufruct

Habitation

630 - Non transferrable right of a person to dwell in the house of another

o Cannot be given to a legal entity
634 Extent of Right of Habitation
o Entitled to exclusive use of residence (part of it given)
o Can receive friends, family, boarders
637 Nontransferable
o Habitation cannot be transferred
638 Duration of Habitation
o Terminates upon death
o Not inheritable (a real right)

Rights of Use

639 Right of Use

o confers in favor of person a specified use of an estate that is less than the full
enjoyment.
641 Persons who can have use
o Natural person or a legal entity
643-644 Transferable and Inheritable
o Its both of them!
 Usufruct Right of Habitation Right of Use

Transferable Transferable Transferable

Inheritable Inheritable Inheritable

IV Predial Servitude

646 Definition of Predial Servitude

Charge on a servient estate for benefit of dominant estate.

The two estates must have different owners.

648 Contiguity & Proximity

Contiguity & Proximity are not necessary

Rare for it to occur where neither are not present, but they are still not necessary

649 Nature of it; Incorporeal

Predial Servitude is an incorporeal immovable

652 Indivisibility of servitude

Indivisible either it is in service or it is not

The right is to the whole property, but it can have multiple beneficiaries

653 Advantages may be divided, if they can be.

654 Kinds of Predial Servitudes

Three kinds:
1. Natural arising from the natural situation of the estates
2. Legal imposed by law; the owner has no say
3. Conventional imposed by contract

A Natural Predial Servitude

655-658

655 Natural Drainage

o Estate below receives waters from estate above unless an act of man has created the
flow
o Why its always better to live up high.
656 Obligations of Owners under Natural Predial Servitude
o Owner of servient estate cannot do anything to prevent flow of water
o Owner of the dominant estate cannot do anything to make it more burdensome
657 Owner of an estate bordering running water
 o may use water for watering his estate or for other purposes on his estate

B Legal Predial Servitudes

659-696

659 Legal Predial Servitude

o Limitations on ownership established by law for the benefit of general public or
particular persons
There are many kinds of Legal Servitudesm look at the ones that follow for examples.
664 Raindrop from roof
o landowner is bound to fix his roof so that rainwater does not fall on neighbors ground
667 Limitations on use of property
o Owner can do whatever he wants as long as it doesnt damage neighbors property or
interfere with his enjoyment of it
o Damages would be owed to neighbor
668 Inconvenience to neighbor
o Inconveniences are OK, people cannot sue for them
o Inconveniences are not real damage to property.
689-686 Right of Passage
o Owner of estate has right of passage through the servient estate.

C Conventional Predial Servitudes

708- Establishment of predial servitude

Must put t in writing and record it in order for it to become a right upon the land.

D Extinction of Predial Servitudes

751 Destruction of estate

Servitude ends when dominant or servient estate is destroyed

768 Confusion

When acquired by the same person, predial servitude is extinct.

753 Prescription

Non-use for ten years by dominant estate ends predial servitude.

755 Suspension of prescription

Prescription can be suspended if owner is prevented from use by an obstacle can be

suspended up to 10 years.

Because predial servitude is a real right, it can be abandoned

770 Abandonment of servient estate

 When the servient estate abandoned by unilateral juridical act, it creates confusion and the
predial servitude is extinguished because the owner of the dominant estate takes over.

Book 3: Obligations (Bra, this one is a killa!)

Juridical Acts v. Juridical Facts

Juridical Acts

An expression of will; has a legal effect.

Meant to create rights and obligations.

Juridical Facts

An event outside the control of the will which, when it happens, creates rights or obligations.
Fats of Life
Ex: death, birth, etc.

I - Types of Juridical Acts (START FLOW CHART HERE)

Unilateral Juridical Acts v. Bilateral Juridical Acts

(A contract is a bilateral J.A., even though it may be called unilateral)

Unilateral Juridical Acts

Involve the will of one person and one person only

Ex: 195 - Acknowledgement of a child only the man is acknowledging the child, not the other
way around.

Bilateral Juridical Acts

The meeting of two minds, wills expressed from both sides (so at least two wills)
Ex: Contracts in all contracts, there are two wills.

Gratuitous v. Onerous Juridical Acts (Under Bilateral)

Gratuitous

1910 Like a donation; one party receives something.

No warranties in gratuitous obligations if youre not paying for it, dont complain.
Ex: A donation

Onerous

1909 A burned is imposed upon both parties.

Ex: A contract of Sale

Aleatory v. Commutative (Under Onerous)

Aleatory

1912 You pay something in the hope that you will hit the jackpot; you pay in the hope that you
will receive more in return
Ex: Gambling

Commutative

1911 Each party expects to receive the equivalent of what they put in
Ex: A contract of Sale

Inter Vivos v. Mortis Causa (General Category)

Inter Vivos

Between living persons.

Mortis Causa

As a result of a death.

Patrimonial v. Extrapatrimonial Juridical Acts

Patrimonial

Involves assests/liabilites, things of monetary value that are attached to a person

Ex: Sale Its Onerous, Commutative, Patrimonial
Creditors have access to patrimonial rights

Extrapatrimonial

A personal juridical act, doesnt involve money involves personal rights that you cannot sell
(remember from the beginning?)
Ex: Marriage, Divorce
Creditors do not have access to extrapatrimonial rights.

Consensual v. Solemn/Formal v. Real Juridical Acts (General Category Manner in which act is
binding)

Consensual

Validity of the act requires consent only

Ex: the contract of sale of a movable or a lease

Solemn/Formal

In addition to consent (the will of the parties), a formality is required

Ex: Marriage Consent and ceremony required; Compromise shall be made in writing

Real
 Res thing; requires the actual delivery of a thing in order to create the contract.
Ex: 1543 a corporeal gift is consummated upon the delivery of the thing, you cant contract to
give a gift without first giving it.
2926 Deposit a contract by which a depositor delivers the ting to be deposited.

Intuitu Personae v. Nonintuitu Personae (General Category With respect to identity)

Intuitu Personae

A Juridical Act that is specifically due to a particular person.

Ex: Marriage you only wanna marry a certain person, a substitute wouldnt work!
Ex: 2989 - Mandate a contract by which a person confers upon another the power to transact
affairs on their behalf.
In General, Gratuitous contracts are also intuitu personae contracts
o Gratuitous for donee
o Intuitu personae for donor because hes donating to a specific person

Nonintuitu personae

Contract without particular focus on the persons

The identity of the parties is not important
Ex: Sale (sometimes) the seller just wants to sell his stuff, the buyer just wants to buy a thing,
doesnt matter who he gets it from (usually)
A patrimonial, commutative, onerous contract is probably nonintuitu personae

Disposition v. Administration v. Conservation (Juridical Acts With respect to capacity)

Can be gratuitous or onerous

Usually patrimonial

Disposition

Also called abusus; the disposition of a thing belonging to the owner

Only the owner or the mandatary can dispose a thing
Ex: Sale or Mortgage can only be done by those two

Administration

Usus & Fructus; ownership and possession grant this right (by accession?)

Conservation

Acts to protect or secure a patrimonial right

Usually a secondary right, you need a principle act to have an act of conservation
Ex: A mortgage (secondary) protects a loan (principle)

Principle v. Accessory (Juridical Acts Bearing on Rank)

Principle Juridical Act

 Self-sufficient, self-sustaining juridical act (lease, loan)

Accesory Juridical Act

Backs up or follows the principle (mortgage on a loan, collateral, down payment on a lease)

General Notes

All juridical acts are not contracts contracts require the will of two parties, juridical acts do not
All contracts are juridical acts.
Unilateral contracts and Unilateral juridical acts
o Unilateral K two wills, one obligation. (like a donation)
o Unilateral J.A. One will.
o Bilateral K Two wills, two obligations.
Common law unilateral K refers to the formation one party offers, the other performs.
Civil law unilateral K refers to the obligations created.

II Formation of Juridical Acts

The essential requirments:

A. Consent
B. Capacity
C. Object
D. Cause
E. (Form)

A Consent

1927 Established through offer and acceptance

Must be communicated, can be manifested in different ways:
o Expressly in writing
o Orally spoken
o Implicitly action or inaction under circumstances that indicate consent
1942 Silence can be consent under special circumstances when offeror can
reasonably believe
Consent must:
a. Exist
b. Be communicated
c. Be sound
Soundness of Consent:
o Consent can be vitiated by:
Error would a reasonable man have made the error (to the object, the subject,
or the cause)
Error to the object when you buy one thing, but get something else
Error to the person (subject) mistake of who youre contracting with;
may be grounds for nullity in a gratuitous K
Fraud would reasonable man be defrauded?
Bad Fraud fraud that is hard to uncover
 Good Fraud salesmans pitch (puffery)
Duress Injury threatened against person or someone close to them
Duress is not violence violence is duress + undue influence

B Capacity

The parties must be of age (special circumstances allow underage)

An interdict does not have capacity, his tutor or curator does.

C Object (Subject Matter)

Must be lawful, possible and determinable.

Can be corporeal or incorporeal
The reasonable man cannot be held to an impossible object
The impossible standard is applied in general, not to a specific party (is it possible for someone
to do X, not is it possible for me to do X)

D Cause

The reason why a party obliges himself

o Ex a seller enters into a contract of sale because he wants the particular price
The cause must be lawful and in good faith
o Blackmail and kickbacks arent cool.
1759 Good Faith good faith shall govern the conduct of the obligor and obligee in whatever
pertains to the obligation.

E Form(?)

Not required in most acts for movables

Is required in acts for immovables
Formal contracts

Nullity When an act fails to meet the requirements

Two types:
a. Relative Nullity
b. Absolute Nullity

Absolute Nullity (2030)

More drastic failure; a gross failure

Means that the juridical act is lacking a requirement that is important to the public order
Absolute nullity occurs for a failure of object or cause of a juridical act the immorality or
illegality of either.

Relative Nullity (2031)

Null only between the parties involved

 Only the parties have an interest in keeping JA alive or in declaring it null not a violation of
public order
Arises from failure in consent or capacity

Examples of nullity in the Civil Code

94 Marriage is absolutely null when contracted without a ceremony, by procuration, or in

violation of an impediment.
95 Marriage is relatively null when the consent of one of the parties was not freely given.
1478 Donation is null (probably relatively) upon prof that it was done under fraud or duress
(because thats a failure of consent)

Reasons for distinguishing between Absolute and Relative Nullity

Consequences of Nullity
o Absolute Nullity
JA is null from the beginning; as soon as the violation takes place, the act is null
The Judge does not declare absolute nullity, only acknowledges the violation
No discretion is left to the court
2030 absolute nullity may be invoked by any person with an interest in seeing
the JA declared null, or by the court.
Prescription does not cure the violation a requirement of a JA
Prescription generally applies to all acts, but if JA is absolutely null, the right of
action never prescribes (2032)
o Relative Nullity
Rules will be the opposite of absolute nullity
Must be declared by the court
Can be removed through ratification or confirmation
Ratification declaration of consent given by someone on behalf of
another (like a tutor for a JA with a kid)
Confirmation declaration whereby a person cures the relative nullity
of an obligation (A kid who turns 18 confirming a K he made as a minor)
Prescription of relatively null acts is 5 years

Effects of Nullity
o Retroactivity
The JA never had any effect; the past is erased, wiped out, deemed never to
have existed
The parties are restored to their situation before the K existed
If its impossible or impractical to erase the past, damages may be
awarded to help.
o Examples of non-retroactive nullities:
Loan for consumption cant return the thing consumed
Putative Marriage produces effects for the party who contracted in good faith
as long as they remain in good faith.

IV Obligations
 A type of juridical act it is a bond, the result of which creates effects of law
Gaius and Justinian say the purpose is to bind someone to something (Ob something,
Ligare to bind)

1756 Obligations

A legal relationship whereby obligor is bound to render performance in faovr of an obligee

Performance may be giving doing, or not doing.

A - Natural and Civil Obligations

Natural Obligations (rare)

1760 - Arises from circumstances in which the law implies a particular moral duty to render
performance
Finds its source in mans conscience and good morals.
They are a patrimonial right and can be inherited.
1762 Examples of situations giving rise to a natural obligation:
o When civil obligation has been extinguished by prescription or discharged in bankruptcy.
Effects of Natural Obligations
1. Cannot become the object of a lawsuit of the obligee; legally, the person owes nothing
but the moral duty
2. Whatever has been freely performed in compliance w/natural obligation may not be
reclaimed performance is binding
Examples of natural obligations:
o When obligation is incurred by a person who lacks capacity
o When theres an invalid will and the successors are bound by moral duty to carry out
testators will.

Civil Obligations (more common)

Invest in each party a right of action against the other

1756 General principles of Obligations
o Obligor is bound to render performance in favor of obligee
1758 General Effects of Civil Obligations
o Governs all civil obligations
1759 All Civil obligations must be carried out according to good faith

B - Broad Categories of Civil Obligations

1 - Classification based on right of enforcement or the duty created

1. Strictly Personal Obligations

2. Heritable Obligation
3. Real Obligations

1766 - Strictly Personal

Enforced only by oblige or only against obligor

 o Ex: a family hires a portrait painter only he can perform for the family.
o Ex: handicapped person who needs taxi to get to school only obligee benefits
All obligations to perform personal services are strictly personal on the obligor
Performance intended for the exclusive benefit of the oblige are strictly personal on the obligee
All obligations that involve some special skill are strictly personal on obligor.
Marriage is strictly personal on both parties.
Strictly personal obligations cannot be inherited or imposed upon others.
Specific performance of a strictly personal right is impossible.

1765 Heritable Obligations

When the performance may be enforced by a successor of obligee or against the successor of
the obligor
Every obligation is presumes to be heritable, except when contrary results from terms or
otherwise
o This is because it assumed that all obligations have a patrimonial value.
o When an obligation has no monetary value, it is strictly personal
Example of a heritable obligation: Buyer/Seller object of obligation of Buyer can be inherited,
transferred, etc. (whatever he buys)

1763-1764 Real Obligations

Bear directly on a thing; a duty correlative and incidental to a real right.

Must be in writing in order to transfer.
Must be recorded in order to be opposed to third parties.
Can be unilaterally abandoned (since real rights can be)
Specific performance of a real right is possible.

2 Classification based on the object of obligations:

1. Giving to give (Basically, there are obligations to give, to do or not

2. Doing to do to do.)
3. Not doing not to do

a - Obligations to give

To transfer or deliver something (possession or ownership) into the hands of the obligee
A donation an obligation to transfer ownership of something or to transfer a benefit of
services.
In a contract of sale, there are two obligations to give:
o Buyer gives price
o Seller gives thing
Obligation to give can take the form of a special contract like a sale, lease, or donation..
The something they are giving is the object to give
o Sale creates two obligations to give; each obligation to give has its object
There is a difference between object of obligation and the object given.
b Obligations to do

Require the performance of something

Distinction between to do and to give is important because of the right to performance
o To give
Specific performance is easy to get
Can be specifically enforce
o Not to do
Can be enforced, but maybe not specifically
o To do
Specific performance usually denied because we dont want to compel someone
to do something
Whether the obligee can demand performance depends upon how you classify the obligation
The obligee can create obligations to do with obligations to give to enforce it
o Like a personal obligation backed up by a real obligation, allows obligee to demand
performance
o Combining the two obligations allows you to do it
o Ex: A producer wants a musician to make albums. He can make a contract that pays him
a certain salary, but if he doesnt make obligations, he has to pay back part of his salary
to give backs up to do.

c Classifications based on rules of evidence

1. Obligations of result
2. Obligations of means

i Obligations of Result

Performance is expected to achieve result. If the result is not achieved, a right of action can
follow it.
The Burden of Proof for breach is usually pretty easy.

ii - Obligation of Means

Manner of performance matters while the result may be uncertain. Do your best.
The burden of proof is usually much tougher like medical malpractice.

Overall Example of DNA

98 Marriage (DNA)

Bilateral
Onerous
Personal
Heritable

Keep in mind Always reason from the general to the particular. Beware of the bait! Focus on the broad
perspective, then move down to the particular right.
 Ex: Buyer/Seller: Bilateral JA Bilateral K - - Obligation of warranty.

C Features or Modalities of Obligations

1. Terms
2. Conditions

1 Term

An event that will happen in the course of time.

It may happen at a certain time (certain term).
Or, it may happen at an uncertain time. (uncertain term).

1778 Term for Performance

Period of time that is either certain or uncertain.

o In a certain term, time is fixed; in uncertain term, unfixed.
The most common uncertain term is death.
Ex: A hurricane hitting Louisiana uncertain term. What if its for 3 years? 15 years? This shows
that the same event may be more certain because of the period of time given.
Uncertain terms are difficult to distinguish from conditions.

Two kinds of terms:

A. Suspensive
A term that suspends performance of an existing obligation
B. Extinctive
The occurrence of the term extinguishes the obligation to perform.

Sources of terms:

Legislation prescriptive period

Juridical Acts mostly contracts
Judicial Term the court can tell creditor to give obligor additional time to perform Term
of Grace

Effects of terms:

Suspensive Term:

1. Party cannot be compelled to perform prior to the occurrence of the term

2. Prescriptive period does not begin until performance
3. Nothing prevents performance ahead of the term the party can waive the benefit of the term
4. 1781 One obligor protected by the term has performed duty voluntarily, he cannot recover
performance (change his mind)
you cant pay a bill early and ask for it back!
5. 1785 Upon occurrence of the term, obligor must perform according to the will of the parties.
If he defaults, he owes moratory damages
 o They are damages for failing to pay on time, added on to the payment due
as performance

Extinctive Term:

1. Extinguishes existing performance and obligation

2 Conditions (1767-1776)

1767 A conditional obligation is one dependant on an uncertain event (a term is a certain

event)
While terms affect performance of an existing obligation, conditions affect the whole
obligation itself.

A - Types of Conditions:

1. Suspensive
2. Resolutory

a - Suspensive Conditions

Obligation is not enforced until uncertain event occurs

Condition suspends existence of obligation

b - Resolutory Condition

Occurrence brings an end to the obligation itself.

Has a retroactive effect.

Casual, Potestative, Purely Potestaive Conditions

Casual Conditions outside the power of the parties; nature or 3rd parties bring about an
event.
Potestative Conditions within the parties power to bring about condition.
Purely Potestative Condition exclusively in the control of obligor.
o Today called a whimsical obligation
o Makes an obligation null

Resolutory conditions can be casual, potestative, or purely potestative

Suspensive conditions can be casual, potestative (most are potestative), but can never be purely
potestative because the obligor would be binding themselves to nothing it would be at their whim.
 Suspensive Conditions Resolutory Conditions

Casual Casual

Potestative (most) Potestative

Purely Potestative
Because it would be at the whim of the Purely Potestative
obligor

Effects of Conditions

Effects of Suspensive Conditions: (while condition pending, no obligation)

1. Obligee cannot demand performance while suspensive condition is pending

2. If obligor decided to perform ahead of time, he can demand his money back as long as condition
has not occurred (different from term)
3. No prescription because we dont know if an obligation will exist.
4. 1893 Compensation cannot take place prior to occurrence
5. 1771 Obligee of conditional obligation , pending fulfillment of condition, may take lawful
measures to preserve his right
During period of time before condition occurs, the obligee may take acts of
conservation that will protect his right.
Ex: like asking for something in pledge to ensure performance.
A fortiori can also do so under suspensive term.
6. Obligee under suspensive condition can transfer his right since it is part of his patrimony
7. (Effect of both suspensive and extinctive) 1775 Effects are retroactive to the inception of the
obligation.
Status Quo Ante the parties are put back into their situation before contract.

Effects of Resolutory Conditions:

Think about them a contrario to suspensive

Obligation is retroactively rescinded if the condition occurs
The parties are put into the situation they were in prior to the contract.
The retroactivity may be limited when:
o Theres no way to undo things that have been done
o Courts will give one party what he is due through damages
- Obligations with multiple objects -

Conjuntive, Alternative, & Facultative Obligations

A - Conjunctive Obligations

1807 Obligor is bound to multiple items of performance that may be separately rendered or
enforced
The obligations are multiple, but they may be joined together under a single contract
Obligor can be sued to perform all items

B Alternative Obligations

1808 When the obligor is bound to render only one of two or more items for performance
o Its important to ascertain who has the right to choose Obligor or obligee?
1812 When choice belongs to obligor and one of the items becomes unlawful or impossible,
the obligor must choose the one that remains.
o When the obligee can choose, same thing
o When obligor is at fault, obligee can sue for damages for lost item.

C Facultative Obligations (not in the code)

Only one item is owed, but the obligor reserves the right to carry out an object of lesser value.
The obligor has the Faculty to get out of contract by performing lesser.

- Obligations with multiple persons -

Several, Joint, and Solidary Obligations

- More than one obligor one obligee

- One obligor more than one obligee
- More than one obligor more than one obligee

Several Obligations (1787) (rare)

When many obligors owe a single performance to one obligee, or vice versa
The obligors are not bound together, their performances are individual
When each performance is identical its important to make sure they remain separate.

Joint Obligations (more common)

When different obligors are together for a performance, but none is bound for the whole.
o Ex: 3 obligors owe $900 to obligee. Unless states otherwise, they jointly owe $900, but
they each owe $300.
o The obligee could bring action against all 3.
o The obligee takes a risk because if one fails to pay, he cannot shift the obligation to pay
to the other two
o Joint obligations are usually changed into several.
 When the object of the obligation is indivisible (like services), it makes it tough.
Joint obligors do not represent each other, when the obligee sues it is against one obligor.
IT would be to the benefit of the obligee to change joint into solidary.

Solidary Obligations (1790)

1794 An obligation is solidary when each obligor is liable for the whole performance; a performance by
one obligor relieves the others of the duty to pay.

When solidary among obligees, the obligor is bound to perform the whole for each.
o Dangerous for obligees, so youre unlikely to find solidary obligations on the part of
obligees
However, extremely likely to encounter solidary obligations on the part of the obligors.
o Its beneficial to obligee, the obligors are bound in solido
o Ex: Mom, Dad and Uncle agree to take out loan to pay for kids education, all are liable
for whole payment..

1796 Solidary obligations shall not be presumes because we want them to arise from a clear
expression of the parties intent or as a function of law.

Two Sources of Solidarity:

1. The law
2324 When you conspire with another to commit an intentional or willful act, you are both
answerable in solido.
2. A contract
3035 Suretyship accessory K by which a person binds self to creditor to fulfill obligation
of another; creates solidarity between sureties.

Effects of solidarity:

Meant to create a benefit to obligee or creditor

Effects are built around 2 important concepts:
1. Unity of the object/performance only one object to be performed by obligors solidarily
2. Representation
Each obligor, in solido, represents the others
Each obligor is the mandatary of the others

Effects of the 2 concepts:

1794 - Creditor/Obligee may demand performance of whole thing from any one obligor
o Performance by one obligor will extinguish the obligation
1795 Solidary obligor may not request a division of the debt among the obligors
o Obligee can institute an action against any one obligor, even after he has sued
another
Each obligor may not be bound in the same way as the others:
o Obligee can give to one solidary obligor the benefit of a term
Obligee can contract individually with the obligors if he chooses
 o He will likely go after the obligor with no defenses for performance of the whole.
1801 Defenses of a solidary obligor
o may raise defenses that arise from nature of obligation or those that are personal to
him, cannot raise defenses personal to the other obligors.

Extinguishment of Solidary Obligation

Renunciation of Solidarity

1802 Must be expressed.

The obligee can renounce solidarity to all obligors it becomes joint
The obligee can renounce solidarity to one obligor he will owe one share, the others are
solidarily bound to the rest.

Beware of the distinction between renunciation of solidarity and remission of debt

Remission of Debt (A fortiori renunciation is done, too)

The obligee can remit a debt of a solidary obligor. In order to do it, he must be renounces from
solidarity, too. Think about it.

Solidarity is not heritable. We find it too burdensome to impose without the will of the party. However,
the debt still exists as a joint obligation.

1. HOLLAND v. BUCKLEY, 305 So.2d 113 (LA. 1974) p. 438

a. Facts: Ex delicto action based on injury received from a dog bite. The First Judicial District Court, Parish of
Caddo, C. J. Bolin, Jr., J., dismissed suit, and plaintiff appealed. The Court of Appeal, 287 So.2d 599, affirmed, and
certiorari was granted.
b. Issue: When an innocent bystander is bitten by a dog, who shall bear the damages so caused, victim or
owner or animal?
c. Sources of Law: LCC Art. 2321 and case law. In this case, overturned former case law and returned to the
French Shcholars interpretation. (Courts decisions have impact on formation of statutes)
d. Holding: The owner, Interpreted LCC Art. 231 as follows: When a domestic animal harms another, the master
of the animal is presumed to be at fault. The owner may exculpate himself only by showing the harm was caused by
fault of victim, third person, or by a fortuitous event. Changed long line of judicial decisions requiring victim to prove
that owner knew dog was prone to violence
2. LOYACANO v. LOYACANO, 358 So.2d 304 (LA. 1978) p. 447
a. Facts: Ex-wife filed rule to increase alimony and child support awards, and husband filed rules to reduce
child support and reduce or revoke alimony. Following remand, 311 So.2d 910, child support was awarded in amount
of $500 per month and alimony was reduced to $300 per month, and both parties appealed. The Court of Appeals,
Fourth Circuit, Parish of Orleans, 343 So.2d 365, affirmed child support award but revoked alimony award, and
application for certiorari to review was granted.
b. Issue: Does LC Art. 160, which allow court to award a divorced wife alimony, deny equal protection of the
law under US and LA constitutions (male alimony)?
c. Sources of Law: LCC Art. 160. Based on idea that a married man could support a wife and a married wife
could not support herself. Archaic reasoning. Analyzed the legislative intent rather than the text of the code. (When
the words of a statute do not apply, look beyond the words for the meaning) Rule -> Means of Support
d. Holding: No, Art. 160 would be equally served by granting alimony to either spouse when the circumstances
under Art. 160 prevail. May allow alimony to a former husband.
e. The Supreme Court, Dennis, J., held that decision of trial court reducing alimony from $1,000 per month to $300 per
month was not contrary to principles of law, was exercise of sound discretion, was not arbitrary or willful, and
reached reasonable and just result, and thus should have been affirmed on appeal.
f. Methods of Reasoning:
i. Purpose: make ratio legis coincide with ratio juris
ii. General policy v. practical reason
 iii. Ratio juris equal protection clause application beyond
1. Wife in conflict with this. Must interpret with US constitution
iv. a pari ratione p. 450, 451 (wives granted alimony b/c) reason is out of support
v. historical method p.451 (1973 LA constitutional convention )
g. Dissent:
i. Marcus
1. a contrario sensu distinguish between husband and wife
2. ratio legis stricta persons similar (reasoning used narrowly) does not address ratio juris
ii.
3. BERGERON v. BERGERON, 492 So.2d 1193 (LA. 1986) p. 453
a. Facts: On writ of certiorari, the Supreme Court, Dennis, J., held that none of the events proved by father
constituted change in circumstances warranting consideration of change in custody decree.
b. Issue: Does the moving party, in order to obtain a change in a prior custody decree, must show that a
change in circumstances has occurred which materially affect the childs well-being
c. Sources of Law: LCC Art. 157. Spawned case law, LCC Art. 146 amended. When legislature codifies a
judicial principle, it is assumed that they tacitly accept the meaning behind those judicial interpretations. (Use
jurisprudential precepts IOT determine the best interest of the child. Legislation must consider the decisions of
courts. Decisional Precept, without being formal sources of positive law, should have considerable authority,
especially when they form a stream of uniform homogenous rulings having the same meaning.)
d. Holding: Yes, they do based on LCC Art. 157. On writ of certiorari, the Supreme Court, Dennis, J., held that
none of the events proved by father constituted change in circumstances warranting consideration of change in
custody decree.
4. JONES v. State of LA., 336 So.2d 59 (LA, 1976) p. 484
a. Facts: LA man sought injunctive relief to declare a law unconstitutional or to allow him to qualify as a
candidate for a newly created judgeship in Baton Rouge. Trial Court ruled against P at his costs.
b. Issue: Is a law that mandates a qualification period of four days (three of them holidays) unconstitutional for
want of promulgation? Is promulgation the same as publication?
c. Sources of Law: LA Const. Art. IX, unconstitutional for a law not to be promulgated Used doctrine (Blacks
definition of promulgation), statute (constitution, sec. of state shall promulgate) IOT find a distinction between
publication and promulgation.
d. Holding: Promulgation is not the same as publication, and article 46 was promulgated prior to the opening of
the qualification period, therefore the law is constitutional. Affirmed.
e. Foundation of Non-Retroactivity- No security for private persons if rights, fortunes, etc. could be questioned b/c
the legislature changed its mind
5. DRIPPS v. DRIPPS, 366 So.2d 544 (LA, 1979) p. 488
a. Facts: Couple had two children. Father died. In LCC Art. 214, there were two sections that contradicted each
other. First, it was stated that natural parents of a deceased parent had limited visitation rights to the grandchildren.
Later, it stated that, in the event of an adoption to a blood parent, all other legal duties (other blood parents and
grandparents) were relieved and all rights divested. The legislature was reviewing a change that allowed the
grandparents certain limited visitation rights. Grandparents sued for visitation rights after the mother remarried and
the children were adopted by the new husband.
b. Issue: If a law is changed while a suit is pending, can the amended law be applied retroactively?
c. Sources of Law: LCC Art. 214/258. And case law. Laws cannot be retroactive (unless they deal with
jurisdiction or interpretation) Analyzed statute and used case law for intent of statutes.
d. Holding: No (unless they affect jurisdiction or interpretive law) However, if a judgment be correctly given under
a law which is repealed pending the appeal, the court is bound to reverse it. Visitation rights in the future are
province of legislature and will be in accord with current, changed law
6. VINA MAE HENRY v. ANTOINE JEAN, 115 So.2d 363 (LA, 1959) p. 495
a. Facts: Suit was brought to have plaintiffs recognized as forced heirs of their maternal grandmother and for
reduction of disposable portion of legacy of defendant, who was their uncle, and who was the sole legatee under the
last will of their maternal grandmother. The District Court of the Parish of St. Martin rendered judgment for the
plaintiffs, and the defendant appealed. The Court of Appeal, First Circuit, Parish of St. Martin, 112 So.2d 171,
affirmed the judgment, and the Supreme Court granted certiorari.
b. Issue: Is a law that affects status such as the legitimacy of children, retroactive, and hence unconstitutional,
when it changes the status of children that are already born?
c. Sources of Law: LCC Art. 198. Amended by Act. 50. Changed the application (legitimacy) of the law. Then
analyzed case law IOT discover intent behind status in reference to retroactivity.
d. Holding: No, law cannot be classed as retroactive simply because it draws upon antecedent facts for its
operation. statute was amended to provide that children born out of marriage, except those who are born of an
incestuous or adulterous connection, are legitimated by subsequent marriage of their father and mother, whenever
father and mother have formally or informally acknowledged them for their children, either before or after the
 marriage, and maternal grandmother died in 1949, her son, who was born after the marriage, was not the sole
legitimate child, and a daughter, who was born prior to the marriage, was legitimated by the statute, and plaintiffs,
who were her children, were entitled to maintain suit to be recognized as forced heirs of the grandmother.
7. ARDOIN v. HARTFORD ACCIDENT & INDEMNITY CO., 360 So.2d 1331 (LA, 1978)
a. Facts: Equitable outcome, found reasoning to backwards-judge . July 9, 1976, Lorrie Ardoin died during a
coronary artery by-pass. It was during the operation of a heart-lung machine, under cardiopulmonary perfusion. In
this case, the doctor (James Bozeman) attached a new type of tube (Bentley Labs) to the patients heart and it blew
in air rather than sucking, which instantly killed the patient. Decedants wife brought wrongful death claim against
doctor, hospital, and manufacturer of new tubing. Doctor and expert witness testified that although it would be an
easy test, it wasnt customary for local specialists to test for the right flow. Another doctor (Baton Rouge as opposed
to Lafayette) testified that it was common practice. This was ruled inadmissible due to the locality rule. Trial court
found negligence on parts of one of the perfusionists and the DM of Bentley labs (not on part of doctor). On appeal,
affirmed everything.
b. Issue: Does the locality rule apply when determining tort liability of a medical specialist? Was the application
of La. R.C. 9:2794 retroactive and was it constitutional?
c. Sources of Law: [Constitution] equitable, personal statute [Code] - Art. 2315/2316 LCC (general tort
liability), [Statute] - La R.S. 9:2794 (Doctors and Dentists must be viewed along standards of care in same
community or locality) [Jurisprudence] most abandoned locality rule, so did ALI., analyzed absurd consequences
(p.619)
d. Holding: A Medical Specialist is required by Art. 2315, 2316 to exercise a degree of care possessed by
physicians within that specialty and the locality rule does not apply (modern medical practice makes it not necessary
communication, training, etc).Judgment reversed and remanded. Application of law was not retrospective because
it was procedural.
e. Methods of Reasoning: [REASON (jus) v. WORDS (lex)
i. A generali sensu Art. 2315 makes no limitation on notion of fault
1. Ratio Juris Do not hurt others (reason do not hurt others)
2. Ratio Legis Doctors do not hurt patients
ii. A fortiori ratione La R.S. 9:2794(specific) <- from 2316/2316(general) reason so patients are taken
care of
1. Creates distinction/exception for specialists
2. Locality Rule acceptable if there are many doctors (for oversight), but illogical as applied
iii. A contrario sensu making a distinction between general and specific
1. Problem court of appeals added words (created law)
iv. In pari material a comparison should be made for other classes of occupations
1. It is done for other fields, therefore it can be done here
v. Et absurdam three evils which come from applying locality rule to specialists
vi. Res nova this is a new issue tool used to disprove prior jurisprudence (no court rulings based on
primary sources of law)
f. COTTIN v. COTTIN, 5 Mart. (O.S.) 93 (1817) p. 689
i. Facts: Man died while wife was pregnant. His wife later gave birth, and her son died after seven of
eight hours.
ii. Issue: Did a child inherit who only lived for a few hours, from a father who died before he was
born?
iii. Holding: Yes, 2/3 of estate of the neat amount of the estate to the deceased son. In order to inherit,
child must be natural born (not abortive) An Abortive child was to be subject to an untimely birth, born
dead or incapable of living. Spanish laws 24 hour rule was impliedly repealed with this adoption of Civ.
Code 8, Art. 6 Further, 24 hours of life does not prove the capacity to live. Baptism, another requisite under
Spanish law, is a religious argument, unconnected with present issue.

Problem: Post-Cottin legislation adopted Spanish law as common law and French law as a restatement