LOUISIANA LAW OF CONVENTIONAL OBLIGATIONS A PRÉCIS SECOND EDITION

Transcription

1 LOUISIANA LAW OF CONVENTIONAL OBLIGATIONS A PRÉCIS SECOND EDITION Alain Levasseur With the Assistance of: Kimberly Ulasiewicz

2 LexisNexis Law School Publishing Advisory Board Paul Caron Professor of Law Pepperdine University School of Law Bridgette Carr Clinical Professor of Law University of Michigan Law School Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 LOUISIANA LAW OF CONVENTIONAL OBLIGATIONS A PRÉCIS Second Edition ALAIN A. LEVASSEUR Hermann Moyse, Sr. and Henry Plauché Dart Professor of Law, Emeritus Director, European Studies Jean Monnet Chair Louisiana State University, Paul M. Hebert Law Center 2015

4 ISBN: (print) This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2015 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 630 Central Ave., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2015 Pub.3301)

5 Louisiana Code Series CIVIL CODE SERIES LOUISIANA POCKET CIVIL CODE ALAIN LEVASSEUR 2016 LOUISIANA CIVIL CODE PRÉCIS SERIES LOUISIANA LAW OF OBLIGATIONS IN GENERAL ALAIN LEVASSEUR 2015 LOUISIANA LAW OF CONVENTIONAL OBLIGATIONS ALAIN LEVASSEUR 2015 LOUISIANA LAW OF SALE AND LEASE ALAIN LEVASSEUR & DAVID GRUNING 2015 LOUISIANA LAW OF TORTS FRANK MARAIST 2010 LOUISIANA LAW OF PROPERTY JOHN RANDALL TRAHAN 2012 LOUISIANA LAW OF SUCCESSIONS FORTHCOMING LOUISIANA LAW OF SECURITY DEVICES MICHAEL H. RUBIN 2011 LOUISIANA LAW OF PERSONS MONICA H. WALLACE, FORTHCOMING iii

6

7 ABOUT THE AUTHOR Professor Alain Levasseur is a graduate of the Universities of Paris (France) and Tulane. He was an associate with the Paris firm of Mudge, Rose, Guthrie & Alexander for a while but left the firm to become a technical assistant at the World Bank in Washington, D.C. Professor Levasseur taught at Tulane Law School from when he joined the LSU Law Faculty. He is a member of the International Academy of Comparative Law, the Société de Législation Comparée, and the Louisiana State Law Institute; he serves on the editorial or advisory boards of the American Journal of Comparative Law, the Revue Internationale de Droit Comparé, the Revue Trimestrielle de Droit Civil, the Revue Générale de Droit, the Foro de Derecho Mercantil, and e- Competitions. He is a member of the Scientific Committee of the Fondation pour le Droit Continental; he is president of the Louisiana Chapter of the Association Henri Capitant and of the International Association of Legal Methodology. He has published extensively in the fields of Comparative Law, Civil Law (Civil Law System/Tradition, Obligations, Contracts, Sale/Lease, etc.), EU/EC Law, and U.S. Law (in French with Dalloz). He has been a regular visiting Professor at the Universities of Aix-Paul Cézanne and Lyon III. He has been honored with two Doctorats Honoris Causa, one from the University of Aix- Marseille Paul Cézanne (1999) and another from the University of Paris-Panthéon Assas (2010). v

8

9 Table of Contents Introduction Chapter 1 Classification of Contracts (General Principles) LSA-C.C. Arts Article 1 Unilateral Contracts and Bilateral or Synallagmatic Contracts LSA- C.C. Arts Article 2 Onerous and Gratuitous Contracts LSA-C.C. Arts Article 3 Commutative and Aleatory Contracts LSA-C.C. Arts Article 4 Principal and Accessory Contracts LSA-C.C. Art Article 5 Nominate and Innominate Contracts LSA-C.C. Arts Article 6 Implied Kinds of Contracts Consensual, Solemn, and Real Contracts Mutually Negotiated Contracts and Contracts of Adhesion Chapters 2 to 7 Formation of Contracts Chapter 2 Capacity LSA-C.C. Arts to Article 1 Incapacity of Enjoyment Article 2 Incapacity of Exercise Scope and Effect of Nullity for Incapacity Chapter 3 Consent LSA-C.C. Arts to Article 1 Existence and Expression of Consent Offer Acceptance Article 2 Binding Nature of Offer; Meeting of Minds; Revocation Article 3 Offer of a Reward and the Public Chapter 4 Integrity of Consent, Vices of Consent LSA-C.C. Arts to Article 1 Error Concept of Error Seriousness of the Error Kinds of Serious Errors: Errors of Fact, Errors of Law, Errors as to the Person Effect of Error Article 2 Fraud Concept of Fraud Constitutive Elements of Fraud Effects of Fraud vii

10 Table of Contents Article 3 Duress [Violence] The Constitutive Elements of Duress Characteristics of Duress: Author-Perpetrator, Reasonableness, Unlawfulness Legal Consequences Article 4 Lesion Chapter 5 Cause LSA-C.C. Arts to Article 1 Brief Historical Survey of Cause Contemporary Theory of Cause and its Legal Regime Legal Regime of Cause Chapter 6 Object and Matter Oof Contracts LSA-C.C. Arts to Article 1 Legal Characteristics or Features of an Object Lawfulness of the Object Determination of the Object: Kind, Quantity, Quality Possibility or Impossibility of the Object Article 2 Promesse De Porte-Fort Promesse De Porte-Fort: Description and Nature Effects of a Promesse De Porte-Fort Chapter 7 Third Party Beneficiary Stipulation Pour Autrui LSA-C.C. Arts to Article 1 Notion of a Stipulation for the Benefit of Another Article 2 Conditions for a Valid Stipulation Conditions Pertaining to the Contract Between Stipulator and Promisor Conditions Pertaining to the Stipulation Itself Article 3 Effects of a Stipulation for the Benefit of Another Effects Between Stipulator and Promisor Effects Between the Stipulator and the Third Party Beneficiary Effects Between the Promisor and the Third Party Beneficiary Chapter 8 Effects of Conventional Obligations or Contracts LSA-C.C. Arts to Article 1 General Effects of all Contracts: Effect of Law-Good Faith Effect of Law Good Faith Article 2 Specific Performance and Putting in Default Specific Performance Default; Putting in Default; Effects and Manners Article 3 Damages Stipulated Damages Court Assessed Damages viii

11 Table of Contents Chapter 9 Dissolution LSA-C.C. Arts and Nullity LSA-C.C. Arts Article 1 Dissolution Grounds for Dissolution Mechanism of Dissolution Effects of Dissolution Article 2 Nullity Kinds of Nullity and Extent of Nullity: Absolute and Relative Effects of Nullity Chapter 10 Interpretation of Contracts LSA-C.C. Arts to Article 1 Rules of Interpretation Article 2 Bending the Rules: Interpretation is not Revision Bending the Rules Interpretation is not Revision Chapter 11 Revocatory and Oblique Actions LSA-C.C. Arts to Article 1 The Revocatory Action Conditions for the Existence of a Revocatory Action Principal Effect of a Revocatory Action: Nullity of the Act Revocatory Action and Onerous Contracts Revocatory Action and Gratuitous Contracts Exceptions Additional Requirements and Effects of a Revocatory Action Article 2 The Oblique Action Appendix I Louisiana Civil Code 2015 Title 4 Conventional Obligations or Contracts Appendix II Louisiana Code of Civil Procedure Appendix III Cases Illustrations Index I-1 ix

12