What are the obligations of a creditor in an obligation to do give a specific thing?

When you agree to borrow money from a lender, you enter into a legal contract. It’s your responsibility to ensure that you fully understand this contract before you sign it. Your signature tells the lender that you agree to meet your obligations by repaying the loan according to the contract.

Things to consider if you can't make a loan payment

It can happen to anybody. So if you are unable to make a monthly payment, here’s what you should do:

• Contact the creditor immediately, before the payment due date. Your call demonstrates your good faith. Most creditors are willing to make alternative arrangements if your situation has changed.
• Don't wait until the due date has passed or until the creditor calls you. Waiting puts you at a disadvantage when dealing with your creditor and that’s the last thing you want.
• Ask for a grace period. If it's a one-time occurrence, your creditor may give you a grace period, allowing you time to get your financial affairs in order.
• Renegotiate your loan terms. If your situation has permanently changed, your creditor may extend the term of the loan. That will spread your payments over a longer period of time, giving you room to breathe each month and reduce your stress.

The consequences of ignoring your loan obligations

A loan is a legal obligation. If you fail to meet the terms of the loan agreement, your creditor has the right to take court action against you to recover the balance of the debt. This could happen in several ways.

• If the loan is secured by a chattel mortgage, the creditor is entitled to take possession of the property that you have signed over as security. The creditor can then sell the property and apply the proceeds against the outstanding balance of the loan.
• If there is no chattel mortgage on the loan, or if you did not pledge any assets as security, the creditor can obtain a court order. A court order grants access to other goods that you own, which similarly can be sold to compensate for the default.
• If your spouse or some other person co-signed your loan application, the creditor will usually transfer the demand for payment to that person.
• If you were the sole signer, your creditor may resort — again by court order — to garnisheeing your wages. This means that the money you owe to the creditor will be paid directly by your employer. Until the full amount of the debt is repaid, your earnings will no longer pass through your hands.

You can probably prevent these consequences by being proactive and taking the steps outlined above. If your financial difficulties are serious and you cannot resolve them yourself, then you should consider credit counselling. These services are available through your lending institution or through an independent agency.

The last resort

If you are in over your head and can’t work out an arrangement with your creditors, then as a last resort you can declare personal bankruptcy. Bankruptcy will free you from most, if not all, of your debts. But it’s a painful experience and you’ll pay a very high price for this freedom. All of your assets other than your personal essentials may be sold by a bankruptcy trustee. Other than the money to cover the trustee's fees, the proceeds from the sale will be distributed to your creditors. What’s more, a bankruptcy stays on your credit record for a number of years. It will take considerable time and effort on your part to restore your credit rating. Bankruptcy is a drastic step, and may cause you and your family a great deal of hardship.

COMMON LAW CONTRACTS FOR CIVIL LAW STUDENTS

Prof. Gruning: LCIV 702, Spring Semester 1999

The Former Provisions of the Louisiana Civil Code on Obligations and Contracts

Numerous cases you have studied interpret or rely on the articles on obligations repealed effective 1 January 1985. Occasionally, the editor has added a note, shown in brackets as [Ed. note.] Some articles here entered Louisiana law in the Digest of the Civil Law in Force in Louisiana of 1808. The Civil Code of 1825 maintained some of those but added a good many others: those in the law of conventional obligations governing error are a particularly good example of the innovations of the 1825 Code. The Civil Code of 1870, on the other hand, did not substantially alter the conventional obligations articles. Thus, until the revision of 1984, those articles were in effect in Louisiana for more than a century and a half. A proper edition of these articles would include the French version, which the jurisprudence had with some consistency treated as being authoritative in case of a difference in sense with the English.

In addition to being useful to the understanding of the jurisprudence that relies on them, these articles may also be of additional use to the student: their didactic and doctrinal character is immediately apparent, something that the revision of the law of obligations worked at removing so as to make the new version more modern.

TITLE III -- OF OBLIGATIONS

CHAPTER 1B OF THE NATURE AND DIVISION OF OBLIGATIONS

OA 1756. An obligation is, in its general and most extensive sense, synonymous with duty.

OA 1757. Obligations are of three kinds: imperfect obligations, natural obligations, and civil obligations.

1. If the duty created by the obligation operates only on the moral sense, without being enforced by any positive law, it is called an imperfect obligation, and creates no right of action, nor has it any legal operation. The duty of exercising gratitude, charity and the other merely moral duties, is an example of this kind of obligation.

2. A natural obligation is one which can not be enforced by action, but which is binding on the party who makes it, in conscience and according to natural justice.

3. A civil obligation is a legal tie, which gives the party, with whom it is contracted, the right of enforcing its performance by law.

OA 1758. Natural obligations are of four kinds:

1. Such obligations as the law has rendered invalid for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust.

2. Such as are made by persons having the discretion necessary to enable them to contract, but who are yet rendered incapable of doing so by some provision of law.

3. When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.

4. There is also a natural obligation on those who inherit, an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective

for want of form only.

OA 1759. Although natural obligations can not be enforced by action, they have the following effect:

1. No suit will lie to recover what has been paid, or given in compliance with a natural obligation.

2. A natural obligation is a sufficient consideration for a new contract.

OA 1760. Civil obligations, in relation to their origin, are of two kinds:

1. Such as are created by the operation of law.

2. Such as arise from the consent of the parties who are bound by them, which are called contracts or conventional obligations.

Each of these divisions will form the subject of a separate title.

TITLE IV -- CONVENTIONAL OBLIGATIONS

CHAPTER 1 -- GENERAL PROVISIONS

OA 1761. A contract is an agreement, by which one person obligates himself to another, to give, to do or permit, or not to do something, expressed or implied by such agreement.

OA 1762. The contract must not be confounded with the instrument in writing by which it is witnessed. The contract may subsist, although the written act may, for some defect, be declared void; and the written act may be good and authentic, although the contract it witnesses be illegal. The contract itself is only void for some cause or defect determined by law.

OA 1763. In any contract, for the breach of which damages could be recovered, or which could be specifically enforced between the original parties the obligation is incurred, and the right is vested in their representatives, although they are not specially named, unless the contrary intent is expressed, or unless it results from the nature of the agreement.

OA 1764. A. All things that are not forbidden by law, may legally become the subject of, or the motive for contracts; but different agreements are governed by different rules, adapted to the nature of each contract, to distinguish which it is necessary in every contract to consider:

1. That which is the essence of the contract, for the want whereof there is either no contract at all, or a contract of another description. Thus a price is essential to the contract of another description. Thus, a price is essential to the contract of sale; if there be none, it is either no contract, or if the consideration be other property, it is an exchange.

2. Things which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the parties may expressly modify or renounce, without destroying the contract or changing its description; of this nature is warranty, which is implied in every sale, but which may be modified or renounced, without changing the character of the contract or destroying its effect.

3. Accidental stipulations, which belong neither to the essence nor the nature of the contract but depend solely on the will of the parties. The term given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease, are examples of accidental stipulations.

What belongs to the essence and to the nature of each particular description of contract, is determined by the law defining such contracts; accidental stipulations depend on the will of the parties, regulated by the general rules applying to all contracts.

B. (1) Notwithstanding the provisions of Paragraph (A)(2) of this Article, the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be considered commodities subject to sale or barter but shall be considered as medical services.

(2) Any contract of sale for the delivery of human eye tissue or any portion of the human eye is hereby declared to be forbidden by law. Provided, however, that any licensed bank or storage facility for storage of eye tissue for use in medical education, research, therapy or transplantation to individuals, is hereby authorized to contract for the delivery of human eye tissue or any portion thereof as a medical service to any person eligible to be a donee of an anatomical gift pursuant to R.S. 17:2353. The consideration or fee for a contract of medical service for the delivery of eye tissue shall not exceed the cost expended by the bank or storage facility for the acquisition of said eye tissue. Amended by Acts 1968, No. 301, Sec. 1; Acts 1977, No. 723, Sec. 1.

OA 1765. To all contracts there must be at least two parties; one who does, or engages to do or not to do, another to whom the engagement is made. If this latter party make no express agreement on his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance.

It is called a bilateral or reciprocal contract, when the parties expressly enter into mutual engagements.

OA 1766. No contract is complete without the consent of both parties. In reciprocal contracts it must be expressed. In some unilateral contracts the law provides that under certain circumstances it shall be presumed.

OA 1767. Contracts, considered in relation to their substance, are either commutative or independent, principal or accessory.

OA 1768. Commutative contracts are those in which what is done, given or promised by one party, is considered as equivalent to, or a consideration for what is done, given, or promised by the other.

OA 1769. Independent contracts are those in which the mutual acts or promises have no relation to each other, either as equivalents or as consideration.

OA 1770. A contract containing mutual convenants [covenants] shall be presumed to be commutative, unless the contrary be expressed.

OA 1771. A principal contract is one entered into by both parties, on their own accounts, or in the several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others; such as suretyship, mortgage and pledge.

OA 1772. Contracts, considered in relation to the motive for making them, are either gratuitous or onerous.

OA 1773. To be gratuitous, the object of a contract must be to benefit the person with whom it is made, without any profit or advantage, received or promised as a consideration for it. It is not however the less gratuitous, if it proceed either from gratitude for a benefit before received, or from the hope of receiving one hereafter, although such benefit be of a pecuniary nature.

OA 1774. Any thing given or promised as a consideration for the engagement or gift, any service, interest or condition, imposed on what is given or promised, although unequal to it in value, makes a contract onerous in its nature.

OA 1775. Considered in relation to their effects, contracts are either certain or aleatory.

OA 1776. A contract is aleatory or hazardous, when the performance of that which is one of its objects, depends on an uncertain event.

It is certain, when the thing to be done is supposed to depend on the will of the party, or when in the usual course of events it must happen in the manner stipulated.

OA 1777. Contracts in general, under whatever denomination they may come, and whether they may or may not be included in any of the above divisions, are regulated by certain rules, which are the subject of this title.

OA 1778. Certain contracts are regulated by particular rules which are established in the parts of the Code which treat of those contracts.

OA 1779. Four requisites are necessary to the validity of a contract:

1. Parties legally capable of contracting.

2. Their consent legally given.

3. A certain object, which forms the matter of agreement.

4. A lawful purpose.

Section 1: Of the Parties to a Contract, and their Capacity to Contract

OA 1780. Those only are parties to a contract, who have given their consent to it, either expressly or by implication.

OA 1781. The cases, in which consent is implied, are particularly determined by law.

OA 1782. All persons have the capacity to contract, except those who incapacity is specially declared by law. Amended by Acts 1924, No. 45.

OA 1783. All cases of incapacity are subject to the following modifications and exceptions.

OA 1784. Persons interdicted can, in no case whatever, make a valid contract after the petition has been presented for their interdiction, until it be legally removed.

OA 1785. Minors emancipated may contract in the cases already provided by law, and when not emancipated, their contracts are valid, if make with the intervention of their tutors, and with the assent of a family meeting, in the cases where by law it is required.

When the minor has no tutor or one who neglects to supply him with necessaries for his support or education, a contract or quasi contract for providing him with what is necessary for those purposes, is valid.

A minor is also capable of accepting the contract of mandate, under the restrictions and modifications contained in the title on that subject.

His stipulations in a marriage contract, if made with the consent of those whose authority is in such case required by law, are also valid.

The obligation arising from an offense or quasi offense, is also binding on the minor. In all other cases, the minor is incapacitated from contracting, but his contracts may be rendered valid by ratification, either expressed or implied, in the manner and on the terms stated in this title under the head: Of Nullity or Rescission of Agreements.

OA 1786, 1787. Repealed by Acts 1979, No. 709, Sec. 2. [These articles dealt with the incapacity of the wife to contract and relief from that incapacity. Ed. note.]

OA 1788. The contract, entered into by a person of insane mind, is void as to him for the want of the consent, which none but persons in possession of their mental faculties can give. It is not the judgment of interdiction, therefore, that creates the incapacity; it is evidence only of its existence, but it is conclusive evidence, and from these principles result the following rules:

1. That, after the interdiction, no other evidence than the interdiction itself is necessary to prove the incapacity of the person, and to invalidate any contract he may have made after the day the petition for interdiction was presented, and that no evidence to show that the act was made during a lucid interval, or to contradict the judgment of interdiction, can be admitted.

2. As to contracts, made prior to the application for the interdiction, they can only be invalidated by proving the incapacity to have existed at the time the contracts were made.

3. But in order to prevent imposition, it is not enough to make the proof mentioned in the last rule; it must also, in that case, be shown that the person interdicted was known by those who generally saw and conversed with him, to be in a state of mental derangement, or that the person who contracted with him, from that or other circumstances, was acquainted with his incapacity.

4. That, except in the case of death hereafter provided for, no suit can be brought, nor any exception made, to invalidate a contract on account of insanity, unless judgment of interdiction be pronounced before bringing the suit, or at least applied for before making the exception.

5. That if the party die within thirty days after making the act or contract, the insanity may be shown by evidence, without having applied for the interdiction; but if more than that time elapse, the insanity can not be shown to invalidate the act or contract, unless the interdiction shall have been applied for, except in the case provided for in the following rule.

6. That if an instrument or other act of a person deceased shall contain in itself evidence of insanity in the party, then it shall be declared void, although more than thirty days have elapsed between the time of making the act and the death of the party, and although no petition shall have been presented for his interdiction.

7. In the case mentioned in the preceding rule, other proofs of insanity may be offered by the party who alleges the incapacity, or may be required by the judge.

8. That where insanity is alleged to avoid a donation or other gratuitous contract, it is not necessary to show that the incapacity was generally known; it will be sufficient to show that it existed, and if the party be dead, without having been interdicted, it is not necessary in this case to show that the interdiction was applied for.

9. That evidence of general and habitual insanity, in order to avoid a contract, may be rebutted by showing that the contract or act was made during a lucid interval; but where general insanity, even with some intervals, is shown, the burden of showing that the particular act in dispute was made during such an interval, is thrown on the party who supports the validity of the act or contract.

1. That insanity may be alleged and proved to invalidate a testament although no interdiction have been applied for, nor in that case is it necessary to prove that the insanity was notorious.

11. The allegation in a testament that the testator was of sound mind, can not prevent proof of the contrary being given in evidence, even by the witnesses to the will.

12. That, when these rules refer to the time of presenting the petition for interdiction, as a period which is to determine the validity of a contract or other act, such petition is meant as has not been withdrawn or dismissed.

13. That, while the judgment of interdiction is in force, it is conclusive evidence of incapacity; but that it may be annulled, whenever the insanity ceases, but it can only be annulled by a judgment.

OA 1789. A temporary derangement of intellect, whether arising from disease, accident or other cause, also creates an incapacity pending its duration, provided the situation of the party and his incapacity were apparent.

OA 1790. Besides the general incapacity that persons of certain descriptions are under, there are others applicable only to certain contracts, wither in relation to the parties, such as tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contracts, such as purchases, by the administrator, of any part of the estate committed to his charge. These take place only in the cases specially provided by law, under different titles of this Code. Amended by Acts 1978, No. 627, Sec. 3; Acts 1979, No. 711, Sec. 1.

OA 1791. The persons who have treated with a minor, person interdicted or of insane mind, cannot plead the nullity of the agreement, if it is sought to be enforced by the party, when the disability shall cease, or by those who legally administer the rights of such person during the disability. Amended by Acts 1978, No. 627, Sec. 3; Acts 1979, No. 711, Sec. 1.

OA 1792. If the contract be reciprocal, it must not be enforced on one side only: and if the minor, or other incapacitated person, opposes his incapacity against any part of the agreement, the whole of the contract is void.

OA 1793. If, in a contract with an incapacitated person, or in a contract void for want of form, entered into with any one for the benefit of such incapacitated person, any consideration be paid or given, and the contract be afterwards invalidated on account of such incapacity or want of form, the consideration so paid or given must be restored, if it was applied to the necessary use or benefit of the incapacitated person.

OA 1794. A person who, being ignorant of the incapacity of one unable to contract, shall make an agreement with such person, may, immediately after he has discovered the incapacity, call on the party, if the incapacity has ceased, or on the person having the legal administration of his affairs, if it have not, to confirm or annul the contract; and, if it be a contract of such kind as the administrator might have made, then his assent shall confirm it, or his dissent shall free the contracting party from the obligation on his part. If the assent of a family meeting would have been necessary to authorize the contract, it may be called on the application of the party, and their decision shall have the same effect in confirming or invalidating the contract, that it would have had on its formation. Amended by Acts 1871, No. 87.

OA 1795. If a contract, made by a person incapacitated from contracting, shall be confirmed by him after his incapacity shall cease, the rights of third persons acquired before such confirmation are not impaired thereby, even if such rights were acquired with notice of the invalid act.

OA 1796 Those who may be interdicted from the enjoyment of their civil rights, in consequence of a conviction for crime, can not oppose their incapacity against the performance of any contract they may have made, unless it be against some person having power over them during their confinement, nor can any person with whom they contract plead such incapacity.

Section 2-- Of the Consent Necessary to Give Validity to Contract

'I -- Of the Nature of the Consent, and How It Is To Be Shown

OA 1797. When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such consent, and how those circumstances shall be proved; these come within the purview of the law of evidence.

OA 1798. As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point.

OA 1799. It is a presumption of law that in every contract each party has agreed to confer on the other the right of judicially enforcing the performance of the agreement, unless the contrary be expressed, or may be implied.

OA 1800. The contract, consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.

OA 1801. The party proposing shall be presumed to continue in the intention, which his proposal expressed, it, on receiving the unqualified assent of him to whom the proposition is made, he do not signify the change of his intention.

OA 1802. He is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made in terms, which evince a design to give the other party the right of concluding the contract by his assent; and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow.

OA 1803. But when one party proposes, and the other assents, then the obligation is complete, and by virtue of the right each has impliedly given to the other, either of them may call for the aid of the law to enforce it.

OA 1804. The acceptance need not be made by the same act, or in point of time, immediately after the proposition; if made at any time before the person who offers or promises has changed his mind, or may reasonably be presumed to have done so, it is sufficient.

OA 1805. The acceptance to form a contract must be in all things conformable to the offer: any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him, who makes the offer, the right to withdraw it.

OA 1806. This takes place, even when more is promised than was demanded, or when less is offered than was required: for example, if a request is made to borrow fifty dollars, and the party answers that he will lend one hundred dollars; or, if the request be to borrow one hundred dollars, and the answer that fifty will be lent, there is no obligation in either case, without a further assent of the borrower to take the one hundred, in the first case, and the fifty in the other: for the proposal to borrow fifty does not necessarily imply an assent to borrow one hundred, nor does the proposal to lend one hundred necessarily imply a desire to lend only fifty. The modification or change of the proposition is, in all respects, considered as a new offer, and the party making it, is bound by the acceptance in the same manner as if the original proposition had been made by him.

OA 1807. When, however, from the circumstances of the case, the offer necessarily implies an assent to the modification of the acceptance, then the obligation is complete, although there be a difference in terms between the one and the other. If, for example, one offers to sell a certain article for one hundred dollars, and the other, not having yet received the offer, should on his part propose to give two hundred dollars, the proposal to give the greater sum necessarily implies an assent to take it for a less, and the contract is complete at the lowest sum.

OA 1808. But a consent to give anything else, although of a greater value than that contained in the offer, or to give the same or a larger sum at a different term of payment, does not imply an assent to the offer, and there is in that case no obligation.

OA 1809. The obligation of a contract not being complete, until the acceptance, or in cases where it is implied by law, until the circumstances, which raise such implication, are known to the party proposing; he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give to the party, to communicate his determination.

OA 1810. If the party making the offer, die before it is accepted, or he to whom it is made, die before he has given his assent, the representatives of neither party are bound, nor can they bind the survivor. But if the contract be accepted before the death of the party offering it, although he had no notice of it, the obligation is complete: but if the representatives assent to an acceptance of the surviving party in the first instance, or the survivor assent to an acceptance made by the representatives in the second instance, then it becomes a new contract between the representatives and the surviving party.

OA 1811. The proposition as well as the assent to a contract may be express or implied:

Express when evinced by words, either written or spoken;

Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.

OA 1812. Express consent must be given in a language understood by the party who accepts, and the words by which it is conveyed must be in themselves unequivocal; if they may mean different things, they give rise to error, which, as is hereinafter provided, destroys the effect of a contract.

OA 1813. Even when words are unequivocal and expressive of assent, they are not always obligatory, when from the context, if in writing, or from what in speech is equivalent to it, the words which immediately precede, or follow, it appears that the party did not intend to obligate himself.

OA 1814. Unequivocal words, expressive of mere intent, do not make an obligation.

OA 1815. A positive promise, that, from the manner in which it is made, shows that there was no serious intent to contract, creates no obligation.

OA 1816. Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract. To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value. If an offer is made of an article in deposit, and the article is received, the contract of deposit is complete. If a mandate is acted on, the mandatary is bound in the same manner as if he had accepted in writing. In all those cases and others of the like nature, all the conditions, which he, who gives or proposes, annexed to the delivery or the acceptance of the proposition, are also presumed to have been accepted by the act of receiving. If the merchant, in delivering the goods, declare that they must be paid for by a certain time; if the depositor designate how the deposit is to be kept, or the mandator in what manner his commission is to be executed, he who receives and acts is obligated to the performance of all these conditions.

OA 1817. Silence and inaction are also, under some circumstances the means of showing an assent that creates an obligation; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other.

OA 1818. Where the law does not create a legal presumption of consent from certain facts, then, as in the case of other simple presumptions, it must be left to the discretion of the judge, whether assent is to be implied from them or not.

'

II B What Defects of Consent Will Invalidate a Contract

OA 1819. Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as is provided in the preceding paragraph, but also where it has been produced by

Error;

Fraud;

Violence;

Threats.

'III-- Of Error, Its Division and Effects

OA 1820. Error, as applied to contracts, is of two kinds:

1. Error of fact;

2. Error of law.

OA 1821. That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.

OA 1822. He is under an error of law, who is truly informed of the existence of facts, but who draws from them erroneous conclusions of law.

OA 1823. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.

'IV -- Of Error in the Motive

OA 1824. The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely represented, there can be no valid consent.

OA 1825. The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several: this principal cause is called the motive, and means that consideration without which the contract would not have been made.

OA 1826. No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.

OA 1827. But wherever the motive is apparent, although not made an express condition, if the error bears on that motive, the contract is void. A promise to give a certain sum to bear the expenses of a marriage, which the party supposes to have taken place, is not obligatory, if there be no marriage.

OA 1828. Thus, too if a suit be brought on an obligation purporting to have been made by the ancestor of the defendant, and, supposing it to be true, the defendant enters into a compromise or promise to pay, the compromise or promise is void, if it should be afterwards discovered that the obligation was forged.

OA 1829. In the same manner a compromise of a suit, and any obligation made in consequence of it, is void, if, at the time, but unknown to the parties, the suit be finally decided. but if the decision be not final, but subject to appeal or revision, the compromise is valid.

OA 1830. A compromise also is void, where one of the parties is ignorant of the existence of a paper, which, being afterwards discovered, shows that the other had not right, and this, whether the other party knew the existence of the paper or not.

OA 1831. But if the compromise be of all differences generally, and there were other subjects of dispute, besides that in which the error existed, of sufficient importance to raise a presumption that, even if the error had been discovered, the compromise would still have been made, then such error shall not invalidate the contract.

OA 1832. In all cases, however, when the information, which would have destroyed the error, has been withheld by the other party to the contract, it comes under the head of fraud, and invalidates the contract.

OA 1833. Error in the motive also is shown in the case either of an insurance on property or an annuity on lives. If the property be lost, or the life be at an end, at the time of making the contract, there is no obligation, unless, in the case of the insurance, it be expressly stipulated that the insurer takes the risk of those events, from a period prior to the contract. If the same express stipulation take place in the case of the annuity, it then becomes an insurance, and is valid for the same reason.

'V -- Error as to the Person

OA 1834. Error as to the person, with whom the contract is made, will invalidate it, if the consideration of the person is the principal or only cause of the contract, as it always is in the contract of marriage.

OA 1835. In contracts of beneficence, the consideration of the person is presumed by law to be the principal cause.

OA 1836. In onerous contracts, such as sale, exchange, loan for interest, letting and hiring, the consideration of the person is by law generally presumed to be an incidental cause, not a motive for a contract.

OA 1837. There are exceptions to the rule contained in the last preceding article:

If, from the nature of the onerous contract, it results that any particular skill or quality be required in its execution, which the party with whom the contract is made, is supposed to possess, then the consideration of the person is presumed to be the principal cause, and error as to the person invalidates the contract. Thus, if intending to employ an architect of great eminence, the party addresses himself by mistake to one of the same name, who has little or no skill, the promise made to him for compensation is void; but if anything be done by the person thus employed, who was ignorant to the mistake, a compensation, proportioned to his service, is due.

OA 1838. Error as to the quality or character in which the party acts, as well as a mistake as to the person himself, invalidates a contract, when such a quality or character is the principal cause of the agreement: Thus, a compromise with one, who is supposed to be the heir of a deceased creditor of the party contracting, is void, if he be not really the heir.

OA 1839. But if the person, who is really entitled to the quality assumed by the one with whom the contract is made, has contributed to the error by his neglect or by design, it will not vitiate the agreement. And in the case above stated, a payment to, or a compromise with one, whom the true heir suffered to remain in possession of the inheritance, and to act as heir, without notice, would be valid.

OA 1840. Contracts, which could only be made by persons possessing certain powers, either delegated by contract, given by virtue of any private or public office, or vested by the operation of law, are also void, when there is error as to the character, quality or office under color of which such contract was made. Contracts entered into under forged or void powers or assignments, or with persons without authority assuming to act as public or private officer, are governed by this rule. Contracts, however, made in the name of another, under void powers, will be valid, if ratified by the principal before the other contracting party has signified his dissent to the agreement.

'VI -- Error as to Nature and Object of the Contract

OA 1841. Error as to the nature of the contract will render it void.

The nature of the contract is that which characterizes the obligation which it creates. Thus, if the party receives property, and from error or ambiguity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is not [no] contract.

OA 1842. Error as to the thing, which is the subject of the contract, does not invalidate it, unless it bears on the substance or some substantial quality of the thing.

OA 1843. There is error as to the substance, when the object is of a totally different nature froni that which is intended. Thus, if the object of the stipulation be supposed by one or both the parties to be an ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bearing on the substance of the object.

OA 1844. The error bears on the substantial quality of the object, when such quality is that which gives it its greatest value. A contract relative to a vase, supposed to be gold, is void, if it be only plated with that metal. Amended by Acts 1871, No. 87.

OA 1845. Error as to the other qualities of the object of the contract, only validates it, when those qualities are such as were the principal cause of making the contract.

'VII -- Errors of Law

OA 1846. Error in law, as well as error in fact, invalidates a contract, wehre such error is its only or principal cause, subject to the following modifications and restrictions:

1. Although the party may have been ignorant of his right, yet if the ontract, made under such error, fulfilled any such natural obligation as might from its nature induce a presumption that it was made in consequence of the obligation, and not from error of right, then such error shall not be alleged to avoid the contract. Thus, the natural obligation to perform the will of the donor, prevents the donee from reclaiming legacies or gifts he has paid under a testament void only for want of form.

2. A contract, made for the purpose of avoiding litigation, can not be rescinded for error of law.

3. Repealed by Acts 1982, No. 187, Sec. 2, eff. Jan. 1, 1983.

4. A judicial confession of a debt shall not be avoided by an allegation of error of law, though it may be by showing an error of fact.

5. A promise or contract, that destroys a prescriptive right, shall not be avoided by an allegation that the party was ignorant or in an error with regard to the law of prescription.

6. If a party has an exception, that destroys the natural as well as the perfect obligation, and, through error of law, makes a promise or contract that destroys such exception, he may avail himself of such error: but if the exception destroys only the perfect, but not the natural obligation, error of law shall not avail to restore the exception.

'VIII -- Of the Nullity Resulting from Fraud

OA 1847. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other. From which definition are drawn the following rules:

1. Error is an essential part of the definition; an article [artifice] that can not deceive can have no effect in influencing the consent, and can not injure the validity of the contract.

2. The error must be on a material part of the contract, that is to say, such part as may reasonably be presumed to have influenced the party in making it; but it needs [need] not be the principal cause of the contract, as it must be in the case of simple error without artifice.

3. A false assertion as to the value of that which is the object of the contract, is not such an artifice as will invalidate the agreement, provided the object is of such a nature and is in such a situation that he, who is induced to contract by means of the assertion, might with ordinary attention have detected the falsehood; he shall then be supposed to have been influenced more by his own judgment than the assertion of the other.

4. But a false assertion of the value or cost, or quality of the object, will constitute such artifice, if the object be one that requires particular skill or habit, or any difficult or inconvenient operation to discover the truth or any difficult or inconvenient operation to discover the truth or falsity of the assertion. Sales of articles falsely asserted to be composed of precious metals, sales of merchandise by a false invoice, of any article by a false sample, of goods in packages or bales, which can not without inconvenience be unpacked or inspected, or where the party making the sale avoids the inspection with intent to deeive, of goods at sea or at a distance, are, with others of a like nature, referable to this rule.

5. It must be caused or continued by artifice, by which is meant either an assertion of what is false, or a suppression of what is true, in relation to such part of the contract as is stated in the second rule.

6. The assertion and suppression, mentioned in the last preceding rule, mean not only an affirmation or negation by words either written or spoken, but any other means calculated to produce a belief of what is false, or an ignorance or disbelief of what is true.

7. The artifice must be designed to obtain either an unjust advantage to the party for whose benefit the artifice is carried on, or a loss or inconvenience to him against whom it is practiced, although attended with advantage to no one.

8. It is not necessary that either of the effects mentioned in the last preceding rule should have actually been produced: it is sufficient to constitute the fraud, that such would be the effect of the contract, if it were actually performed.

9. If the artifice be practiced by a party to the contract, or by another with his knowledge or by his procurement, it vitiates the contract; but if the artifice be practiced by a third person, without the knowledge of the party who benefits by it, the contract is not vitiated by the fraud, although it may be vold on account of error, if that error be of such a nature as to invalidate it; in this case the party injured may recover his damages against the person practicing the fraud.

10. In the words Aloss or inconvenience@ which may be suffered by the party, is included the preventing him from obtaining any gain or advantage, which, without the artifice, he might have obtained.

11. If the advantage to be gained by the party, in favor of whom the artifice is practiced, gives him no unjust advantage, that is to say, no advantage at the expense of the other party, and this latter would neither suffer inconvenience nor loss in consequence of the deception, if the contract were performed, the artifice does not vitiate it.

12. Combinations with respect to sales to enhance the price by false bids or offers, or to depress it by false assertions, are artifices, which invalidate the contract, when practiced by those who are parties to it, or give rise to an action for damages where they are not.

OA 1848. Fraud, like every other allegation, must be proved by him who alleges it, but it may be proved by simple presumptions or by legal presumptions, as well as by other evidence. The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence.

OA 1849. Some circumstances and acts attending particular contracts, are by law declared to be conclusive: and others presumptive evidence of fraud. These laws will be found in the proper divisious of this Code, treating of these contracts.

'IX -- Of the Want of Consent Arising from Violence or Threats

OA 1850. Consent to a contract is void, if it be produced by violence or threats, and the contract is invalid.

OA 1851. It is not every degree of violence or every kind of threats that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health, temper and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration.

OA 1852. A contract, produced by violence or threats, is void, although the party, in whose favor the contract is made, did not exercise the violence or make the threats, and although he were ignorant of them.

OA 1853. Violence or threats are causes of nullity, not only where they are exercised on the contracting party, but also when the wife, the husband, the descendants or ascendants of the party are the object of them.

OA 1854. The mere reverential fear of a relation in the ascending line, where no violence has been offered, nor threats made, will not invalidate a contract.

OA 1855. No contract can be invalidated on an allegation of violence or threats, if it has been approved, either expressly after the violence or danger has ceased, or tacitly by suffering the time limited [for prescription] to elapse without causing it to be rescinded.

OA 1856. If the violence used be only a legal constraint, or the threats only of doing

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that which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law and by the circumstances of the case, are of this description.

OA 1857. But the mere forms of law to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract, will invalidate it. An arrest without cause of action, or a demand of bail in an unreasonable sum, or threats of such proceeding, by this rule, invalidate a contract made under their pressure.

OA 1858. A contract made with one having no agency in the violence used, or the threats made for the purpose of delivering the party from the constraint under which he is, or from the danger with which he is menaced, shall not be invalidated by reason of such violence or threats, provided the contract be made in good faith and without collusion with the offending party. A contract to procure a rescue of person or goods from pirates or robbers, is an example of this rule.

OA 1859. All the above articles relate to cases where there may be some other motive, beside the violence tor threats, for making the contract. Where, however, there is no other cause for the contract, any threats, even of slight injury, will invalidate it.

'X -- Of Lesion

OA 1860. Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy given for this injury, is founded on its being the effect of implied error or imposition: for, in every commutative contract, equivalents are supposed to be given and received.

OA 1861. The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied error or imposition, except in the two following cases:

1. In partition where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one or [of] the parties;

2. In sales of immovable property, the vendor may be relieved, if the price given is less than one-half of the value of the thing sold; but the sale can not be invalidated for lesion to the injury of the purchaser.

OA 1862. Lesion can be alleged by persons of full age in no other sale than one for corporeal immovables. Amended by Acts 1978, No. 728, Sec. 2.

OA 1863. Persons of full age are relieved for lesion in no other contracts than those above expressed, except as hereinafter provided regarding the contract of exchange. Amended by Act 1940, No. 280.

OA 1864. Minors, not emancipated, are relievable against simple lesion in every species of contract. That is called simple lesion, in which the amount to be suffered by it, is not designated by law, as it is in the cases above mentioned of partition and sale between persons of full age.

OA 1865. As to such contracts as they are, by virtue of their emancipation, authorized to make, they are entitled to no other relief against lesion than if they were of full age. As to all other contracts, which they can make only under certain formalities, they are in the same situation with other minors, and may have relief for simple lesion, or prosecute the action of nullity against the contract.

OA 1866. Lesion needs not be alleged to invalidate such contracts as are made by minors, either without the intervention of their tutors, or with such intervention, but unattended by the forms perscribed by law. Such contracts, being void by law, may be declared so, either in a suit for nullity or on exception, without any other proof than that of the minority of the party and the want of formality in the act.

OA 1867. But in contracts made with minors, when duly authorized, and when all the forms of law have been pursued, on alleging and proving even simple lesion, they will be relieved with the exception of the cases provided for in the two next articles.

OA 1868. When all the formalities required by law for the alienation or the partition of the property of minors, or persons interdicted, have been fulfilled, the acts made for those purposes shall have the same force, as it they had been exeucted by persons of full age and sound mind.

OA 1869. No lesion whatever, even in the case of minors, can invalidate judicial sales, or sales of an insolvent's property made by syndics or other trustees. Sales of property belonging to successions or minors, directed or authorized by courts, are judicial sales under this provision.

OA 1870. When lesion is alleged to invalidate a partition or sale, the party alleging it must first prove the value of the property sold, in the state in which it was at the time of the contract, according to the usual terms of credit given on sales of property of that description. He must then show how much the price given was less than such value: but if the price given was paid at longer periods than those usually given on such sales, the interest for the time exceeding such usual credit must be deducted from such price; or, if the price was paid in shorter periods than those of such usual credit, then the interest for the time such payment has fallen short of the usual credit, shall be added to the price actually paid; and from a comparison of the price after these additions or deductions with the estimated value, the court shall determine whether according to law applied to the circumstances of the case, there is a lesion sufficient in invalidate the contract.

OA 1871. In all questions of lesion the value of that which was the subject of the contract at the time of making it, is the rule by which the lesion is to be ascertained. Even in the case of minors, changes in value by subsequent events are not to affect the contract.

OA 1872. If a minor should, at the time of the contract, declare himself of full age, it will be no bar to his obtaining relief against lesion.

OA 1873. A minor, who is a banker, factor, trader or artizan, is not relievable against lesion in contracts made for the purpose of his trade, or business, nor is he relievable against lesion in any of the stipulations of his marriage contract, if such contract be made with the consent and pursuant to the formalities in such case provided by law.

OA 1874. He is not relievable against obligations resulting from offenses or quasi offenses.

OA 1875. A ratification made by a person of full age of any contract made during his minority, cures all defects arising as well from the want of the necessary formalities as from the want of a proper consideration. No action for nullity or lesion can be brought after such ratification.

OA 1876. Actions for lesion are limited to four years, to date from the time of the contract between the persons of full age, and from the age of majority in contracts of minors.

OA 1877. In actions brought for relief against a sale or partition made between persons of full age, or in a like action, brought for lesion only, in a sale made by a minor or on his account, the purchaser may elect either to rescind the sale, or to have it confirmed on paying the full value. But this election must be made within a period to be designated in an interlocutory decree, determining the true value and the terms on which the payment is to be made.

OA 1878. If the purchaser elect to rescind the sale, he must restore the property with all the profits received, or which he might have received from the property from the time of bringing suit; and the seller shall repay the purchase money which he has received, with interest from the same time, give up and cancel the securities given for such part, if any, as remains unpaid; and moreover pay for such improvements made by the purchaser as add a permanent value to the property, according to their value at the time of the rescission of the sale.

OA 1879. The purchaser, on his part, in case of rescission, is accountable for all injuries and dilapidations arising from his neglect or fault.

OA 1880. The judge in pronouncing the final decree, shall make compensation between the parties of their respective demands, and determine what balance shall be paid, and by which of the parties, according to the principles stated in the preceding articles.

'XI -- General Provisions Applicable

to Error, Violence and Fraud in Contracts

OA 1881. Engagements made through error, violence, fraud or menance, are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, fraud, violence or menace, or by the representatives of such parties.

OA 1882. They may be avoided either by exception to suits brought on such contracts, or by an action brought for that purpose.

Section 3-- Of the Object and Matter of Contracts

OA 1883. Every contract has for its object something which one or both of the parties oblige themselves to give, or to do, or not to do.

OA 1884. The mere use, or the mere possession of a thing, may be, as well as the thing itself, the object of a contract.

OA 1885. All things, in the most extensive sense of the expression, corporeal or incorporeal, movable or immovable, to which rights can legally be acquired, may become the object of contracts.

OA 1886. An obligation must have for its object something determinate, at least as to its species.

The quantity of a thing may be uncertain, provided it be capable of belng ascertained.

OA 1887. Future things may be the object of an obligation.

One can not, however, renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succession, even with the consent of him whose succession is in question.

OA 1888. A future succession may become the object of an antenuptial agreement. Amended by Acts 1979, No. 711, Sec. 1.

OA 1889. No one can, by a contract in his own name, bind any one but himself or his representatives: but he may contract, in his own name, that another shall ratify or perform the stipulation which he makes, and in this case he shall be liable in damages, if the contract be not ratified or performed by the person for whose act he stipulates.

OA 1890. A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation: and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.

OA 1891. The object of a contract must be possible, by which is meant physically or morally possible. The possibility must be determined, not by the means or ability of the party to fulfill his agreement, but by the nature of the thing which forms the object of it.

OA 1892. That is considered as morally impossible, which is forbidden by law, or contrary to morals. All contracts having such an object are void.

Section 4 -- Of the Cause or Consideration of Contracts

OA 1893. An obligation without a cause, or with a false or unlawful cause, can have no effect.

OA 1894. An agreement is not the less valid, though the cause be not expressed.

OA 1895. The cause is unlawful, when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order.

OA 1896. By the cause of the contract, in this section, is meant the consideration or motive for making it; and a contract is said to be without a cause, whenever the party was in error, supposing that which was his inducement for contracting to exist, when in fact it had never existed, or had ceased to exist before the contract was made.

OA 1897. The contract is also considered as being without cause when the consideration for making it was something which, in the contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. A gift in consideration of a future marriage is void by this rule, if the marriage do not take place.

OA 1898. Where the consideration or cause of the contract really exists at the time of making it, but afterwards fails, it will not affect the contract, if all that was intended by the parties be carried into effect at the time. The destruction of property sold, after the sale is perfected, without the fault of the seller, is a case governed by this rule.

OA 1899. But, if the contract consists of several successive obligations to be performed at different times, and the equivalent is not given in advance for the whole, but is either expressly or impliedly promised to be given at future periods; then, if the cause of the contract, corresponding to either of the successive obligations, should fail, the obligation depending on it will cease also. Thus, in leases for years, the obligation to pay the yearly rent ceases, if the property which is leased should be destroyed.

OA 1900. If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration.

Chapter 3: Of the Effect of Obligations

Section 1: General Dispositions

OA 1901. Agreements legally entered into have the effect of laws on those who have formed them.

They can not be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.

They must be performed with good faith.

OA 1902. But a contract, in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, can not be revoked as to the advantage stipulated in his favor without his consent.

OA 1903. The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.

OA 1904. Contracts, as to their effects upon property or real rights, are of two kinds:

1. Such as purport a transfer of that which is the object of the contract.

2. Such as only give a temporary right to the enjoyment of it.

Section 2: Of the Obligation of Giving

OA 1905. The term to give, in this division of obligations, is applied only to corporeal objects, that may be actually delivered from one to another; and it includes the payntent of money as well as the delivery of any other article. A covenant, respecting an incorporeal right comes under the definition of contracts to do or not to do, because some act, besides that of delivery, is necessary for the transfer of such rights.

OA 1906. A contract for the delivery of a promissory note, payable to bearer, or payable to order, and already indorsed, or any other negotiable paper of the same nature, also indorsed, or transferable by delivery only, comes under the description of a contract to give: but a contract to transfer a note to order not indorsed, or any other debt that requires an act of transfer, is an obligation to do.

OA 1907. The obligation of giving includes that of delivering the thing, and of keeping if safe, until the delivery of it; the person who contracts to give being liable, on failure, to pay damages to the person with whom he has contracted.

OA 1908. The obligation of carefully keeping the thing, whether the object of the contract be solely the utility of one of the parties, or whether its object be their common utility, subjects the person who has the thing in his keeping to take all the care of it that could be expected from a prudent administrator.

This obligation is more or less extended with regard to certain contracts, the effects of which, in this respect, are explained under their respective titles.

OA 1909. If the obligation be to deliver an object which is particularly specified, it is perfect by the mere consent of the parties. It renders the creditor the owner, and although it be not delivered to him, puts the thing at his risk from the date of the obligation, if the contract is one of those that purport a transfer.

OA 1910. But if a debtor of a thing is in default for not having made the delivery, it is at his risk from the time of the default.

OA 1911. The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:

1. By the terms of the contract, when it especially provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure.

2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.

3. By the operation of law. This takes place in cases where the breach of the contract alone is by law declared to be equivalent to a default. The law having declared that the neglect to return a thing loaned for use, at a stipulated time, or the application of it to another use than the one for which it was lent, puts it at the risk of the borrower; this, without any act of the lender, puts the borrower in default, and forms an example of this part of the rule.

OA 1912. The effects of being put in default are not only that, in contracts to give, the thing, which is the object of the stipulation, is at the risk of the person in default; but in the cases hereinafter provided for it is a prerequisite to the recovery of damages and of profits and fruits, or to the recission of the contract.

OA 1913. In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the othe, the party who wishes to put the other in dafault, must, at the time and place expressed in, or implied by the agreement, offer or perform, as the contract requires, that which on his part was to be performed, otherwise the opposite party will not be legally put in default.

OA 1914. Although the contract be either not commutative, or, if commutative, the reciprocal obligations are not to be performed at the same time, yet the party wishing to put the other in default, must be himself ready, and must offer to receive the performance at the time and place stipulated in the contract or implied from the nature of the act to be done, and he can not avail himself of any demand at any other time or place; but if the obligation be to do or give any thing that may as well be given, or done at one time and place as at another, then the party failing may be put in default as well after as at the time the obligation becomes due. Promissory notes and bills of exchange are not governed by this rule, but by those of commercial law.

OA 1915. But if the object, contracted to be given, be not a thing particularly specified, but is uncertain, indeterminate, or described only by quantity or number, it is at the risk of the creditor only from the time he is in legal default for not receiving the thing after it has been tendered. A contract to deliver a certain number of bushels of wheat to pay a certain sum of money, or to ship a certain number of hogsheads of sugar, without further identification, comes under this rule.

OA 1916. There is an exception to the rule established in the last preceding article; when the object of the contract, although indeterminate in itself, makes part of a whole that is determinate and certain, and the whole, of which it forms a part, is lost or destroyed by inevitable accident before delivery, the loss will fall on the creditor of the thing sold. A sale of ten bales, of the hundred bales of cotton in a particular store, is an example of this rule; and if all the cotton be destroyed by fire, the accident will discharge the seller from the obligation of delivering it.

OA 1917. In the case provided for by the last article, it must appear that the designation of the mass, from which the particular object of the contract is to be taken, was intended by the parties as restrictive; that is to say, that their intention was confined to that particular property, and no other of the same kind. There such intent is not clearly expressed, it shall be presumed that no such restriction was intended; and the thing is at the risk of the debtor until delivery or default.

OA 1918. Although the contract contain an obligation to deliver, yet if it be one that does not purport a transfer of property, the thing is always at the risk of the obligor, provides there be no specific agreement to the contrary.

OA 1919. If the contract be complete, and be one that purports a transfer of the ownership of the property, its destruction before delivery or default does not exonerate the party who has [was] to have received it, from the performance or delivery of that which on his part was intended as the price or equivalent for such property.

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OA 1920. The rule that the obligation to deliver a determinate object is perfect by the mere consent of the parties, and that the obligee is the owner from the time of such contract, is without any exception as respects immovables, not only between the parties, but as to all the world, provided the contract be clothed with the formalities required by law, that it is bona fide, and purports to transfer the ownership of the property.

OA 1921. In cases, however, of contracts, which purport to transfer the ownership of immovable property, if he who transfers it is suffered by the obligee to remain in corporal possession for a longer time than is reasonably required to deliver the actual possession and to act as owner, to the injury of a third person, who may afterwards contract with him, or acquire rights upon his property as creditor, it will be considered as a mark of fraud, and will throw the burden of proving that the contract was made bona fide upon him to whom the ownership of the property was transferred by the first contract, in any controversy with creditors of the obligor or persons acquiring bona fide intermediate rights by contract with him.

OA 1922. With respect to movable effects, although, by the rule referred to in the two last preceding articles, the consent to transfer vests the ownership of the property in the obligee, yet this effect is strictly confined to the parties until actual delivery of the object if the vendor, being in possession, should, by a second contract, transfer the ownership of the property to another person, who gets the possession before the first obligee, the last transferee is considered as the owner, provided the contract be made on his part bona fide, and without notice of the former contract.

OA 1923. In like manner, if movable property has been alienated by contract, but not delivered, it is liable in the hands of the obligor to seizure and attachment, in behalf of his creditors.

OA 1924. What shall be considered a delivery of possession is determined by the rules of law, applicable to the situation and nature of the property.

OA 1925. If the contract be one of those that do not purport to transfer the ownership of the property, but only to give a right to the temporary enjoyment of it, the right to that enjoyment vests by the mere consent of the parties, in the same manner and subject to the same rules as are above laid down for contracts which purport to transfer the ownership of the property.

Section 3: Of the Obligations to Do, or Not to Do

OA 1926. On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.

OA 1927. In ordinary cases, the breach of such a contract entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the courts.

OA 1928. The obligee may require that any thing which has been done in violation of a contract, may be undone, if the nature of the cause will permit, and that things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the injured party to do it himself at the expense of the other, and may also add damages, if the justice of the case require it.

OA 1929. If the obligation be not to do, the obligee may also demand that the obligor be restrained from doing any thing in contravention of it, in cases where he proves an attempt to do the act covenanted against.

Section 4: Of the Damages Resulting

from the Inexecution of Obligations

OA 1930. The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.

OA 1931. A contract may be violated, either actively by doing something inconsistent with the obligation it has proposed or passively by not doing what was covenanted to be done, or not doing it at the time, or in the manner stipulated or implied from the nature of the contract.

OA 1932. When there is an active violation of the contract, damages are due from the moment the act of contravention has been done, and the creditor is under no obligation to put the debtor in default, in order to entitle him to his action.

OA 1933. When the breach has been passive only, damages are due from the time that the debtor has been put in default, in the manner directed in this chapter.

The rules contained in this and the preceding articles, however, are subject to the following exceptions and modifications:

1. When the thing to be given or done by the contract was of such a nature, that it could only be given or done withln a certain time, which has elapsed, or under certain circumstances, which no longer exist, the debtor need not be put in legal delay to entitle the creditor to damages.

2. Where, by a fortuitous event or irresistible force, the debtor is hindered from giving or doing what he has contracted to give or do or is from the same causes compelled to do what the contract bound him not to do, no damages can be recovered for the inexecution of the contract.

3. There are two exceptions to the last rule: first, when the party in default has by his contract expressly or impliedly undertaken the risk of the fortuitous event, or of the irresistible force; secondly, if the fortuitous event, or case of force, was preceded by some fault of the debtor, without which the loss would not have happened.

4. Although the responsibility of the debtor for the object he was bound to deliver, is incurred from the moment he is put in default, yet if it is lost by some fortuitous event or irresistible force, by which it would also have been lost had it been in the hands of the creditor, the debtor is not answerable for the value, but only for the delay.

OA 1934. Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:

1. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule, is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will.

2. When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of the contract; but even when there is fraud, the damages can not exceed this.

3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach: a contract for a religious or charitable foundation, a promise of marriage, or an engagement for the work of some of the fine arts, are objects and examples of this rule.

In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.

4. If the creditor be guilty of any bad faith, which retards or prevents the execution of the contract, or if, at the time of making it, he knew of any facts that must prevent or delay its performance, and concealed them from the debtor, he is not entitled to damages.

1. Where the parties, by their contract, have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is executed in part, the damages agreed on by the parties may be reduced to the loss really suffered, and the gain of which the party has been deprived, unless there has been an express agreement that the sum fixed by the contract shall be paid, even on a partial breach of the agreement.

OA 1935. The damages due for delay in the performance of an obligation to pay ntoney are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.

OA 1936. Interest is of two kinds, conventional and legal: the rate of both is fixed by law in the chapter on loans on interest and the Louisiana Consumer Credit Law. Amended by Acts 1972, No. 454, Sec. 6.

OA 1937. In contracts stipulating a conventional interest, it is due without demand, from the time stipulated for its commencement until the principal is paid.

OA 1938. All debts shall bear interest at the rate of twelve percent per annum from the time they beconie due, unless otherwise stipulated. Amended by Acts 1970, No. 315, Sec. 1; Acts 1980, No. 402, Sec. 1: Acts 1981, No. 574, Sec. 1; Acts 1981, No. 639, Sec. 1; Acts 1982, No. 142, Sec. 1.

OA 1939. Interest upon interest cannot be recovered unless it be added to the principal, and by another contract made a new debt, subject to the following exceptions:

2. As provided by the Louisiana Consumer Credit Law, or as specifically provided by law.

2. In loans made for agricultural purposes.

3. In matters preempted by federal law or by rules and regulations of federal agencies, including but not limited to the Federal Home Loan Bank, Federal Savings and Loan Insurance Corporation, Comptroller of the Currency, and the Federal Deposit Insurance Corporation.

4. As provided in rules or regulations promulgated by the commissioner of financial institutions for supervised financial organizations as provided by R.S. 6:25.1.

Subject to the exceptions in this article, no stipulation in the original contract authorizing recovery of interest upon interest is valid.

The provisions of thls article shall be held to apply to all persons, partnerships, and corporations irrespective of custom or of the character of business in which they are engaged. Amended by Acts 1924, No. 161; Acts 1972, No. 454, Sec. 7; Acts 1981, No. 822, Sec. 1; Acts 1982, No. 673, Sec. 1.

OA 1940. In cases where no conventional interest is stipulated, the legal interest, at the time the contract was made, shall be recovered, although the rate may have been subsequently changed by law.

OA 1941. The surety, who is obliged to pay money for his principal, is not bound by the preceding rule respecting interest on interest; he shall receive interest on the whole sum he has paid, whether for principal or interest from the time of the payment, without any demand.

OA 1942. The interest on loans, on bottomry and respondentia, may also exceed the rate of legal or conventional interest.

OA 1943. The debtor is liable only to such damages as were foreseen, or might have been foreseen at the time of contracting, when it is not owing to his fraud that the obligation has not been executed.

OA 1944. Sums, which are due for yearly rents, for annuities, either forever or for life, bear interest from the day they become due, either by the terms of his agreement or otherwise. The same rule applies to sums due for the restitution of fruits, or for interest paid by a third person in discharge of the debtor.

Section 5: of the Interpretation of Agreements

OA 1945. Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:

First

-- That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;

Second

-- That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;

Third B

That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;

Fourth

-- That it is the common intent of the parties - that is, the intention of all that is to be sought for: if there was a difference in this intent, there was no common consent and, consequently, no contract. Amended by Acts 1871, No. 87.

OA 1946. The words of a contract are to be understood, like those of a law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use.

OA 1947. Terms of art or technical phrases are to be interpreted according to their received meaning with those who profess the art or profession to which they belong.

OA 1948. When there is a doubt as to the true sense of the words of a contract, they may be explained by referring to other words or phrases used in making the same contract.

OA 1949. When there is anything doubtful in one contract, it may be explained by referring to other contracts or agreements made on the same subject between the same parties, before or after the agreement in question.

OA 1950. When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.

OA 1951. When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory.

OA 1952. Terms, that present two meanings, must be taken in the sense most congruous to the matter of the contract.

OA 1953. Whatever is ambiguous is determined according to the usage of the country where the contract is made.

OA 1954. In contracts, the clauses in common use must be supplied, though they be not expressed.

OA 1955. All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.

OA 1956. When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.

OA 1957. In a doubtful case the agreement is interpreted against him who has contracted the obligation. Amendment by Acts 1871, No. 87.

OA 1958. But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whehter he be obligor or obligee.

OA 1959. llowever general be the terms in which a contract is couched, it extends only to the things concerning which it appears that the parties intended to contract.

OA 1960. But when the object of the contract is an aggregate composed of many or of different articles, there the general description or aggregate name will include all the particular articles which enter into the composition of the whole, although they were not specified, or were even unknown to both or either of the parties. A release of a share in a succession, under this rule, shall not be set aside on an allegation that the succession contained more or less than was supposed; where there is concealment, however, or fraud, it would be void under other rules before laid down.

OA 1961. The rule, laid down in the last article, must also be taken with the further modification that, although the aggregate appellation or description be used, yet if by some other part of the contract, it appears that the intent of the parties was not to include the whole, but only that part of which they had notice, such evident intent shall correct the universality of the description. Thus, in a release of a whole share in a succession, if there be a reference to an inventory as descriptive of what that share is, the contract, notwithstanding the general terms, shall be confined to what is contained in the inventory.

OA 1962. When a contract contains general obligations, and the parties, in order to avoid a doubt whether a partieular case comes within the scope of the agreement, have made special provision for such case, the general terms of the contract shall not on this account be restricted to the single case that is provided for.

Section 6: Of the Obligations to Perform,

as Incidents to a Contract All that is Required

by Equity, Usage, or Law.

OA 1963. When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some prohibition or other provision, which the parties had not right to modify or renounce.

OA 1964. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.

OA 1965. The equity intended by this rule is founded in the christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.

OA 1966. By the word usage mentioned in the preceding articles, is meant that which is generally practiced in affairs of the same nature with that which forms the subject of the contract.

House rent in some cities is generally paid by the month; in others by the quarter. In a contract for the hire of a house, without expressing when the rent was to be paid, the deficiency would be supplied by proof of the usage, but if a contrary intent appear in the contract, the usage would not contravene it.

OA 1967. The law, intended by the rule before referred to, menas such legislative provisions as provide for those cases in which the parties have not declared their intention. When the contracting parties have not derogated from such law, its provisions are to be followed. The laws directing a community of matrimonial gains and a warranty on sales, are examples of this kind of legislative provision [provisions], which take effect and regulate the contract when the parties make no agreement that contravene them.

Section 7: What Contracts Shall Be Avoided

by Persons not Parties to Them

OA 1968. Contracts, considered with respect to their operation on property, either purport to transfer ownership or to give some determinate right upon it. A sale or exchange is an example of the first, a pledge or mortgage of the second of these species of contracts. There is a third right implied in all obligations, to wit: That the property of the debtor shall be liable for all consequences attending their non-performance; but this right can not be exercised, unless the contract be broken, nor until judgment be obtained for the recovery of what is due in consequence of its breach.

OA 1969. From the principle established by the last preceding article, it results that every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal, and ought, as respects such creditor, to be avoided. This can be done in the mode and under the circumstances set forth in the following rules.

'I -- Of the Action of the Creditors in Avoidance

of Contract, and its Incidents

OA 1970. The law gives to every creditor, when there is no cession of goods, as well as to the representatives of all the creditors where there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights.

OA 1971. This action can only be exercised when the debtor has not property sufficient to pay the debt of the complaining creditor, or of all his creditors where there has been a cession, or any proceeding analogous thereto.

OA 1972. It can not be exercised by individual creditors, until their debts are liquidated by a judgment, unless the defendant in such action be made party to the suit for liquidating the debt brought against the original debtor in the manner hereinafter directed.

OA 1973. The defendant in such action may demand a discussion of the property belonging to the original debtor, before any judgment shall be pronounced In the suit to avoid the contract; and on his pointing out and proving the existence of such property situate within this State, and the title to which is not in dispute, the suit against him shall be staid until such property shall be dismissed, and if the result of this discussion be that the property pointed out is not applicable to the payment of the plaintiff, the defendant shall bear all the expenses of the same.

OA 1974. If, during the pendency of the action given by this section, the original debtor discharges the debt due to the plaintiff, or acquires the property applicable to its payment and sufficient in amount, such action can no longer be sustained, it being the true intent of the law that a contract avoidable by creditors under this section can not, on that account, be avoided by either of the parties.

OA 1975. The plaintiff in the action given in this section may join the suit for annulling the contract to that which he brings against the original debtor for liquidating his debt by a judgment, and in such suit either of the defendants may controvert the demand of the plaintiff.

OA 1976. When the defendant in the action given by this seciton has not been made party to the suit against the original debtor, he may controvert the demand of the plaintiff, although it be liquidated by a judgment, in the same manner that the debtor might have done before the judgment.

OA 1977. The judgment in this action, it maintained, shall be that the contract be avoided as to its effects on the complaining creditors, and that all the property or money taken from the original debtor's estate, by virtue thereof, or the value of such property to the amount of the debt, be applied to the payment of the plaintiff.

'II -- What Contracts Shall Be Avoided by this Action

OA 1978. No contract shall be avoided by this action but such as are made in fraud of creditors, and such as, if carried into execution, would have the effect of defrauding them. If made in good faith, it can not be annulled, although it prove injurious to the creditors; and although made in bad faith, it can not be rescinded, unless it operate to their injury.

OA 1979. If the contract be onerous, and the original debtor made it with intent to defraud his creditors, but the person, with whom he contracted, was in good faith, the contract can not be annulled, except under the circumstances and in the manner hereinafter provided.

OA 1980. If the contract be purely gratuitous, it shall be presumed to have been made in fraud of creditors, if, at the time of making it, the debtor had not over and above the amot:nt of his debts, more than twice the amount of the property passed by such gratuitous contract.

OA 1981. If the contract be onerous, but made in fraud on the part of the debtor, but in good faith on the part of the person with whom he contracted, if the value of the property transferred by such contract exceed by one-fifth the price or consideration given for it, the creditors may annul the contract, and take back the property on paying the price or the value of the consideration with interest, but in this case they shall not receive the fruits.

OA 1982. If the party, with whom the debtor contracted be in fraud as well as the debtor, he shall not, on the annulling the contract be entitled to a restitution of the price or consideration he may have paid, except for so much as he shall prove has inured to the benefit of the creditors by adding to the amount of property applicable to the payment of their debts; but if the only consideration be a sum due from such debtor to the party with whom he contracted, then the only restitution to be made is the placing the parties in the situation in which they were before the contract complained of was niade.

OA 1983. But if such fraud consisted merely in the endeavor to obtain a preference over other creditors, for the securing of payment of a just debt, under circumstances in which by law the endeavor to obtaln such preference is declared to be a constructive fraud in such case the party shall only lose the advantage endeavored to be secured by such contract, and shall be reimbursed what he may have given or paid, but without interest: and he shall restore all advantages he has received from the transaction.

OA 1984. Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor.

OA 1985. By being in insolvent circumstances is meant, that the whole property and credits are not equal in amouant, at a fair appraisement, to the debts due by the party. And it he, who alleges the insolvency shows the amount of debts, it is incumbent on the other party to show property to an equal or greater amount. To prove the state of his affairs at the period of the contract, the debtor may, at the option of the plaintiff, be examined as a witness in the action for annulling the contract.

OA 1986. No sale of property, or other contract made in the usual course of the party's business, nor any payment of a just debt in money, shall be affected by virtue of any provision in this section, although the party was in insolvent circumstances, and the person with whom he contracted, or to whom he made the payment, knew of such insolvency.

OA 1987. No contract made between the debtor and one of his creditors for the purpose of securing a just debt, shall be set aside under this section, although the debtor were insolvent to the knowledge of the creditor with whom he contracted, and although the other creditors are injured thereby, if such contract were made more than one year before bringing the suit to avoid it, and if it contain no other cause of nullity than the preference given to one creditor over another.

OA 1988. If a debtor, in insolvent circumstances, shall anticipate the payment of a debt not yet payable, and shall make this payment to the injury of the creditors whose debts were either then due, or would fall due before that of which he anticipated the payment, this shall be deemed to have been done in fraud of the creditors, and the creditor so preferred shall be obliged to share the loss ratably with the complaining creditors, each creditor, however, preserving the right of mortgage or privilege, if any, which his original debt gave him by law.

OA 1989. Not only contracts which dispose of property, but all others which are made in fraud of creditors, and deprive them of their recourse to the property of their debtor, come within the provisions of this section. The renunciation of a succession or other right to property, the release of a debt without payment, or any other act of this kind, may be avoided by creditors, when done to their prejudice, under the rules above established.

OA 1990. In case the debtor refuse or neglect to accept an inheritance to the prejudice of his creditors, they may accept the same, and exercise all his rights in the manner provided for in the title of successions, and they are authorized, by virtue of the action given by this section, to exercise all the rights existing in favor of the debtor for recovering possession of the property to which he is entitled, in order to make the same available to the payment of their debts.

OA 1991. There are rights of the debtor, however, which the creditor [creditors] can not exercise, even should he refuse to avail himself of them.

They can not require the separation of property between husband and wife; nor can they oblige their debtor to accept a donation inter vivos made to him, nor can they accept it in his stead. Neither can they call on a coheir of the debtor to collate, when such debtor has not exercised that right.

OA 1992. There are also rights which are merely personal, that cannot be made liable to the payment of debts, and therefore no contract respecting them comes within the provision of this section; these are the rights of habitation, of usufruct of the estate of a minor child, and the right to money due for the salary of an office, or wages, or recompense for personal services. Amended by Acts 1979, No. 711, Sec. 1.

OA 1993. No creditor can, by the action given by this section, sue individually to annul any contract made before the time his debt accrued.

OA 1994. The action given by this section, is limited to one year: if brought by a creditor individually, to be counted from the time he has obtained judgment against the debtor: If brought by syndics or other representatives of the creditors collectively, to be counted from the day of their appointment.

Chapter 4: Of the Different Kinds of Obligations

Section 1: General Division of the Subject

OA 1995. The preceding chapters of this title have established rules applicable to contracts in general: this contains an enumeration of such obligations as are usually inserted In different contracts, and the following chapters show how they may be formed, proved and extinguished. Subsequent titles enumerate the different kinds of contracts into which the general obligations may enter, and provide rules for their government.

OA 1996. Independent of the division of obligations contained in the first chapter of this title, those that usually enter into particular contracts, may be further distinguished by the following classification:

Those which are strictly personal, or heritable, or real;

Simple or conditional;

Limited or unlimited as to the time of performance;

Disjunctive or alternative;

In relation to the parties, joint, several, or in solido;

In their nature, divisible or indivisible;

As to their form, penal or not penal.

Each of these divisions forms the subject of a different section of this chapter.

Section 2: Of Strictly Personal, Heritable and Real Obligations

OA 1997. An obligation is strictly personal, when none but the obligee can enforce the performance, or when it can be enforced only against the obligor.

It is heritable when the heirs and assigns of the one party may enforce the performance against the heirs of the other.

It is real when it is attached to immovable property, and passes with it into whatever hands it may come, without making the third possessor personally responsible.

OA 1998. An obligation may be personal as to the obligee, and heritable as to the obligor, and it may in like manner be heritable as to the obligee, and personal as to the obligor.

OA 1999. Every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed, or necessarily implied from the nature of the contract.

OA 2000. The obligation shall be presumed to be personal on the part of the obligor, whenever, in a contract to do, he undertakes to perform any thing that requires his personal skill or attention: in this case, if that, which was to be done, was not solely and exclusively for the use or gratification of the obligee, the obligation, although personal as to the obligor, will be heritable against the heirs of the obligee for the equivalent to be paid or given for that which was to be done.

OA 2001. The obligation shall be presumed to be personal as to the obligee, in a contract to do or to give, when that which was to be done or given, was exclusively for the personal gratification of the obligee, and could produce no benefit to his heirs.

OA 2002. In case of obligations purely personal as to the obligor, if he have received an equivalent that can be appreciated in money as a consideration, but dies before performance of his obligation, his heirs may be obliged to restore it or its value.

OA 2003. In like manner, if the obligation be purely personal as to the obligee who dies before performance, his heirs may recover from the obligor the value of any equivalent he may have received.

OA 2004. An obligation to pay an annuity to a certain person during the life of the obligor, is personal as to both, and is extinguished by the death of either.

OA 2005. A merely personal obligation to do, imposed by testament as the condition on which a legacy is to take effect, is void, if the legatee die before performance, or before he has been put in default; but the legacy will take effect.

OA 2006. But if what is to be done, be a thing that can as well be done by the heirs of the legatee as by him, the obligation shall be heritable, and they must perform it before the legacy can take effect. The provisions of this and the preceding article relate only to testamentary dispositions.

OA 2007. All contracts for the hire of labor, skill or industry, without any distinction, whether they can be as well performed by any other as by the obligor, unless there be some special agreen:ent to the contrary, are considered as personal on the part of the obligor, but heritable on the part of the obligee.

Contracts of mandate and partnership are mutually personal.

OA 2008. Heritable obligations and stipulations give to and impose upon heirs, assigns, and other representatives, the same duties and rights that the original parties had and were liable to, except that beneficiary heirs can only be liable to the amount of the succession.

OA 2009. All rights, acquired by a heritable obligation, may be assigned: this assignment may be made, expressly by contract granting such right, or impliedly by the conveyance of the property to which they are attached.

OA 2010. When obligations are attached to immovable property, they form the third branch of the first division of obligations of this chapter, and are called real obligations.

OA 2011. Not only the obligation, but the right resulting from a contract relative to immovable property, passes with the property. Thus the right of servitude in favor of immovable property, passes with it, and thus also the heir or other acquirer will have the right to enforce a contract made for the improvement of the property by the person form whom he acquired it.

OA 2012. Real obligations may be created in three ways:

1. By the alienation of immovable property, subject to a real condition, either expressed or implied by law.

2. By alienating to one person the immovable property, and to another, some real right to be exercised upon it.

3. By the creation of a right of mortgage upon the immovable property.

All these contracts give rise to obligations purely real on the part of those who acquire the land, under whatever species of title they possess it; they are not personally liable, but the real property is, and, by abandoning it to the obligee, they relieve themselves froni all responsibility.

A sale subject to a rent charge, or to a right of redemption as consideration of the sale, are examples of the first kind of obligations; servitudes, the right of use and habitation and usufruct, are examples of the second; and the several kinds of niortgages, and the creation of a rent charge, of the third.

OA 2013. The real obligation, created by condition annexed to the alienation of real property, is susceptible of all the modifications that the will of the parties can suggest, except such as are forbidden by law. These conditions are either conditions precedent, which suspend the operation of the contract until they are performed, or subsequent and resolutory, which, unless they are performed, annul the contract. These will be more fully defined in the scction which treats of conditional obligations.

OA 2014. There are also conditions implied by law, which create a real obligation: such as the obligation to pay the price to the seller, and to furnish roads to the public.

OA 2015. Not only servitudes, but leases and all other rights, which the owner had imposed on his land before the alienation of the soil, form real obligations which accompany it in the hands of the person who acquires it, although he have made no stipulation on the subject, or they be not mentioned in the act of transfer. The purchaser may, if the circumstances permit it, have relief against the seller for concealment of such charges: but the law establishes the rule that no one can transfer a greater right than he himself has, except where the neglect of some formallty required by law has subjected the owner of the real incumbrance to a loss of his right, in favor of a creditor or bona fide purchaser.

OA 2016. The several kinds of mortgages, which create a real obligation, and the rules to which they are subject, will be found in the corresponding title of this book.

OA 2017. A rent charge, created by way of condition to the alienation of the property, has been hereinbefore explained. But a rent charge may be created and imposed on particular property, independent of any alienation of it, for the security or extinguishment of a debt; and it may be perpetual or temporary, and, in either case, forms a real obligation, which passes with the land.

OA 2018. By the constitution of rent charge, the possession of the property does not pass to the obligee: it is merely a designation of the property, which is subject to the obligation. Should the possession be delivered, it becomes another species of contract, called antichresis, the rules relative to which are found under the proper head.

OA 2019. Considered with respect to those who have contracted them, some real obligations are also personal; such are those created by mortgage for the payment of a debt. Others are strictly real, both as to the contracting party and his heirs or other successors A mortgage given to secure the debt of another, without any obligation of personal responsibility, is an example of this latter kind. But no real obligation is personal, as to a subsequent possessor of the property on which it is created, unless he has made it such by his own act.

Section 3: Of Simple and Conditional Obligations

'1 B General Provisions

OA 2020. 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.

OA 2021. Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition: if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.

OA 2022. Conditions, whether suspensive or resolutory, are either casual, potestative or mixed.

OA 2023. The casual condition is that which depends on chance, and is no way in the power either of the creditor or of the debtor.

OA 2024. The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.

OA 2025. 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 event.

OA 2026. Conditions are either express or implied. They are express, when they appear in the contract; they are implied, whenever they result from the operation of law, from the nature of the contract, or from the presumed intent of the parties.

OA 2027. Whether the parties intended to create a condition or only to modify the obligation without making its existence depend on the event, must be determined, in doubtful cases, by applying the rules hereinbefore established for the interpretation of obligations.

OA 2028. The contract of which the condition forms a part is, like all others, complete by the assent of the parties: the obligee has a right of which the obligor can not deprive him: its exercise is only suspended, or may be defeated, according to the nature of the condition.

OA 2029. The right, described in the last preceding article, is heritable, if it be not one of those that result from an obligation designated in the preceding section as a personal onc.

OA 2030. The right acquired by a legatee under a conditional bequest, is the same as that given to an obligee by contract, and creates a corresponding obligation on the heirs to deliver the legacy on the happening of the condition. But there is this difference, that (except the case provided for in the last preceding section, of the condition to do a merely persona! act). the right is not transmitted to the heirs of the legatee, in case he die before the condition happens, unless the testator has expressed a different intention.

OA 2031. Every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct) or prohibited by law, is null, and renders void the agreement which depends on it.

OA 2032. The condition not to do a thing impossible, does not render void the obligation contracted under that condition.

OA 2033. Physical and moral impossibilities only are intended by the preceding articles. If the condition be only relatively impossible, that is to say, impracticable by the obligor, only from the want of skill, strength or means, but practicable by another, it is not an impossible condition.

OA 2034. Every obligation is null, that has been contracted, on a potestative condition, on the part of him who binds himself.

OA 2035. The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor's will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not void.

OA 2036 An obligation may also be made, by consent of the parties, to depend on the will of the obligee for its duration. Thus a lease may be made during the will of the lessor, and a sale may be made conditioned to be void, if the vendor chooses to redeem the property sold.

OA 2037. Every condition must be performed in the manner that it is probable that the parties wished and intended that it should be.

OA 2038. When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place. If there be no time fixed, the condition may always be performed, and it is not considered as broken, until it is become certain that the event will not happen.

OA 2039. When an obligation has been contracted, on condition that a particular event shall not happen within a certain space of time, that condition is fulfilled, when that time is elapsed without the event's having taken place; it is equally fulfilled, if, before the expiration of the time, it be certain that the event will not take place; and if the time be not fixed, the condition is not complied with, until it be certain that the event will not happen.

OA 2040. The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.

OA 2041. The condition being complied with, has a retrospective effect to the day that the engagement was contracted; if the creditor dies before the accomplishment of the condition, his rights devolve on his heirs.

OA 2042. The creditor may, before the fulfullment of the condition, perform all acts conservatory of his rights.

'II -- Of the Suspensive Condition

OA 2043. The obligation contracted on a suspensive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.

In the former case, the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day on which it was contracted, but it can not be enforced until the event be known.

OA 2044. When the obligation has been contracted on a suspensive condition, the thing, which forms the subject of the contract, is at the risk of the obligor, until the event which forms the condition has happened, subject however to the following restrictions and modifications of his responsibility:

If the thing be entirely destroyed, without the fault of the debtor, the obligation is extinguished.

If the thing be impaired, without the fault of the debtor, it is at the option of the creditor, either to dissolve the obligation, or to require the thing in the state in which it is, without diminution of the price.

If the thing be impaired, through the fault of the debtor, the creditor has a right to dissolve the obligation, or to require the thing in the state in which it is, with damages.

Section 3: Of the Resolutory Condition

OA 2045. The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.

It does not suspend the execution of the obligation; it only obliges the creditor to restore what he has received, in case the event provided for in the condition takes place.

OA 2046. A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract ntay either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance.

OA 2047. In all cases the dissolution of a contract may be demanded by suit or by exception; and when the resolutory condition is an event, not depending on the will of either party, the contract is dissolved of right; but, in other cases, it must be sued for, and the party in default may, according to circumstances, have a further time allowed for the performance of the condition.

Section 4-- Of Limited and Unlimited Obligations,

as to the Time of Their Performance

OA 2048. The time given or limited for the performance of an obligation, is called its term.

OA 2049. A term may not only consist of a determinate lapse of time, but also of an event, provided that event be in the course of nature, certain; if it be uncertain, it forms a condition.

OA 2050. When no term is fixed by the parties for the performance of the obligation, it may be executed inimediately, unless, from the nature of the act, a term, either certain or uncertain, must be applied [supplied]. Thus, an obligation to pay money, without any stipulation for time, may be enforced at the will of the obligee. But a promise to make a crop of sugar is necessarily deferred, until the uncertain period when the cane shall be fit to cut.

OA 2051. The term differs from the condition, inasmuch as it does not suspend the engagement, but only retards its execution.

OA 2052. What is due only at a certain time, can not be demanded before the expiration of the intermediate time; but what has been paid in advance can not be redemanded.

OA 2053. The term is always presumed to be stipulated in favor of the debtor, unless it result from the stipulation, or from circumstances, that it was also agreed upon in favor of the creditor.

OA 2054. Wherever there is a cession of property, either voluntary or forced, all debts due by the insolvent shall be deemed to be due, although contracted to be paid at a term not yet arrived: but in such case, a discount must be made of the interest at the highest conventional rate, if none has been agreed by the contract.

OA 2055. If a debt be contracted to be paid at a term, and a security be given for the payment, if, from whatever cause, the security should fail, or be rendered insufficient, the creditor may, before the obligation is due, exact either that good security be given or that the debt be immediately paid.

OA 2056. If the contract be to give good security, and a person be afterwards given as such security who fails, the provision of the last preceding article takes effect; but when security is given of a determinate person, then there is no action given on the failure of the surety.

OA 2057. Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligation, unless the object of the contract can not be done after certain hours of that day.

OA 2058. When the contract is to do the act in a certain number of days, or in a certain number of days after the date of the contract, the day of contract is not included in the number of days to be counted, and the obligor has until sunset of the last day of the number enumerated for the performance of his contract, with the exception contained in the last preceding article.

OA 2059. Where the obligation is not to do a thing without a notice of a certain number of days, or until after so many days, neither the day of the contract nor the day of its performance are calculated.

OA 2060. Where the term referred to by the contract consists of one or more months, the parties, if they have not made any other explanation, shall be deemed to have meant months, in the order in which they stand in the calendar after the date of the obligation, and with the number of days such months respectively have.

OA 2061. Where the term, referred to in the contract, consists of one or more years, the calendar year shall be presumed to have been intended. Amended by Acts 1871, No. 87.

Section 5 -- Of Conjunctive and Alternative Obligations

OA 2062. When several different things form the object of a contract, it is either conjunctive or alternative.

OA 2063. A conjunctive obligation is one in which the several objects in it are connected by a copulative, or in any other manner which shows that all of them are severally comprised in the contract. This contract creates as many different obligations as there are different objects; and the debtor when he wishes to discharge himself, may free the creditor to receive them separately.

OA 2064. But if several things be comprehended in one general name in the contract, it is not conjunctive. The sale of a flock of sheep, or the stock on a farm, are examples of this exception.

OA 2065. Where a sum is promised to be paid at different installments, a conjunctive obligation is created, and the payment may be severally paid or enforced. Rents, payable at fixed periods, come also under this rule.

OA 2066. But where the things, which form the object of the contract, are separated by a disjunctive, then the obligation is alternative. A promise to deliver a certain thing, or to pay a specified sum of money, is an example of this kind of obligation.

OA 2067. The debtor in an alternative obligation is discharged by the delivery of one of the two things that were comprised in the obligation.

OA 2068. The option belongs to the debtor, unless it has been expressly granted to the creditor.

OA 2069. The debtor may exonerate himself by delivering one of the two things promised, but he can not force the creditor to receive a part of the one, and a part of the other.

OA 2070. The obligation is pure and simple, although contracted in an alternative manner, if one of the two things promised could not be the object of the obligation.

OA 2071. The alternative obligation becomes Pure and simple if one of the things promised be destroyed, even through the fault of the debtor, or can no longer be delivered. The price of that thing can not be offered in its stead.

If both the things be destroyed, and the debtor be in fault with regard to one of them, he must pay the price of that one which was destroyed the last.

OA 2072. When, in the cases provided for in the preceding article, the option was given by agreement to the creditor; either only one of the things is destroyed: and then, if it be without the fault of the debtor, the creditor must have that one which remains; if the debtor be in fault, the creditor may demand the thing that remains, or the price of that which is destroyed:

Or both of the things are destroyed; and then, if the debtor be in fault with regard to both, or even with regard to one of them alone, the creditor has his option to demand the price of either of them.

OA 2073. If both the things be destroyed without the fault of the debtor and before he has delayed the delivery, the obligation becomes extinct.

OA 2074. The same principles apply to cases where there are more than two things comprised in the alternative obligation.

OA 2075. Where several alternative obligations are divided for their execution by different terms, there the election of one alternative for one of the terms does not oblige the parties to make the same election for the others.

OA 2076. If an obligation or testamentary disposition be made to different obligees, or legatees, or heirs, in the alternative, such obligation shall be deemed to proceed from error in wording of the obligation or will, and shall be construed conjunctively.

Section 6: Of Several Obligations, Joint Obligations,

and Obligations In Solido

'I -- General Provisions

OA 2077. Where there are more than one obllgor or obligee named in the same contract, the obligation it ntay produce may be either several or joint or in solido, both as regards the obligor and the obligee.

OA 2078. Several obligations are produced, when what is promised by one of the obligors, is not promised by the other, but each one promises separately for himself to do a distinct act; such obligations, although they may be contained in the same contract, are considered as much individual and distinct as if they had been in different contracts, and made at different times.

OA 2079. In like manner, a contract may contain distinct obligations to perform different things in favor of several persons; the obligations in this case are several and unconnected, and each obligee has his separate and distinct remedy on the obligation created towards him individually.

OA 2080. When several persons join in the same contract to do the same thing, it produces a joint obligation on the part of the obligors.

OA 2081. When one or more persons make an obligation to several persons for the performance of something for the common benefit of all the obligees, it creates an obligation which is joint in favor of the obligees.

OA 2082. When several persons obligate themselves to the obligee by the terms in solido, or use any other expressions, which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in solido on the part of the obligors[.]

OA 2083. In like manner, when the obligor contracts expressly, or by using the technical words in solido, that he will give to either one, or to all of several obligees the right of enforcing the obligation against him, it creates an obligation in solido in favor of the obligees.

'II -- Of the Rules Which Govern

Several Obligations, and Joint Obligations

OA 2084. Several obligations, although created by one act, have no other effects than the same obligations would have had, if made by separate contracts; therefore they are governed by the rules which apply to all contracts in general.

OA 2085. In every suit on a joint contract, all the obligors must be made defendants, and no judgment can be obtained against any, unless it be proved that all joined in the obligation, or are by law presumed to have done so.

OA 2086. In a suit on a joint obligation, judgment must be rendered against each defendant separately, for his proportion of the debt or damages, if the suit resolves itself into damages. If the suit be for a specific performance, each defendant may be compelled to execute his proportion of the obligation, if the nature of the case permit and justice require it. The proportion, meant by this and the succeeding articles, is calculated by the number of the obligors, each one answering for an equal part, unless the parties have expressed a different intention.

OA 2087. If one of the obligors in a joint obligation has performed or discharged his part of the obligation, although he must be joined in the suit, on account of the eventual interest he has for the repetition of his payment, if the contract be disproved or annulled: yet, if the contract be affirmed, the defendant, who has paid his proportion or performed his part, shall have judgment. The judgment for the costs is in solido against all the defendants who have not paid or performed their parts.

'III -- Of the Rules Which Govern Obligations

Between Creditors in Solido

OA 2088. The obligation is in solido, or joint and several between several creditors, when the title expressly gives to each of them the right of demanding payment of the total of what is due, and when the payment made to any one of them discharges the debtor, although the benefit of the obligation be to be shared and divided among the different creditors.

OA 2089. It is at the option of the debtor to pay any one of the creditors in solido, as long as he has not been prevented by a suit instituted by one of them.

Yet if one of the creditors in solido remits the debt, the debtor is hereby exonerated only as to the part coming to that individual creditor.

OA 2090. Every act, which interrupts prescription with regard to one of the creditors in solido, avails the other creditor [creditors].

'IV -- Of the Rules Which Govern Obligations

with Respect to Debtors in Solido

OA 2091. There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.

OA 2092. The obligation may be in solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other.

OA 2093. An obligation in solido is not presumed; it must be expressly stipulated.

This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.

OA 2094 The creditor of an obligation contracted in solido may apply to any one of the debtors he pleases, without the debtors' having a right to plead the benefit of division.

OA 2095. A suit brought against one of the debtors does not bar the creditor from bringing sults on the same account against the others.

OA 2096. If the thing due has perished, through the fault of one or more debtors in solido, or while he or they delayed to deliver it, the other codebtors are not discharged from the obligation of paying the value of the thing, but the latter are not liable for damages.

The creditor can claim damages only from the debtor by whose fault the thing was lost, and from those who delayed to deliver it.

OA 2097. A suit brought against one of the debtors in solido interrupts prescription with regard to all.

OA 2098. A codebtor in solido, being sued by the creditor, may plead all the exceptions resulting from the nature of the obligation, and all such as are personal to himself, as well as such as are common to all the codebtors.

He can not plead such exceptions as are merely personal to some of the other codebtors.

OA 2099. When one debtor becomes sole heir of the creditor, or when the creditor becomes sole heir of one of the debtors, the confusion extinguishes the debt in solido only for the part and portion of the debtor or of the creditor.

OA 2100. The creditor, who consents to the division of the debt with regard to one of the codebtors, still has an action in solido against the others, but under the deduction of the part of the debtor whom he has discharged from the debt in solido.

OA 2101. The creditor, who receives separately the part of one of the debtors, without reserving in the receipt the debt in solido or his right in general, renounces the debt in solido, only with regard to that debtor.

The creditor is not deemed to remit the debt in solido to the debtor when he receives from him a sum equal to the portlon due by him, unless the receipt specifies that it is for his part.

The same is to be observed of the mere demand made of one of the codebtors, for his part, if the latter has not acquiesced in the demand or if a judgment has not been given against him.

OA 2102. The creditor, who receives separately and without reservation the portion of one of the codebtors in the arrearages or interest of the debt, loses his claim in solido only as to the arrearages and interest due, and not as to those that may in future become due, nor as to the capital, unless the separate payment has been continued during ten successive years.

OA 2103. When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi-contract, an offense, or a quasi-offense, the debt shall be divided between them. If the obligation arises from a contract or a quasi contract, each debtor is liable for his virile portion. If the obligation arises from an offense or a quasi-offense, it shall be divided in proportion to each debtor's fault.

A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article[s] 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff. Amended by Acts 1960, No. 30, Sec. 1; Acts 1979, No. 431, Sec. 1.

OA 2104. If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each.

If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other.solvent codebtors and him who has made the payment.

OA 2105. In case the creditor has renounced his action in solido against one of the debtors, and one or more of the other codebtors become insolvent, the portion of the insolvent shall be made up, by equal contribution, by all the debtors, and even those precedently discharged from the debt by the creditor in solido, shall contribute their part.

OA 2106. If the affair for which the debt has been contracted in solido, concern only one of the co-obligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities.

OA 2107. There are many contracts in which the obligation is declared by law to be in solido, without any express stipulation to that effect; these will be found in the different chapters which treat of such contracts.

Section 7: Of Obligations Divisible and Indivisible

OA 2108. An obligation is divisible or indivisible, according as it has for its object, either a thing which, in its delivery or a fact which, in its execution, is or is not susceptible of division, either material or intellectual.

OA 2109. The obligation is indivisible, though the thing or the fact which is the object of it, be by its nature divisible, if the light, in which it is considered in the obligation, does not admit of its being partially executed.

OA 2110. The stipulation in solido does not give to the obligation the character of indivisibility.

'1 -- Of the Effects of the Divisible Obligation

OA 2111. An obligation susceptible of division must be executed between the creditor and the debtor, as though it were indivisible. The divisibility is applicable only with regard to their heirs, who can demand of the debt, or who are liable to pay of it, only the part which they hold, or for which they are liable, as representing the creditor or the debtor.

OA 2112. To the principle laid down in the preceding article, there is an exception with regard to the heirs of the debtor.

3. In case the debt be on a mortgage.
4. When it is of a determinate object.

3. When the debt is alternative of things at the option of the creditor, one of which is indivisible.

4. When one of the heirs is alone charged, by the title, with the execution of the obligation.

5. When it results, either from the nature of the engagement, or from the thing which is its object, or from the end proposed by the contract, that it was the intention of the aprties that the debt should not be partially discharged.

In the three former cases, the heir who is in possession of the thing due, or of the property mortgaged for the debt, may be sued for the whole on the thing due, or on the property mortgaged, but he has recourse against the coheirs.

In the fourth case, the heir is alone charged with the debt; and in the fifth case, every one of the heirs ntay also be sued for the whole; but the one sued has his recourse against the coheirs.

'2 -- Of the Effects of the Indivisible Obligations

OA 2113. Every one of those who have conjointly contracted an indivisible debt, is liable to [for] the whole, even though the obligation was not contracted in solido.

OA 2114. The case is the same, with regard to the heirs of him who has contracted such an obligation.

OA 2115. Every heir of the creditor may require the execution of the indivisible obligation.

He can not alone remit the whole of the debt; he can not alone receive the price instead of the thing. If one of the heirs has alone remitted the debt, or received the price of the thing, his coheir can not demand the indivisible thing without making allowance for the portion of the coheir who has remitted the debt or has received the price.

OA 2116. The heir of the debtor, being sued for the whole of the obligation, may ask for a delay to make his coheirs parties to the suit, unless the debt be of such a nature that it can be discharged only by the heir sued, against whom, in that case, judgment may be given, he having recourse for indemnification against his coheirs.

Section 8 B Of Obligations with Penal Clauses

OA 2117. A penal clause is a secondary obligation, entered into for the purpose of enforcing the performance of a primary obligation.

OA 2118. A penal obligation necessarily supposes two distinct contracts, one to do or to give that which is the principal object of the contract, the other to give or do something, if the principal object of the agreement be not carried into effect.

OA 2119. The penal clause has this in common with a conditional obligation, that the penalty is due only on condition that the first part of the contract be not performed. But it differs from it in this, that in penal contracts there must be always a principal obligation, independent of the penalty, while, in conditional contracts, there is no obligation, unless the condition happens.

OA 2120. The penalty being stipulated merely to enforce the performance of the principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance, such as inevitable accident, or irresistible force.

OA 2121. But if the form of the contract be changed, and only one obligation entered into subject to a condition, then the obligor takes all risks upon himself, and the penalty becomes the principal obligation, and may be recovered, if the condition be not performed, although there may have been inevitable accidents to prevent it.

OA 2122. The cases provided for by the two last preceding articles may always be modified, like all other obligations, by express stipulations. A contract to build a house by a certain day, and if it is not built, to pay one thousand dollars, is an example of a penal obligation, in which the obligor would be excused from paying the penalty, if inevitable accident had prevented him from building.

A contract to pay one thousand dollars, if the building be not finished at a stipulated time, is a conditional obligation, and gives a right to the penalty, if, from whatever cause, the condition be not performed.

OA 2123. The nullity of the principal obligation involves that of the penal clause. The nullity of the latter does not involve that of the principal obligation.

OA 2124. The creditor, instead of exacting the penalty stipulated from the debtor who is in default, may sue for the execution of the principal obligation.

OA 2125. The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation.

He can not demand the principal and the penalty together, unless the latter be stipulated for the mere delay.

OA 2126. Whether the principal obligation contain, or do not contain, a term in which it is to be fulfilled, the penalty is forfeited only when he who has obligated himself either to deliver, to take, or to do, is in default.

OA 2127. The penalty may be modified by the judge, when the principal obligation has been partly executed, except in case of a contrary agreement.

OA 2128. When the primitive obligation, contracted with a penal clause, is of an indivisible thing, the penalty is incurred by the contravention of anyone of the heirs of the debtor; and it may be exacted, either wholly against him who has contravened the obligation, or against every one of the coheirs for his part and portion, and, in case of mortgage for the whole, they having their remedy against him who has caused the penalty to be incurred.

OA 2129. When the primitive obligation contracted under a penalty is divisible, the penalty is incurred only by that one of the debtor's heirs who contravened the obligation, and only for the part for which he was liable on the principal obligation, no action lying against those who have executed it.

This rule has an exception, when the penal clause having been added in the intention that the payment should not be made partially, a coheir has prevented the execution of the obligation for the whole.

In that case the entire penalty may be exacted of him, and against the other coheirs only for their part; but the latter have their recourse against the former.

Chapter 5: Of the Manner in which Obligations May be Extinguished

OA 2130. Obligations are extinguished:

By payment.

By novation.

By voluntary remission.

By compensation.

By confusion.

By the loss of the thing.

By nullity or rescission.

By the effect of the dissolving condition, which has been explained in the preceding chapter.

By prescription, which shall be treated of in a subsequent title.

Section 1 -- Of Payment

OA 2131. By payment is meant, not only the delivery of a sum of money, when such is the obligation of the contract, but the performance of that which the parties respectively undertook, whether it be to give or to do.

OA 2132. He who is bound to do, or not to do, or to give, is indifferently called the obligor, or the debtor; and he to whom the obligation is made is in like manner without distinction called the obligee or the creditor.

'I B Of Payment or Performance in General

OA 2133. Every payment presupposes a debt; what has been paid without having been due, is subject to be reclaimed.

That can not be reclaimed that has been voluntarily given in discharge of a natural obligation.

OA 2134. An obligation may be discharged by any person concerned in it, such as a coobligor or a surety.

The obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor.

OA 2135. A third person may, for the advantage of the obligor, put the obligee in default, by offering to perform the obligation on the part of the debtor, even without his knowledge: but it must be for the advantage of the debtor, and not merely to change the creditor.

OA 2136. The obligation of doing can not be discharged by a third person against the will of the creditor, when it is the interest of the latter that it be fulfilled by the debtor himself.

OA 2137. But where the act to be done may as well be performed by a third person, who offers to do it, as by the obligor, then it may be discharged by this third person, or the creditor may be put in default by his offer to perform it, always under the condition that some advantage may result to the debtor, or that the offer be made at his request.

OA 2138. If the debtor give a thing in payment of his obligation, which he has no right to deliver, it does not discharge his obligation, and the owner of the thing given may reclaim it in the hands of the creditor, unless the obligation has been discharged by the payment of money, or the delivery of some of those things which are consumed in the use, and the creditor has used them; in which cases neither the money nor the things consumed can be reclaimed, and the payment will be good.

OA 2139. If money, or other stolen property, be given in payment, the payment is not good, and the owner may recover the amount paid.

OA 2140. The payment must be made to the creditor, or to some person having a power from him to receive it, or who is authorized by the court, or by law, to receive it for him.

Payment made to a person, not having power to receive it for the creditor, is valid, if the creditor has ratified it, or has profited by it.

OA 2141. If the power be revoked, either expressly or by the death of the creditor, payment to the bearer of the power will discharge the debtor, provided he were ignorant of the revocation.

OA 2142. A power to receive payment is revoked, as well by such change in the state of the creditor as renders him incapable himself of legally receiving, as by his death or express revocation; if he should become interdicted, the powers, given before the change took place, are void. Amended by Acts 1979, No. 711, Sec. 1.

OA 2143. A payment made to an attorney at law, employed to sue for the payment, will discharge the debtor, although the attorney be not specially empowered to receive the debt.

OA 2144. If the authority of him who gave the power ceases, the power is revoked. Thus a power given by a curator, an executor or a tutor, is no longer valid, after he ceases to exercise his trust.

OA 2145. Payments in general can legally be made only to the creditor, or some one empowered by him. The debtor, however, is discharged by a payment made in good faith to one who is really not.the creditor nor empowered by him, in the following cases:

1. When the debt is due on an instrument in writing, payable to the bearer, or payable to order, and indorsed, or if not payable to the bearer, if it be assigned in blank, or to bearer, and the payment is made to one in possession of the original evidence of the debt.

2. When the person, to whom the payment has been made, was at the time in possession of the evidence of the debt, under an order of a competent

court, as syndic or trustee of creditors, as curator, executor, heir, or by virtue of any office or other trust, that apparently gives him the power to receive the payment.

3. When the debt accrues for rents or other incidents of the administration of immovable property, or for the sale or expenses relative to movable property, of which the person is in possession by virtue of any of the titles mentioned int he last preceding rule, or where he has been in the uninterrupted possession of such immovable property for more than one year under any other title.

OA 2146. A special power to sell includes a power to receive the price, unless the contrary appear from the power, or unless the power be only to sell on a credit, in which case the attorney has no right to receive the price.

OA 2147. Payment made to the creditor is not valid, if he is one of those whom the law has placed under an incapacity to receive it, unless the debtor prove that the payment was applied to some object of utility for the creditor: it is not sufficient if it was applied nierely to contribute to his pleasure.

OA 2148. But if the incapacity to receive the payment arose from the privation of civil rights by the effect of a sentence, then the payment is not good, although the payment were applied to the utility of the creditor.

OA 2149. Payment made by a debtor to his creditor, to the prejudice of a seizure or an attachment, is not valid with regard to the creditors seizing or attaching: these may, according to their claims, oblige him to pay anew, and he has in that case alone recourse against the creditor.

OA 2150. The creditor can not be constrained to receive any other thing than that which is due, although the value of the thing tendered be equal, or even greater.

OA 2151. But if the thing agreed to be delivered, be a specific object, and it be destroyed before the time agreed for its delivery, the debtor may be forced to give, and the creditor to receive the value of this thing in money.

OA 2152. In the case provided for in the last preceding article, and in all other cases where the value of the thing to be delivered, enters into the measure of damages, its price, or that sum for which others of the like quality could have been purchased at the time agreed on for the delivery, is to be the rule for calculating the value; or, if no time was stipulated, then the price, at the tlme of the demand, must be referred to.

OA 2153. The debtor can not oblige the creditor to receive in part the payment of a debt, even divisible.

OA 2154. But if the sum due consists of several different debts, or of rents falling due at different times, the debtor may force the creditor to receive the payment of one of the debts, or of a single term of the rent; but a creditor is not obliged to receive the rent of a later term, when there is a former due.

OA 2155. The debtor of a certain and determinate matter is discharged by the delivery of the thing in the state in which it is in at [is at] the time of delivery, provided that, previously to the deterioration, he was not in default.

OA 2156. If the debt be of a thing which is determined only by its species, the debtor, in order to his discharge, is not bound to deliver it of the best kind, but he can not tender it of the worst.

OA 2157. The payment must be made in the place specified in the agreement. If the place be not thus specified, the payment, in case of a certain and determinate substance, ntust be made in the place where was, at the time of the agreement, the thing which is the object of it.

These two cases excepted, the payment must be made at the dwelling of the debtor. OA 2158. The expenses attending the payment are at the charge of the debtor.

'II B Of Payment with Subrogation

OA 2159. Subrogation to the right of a creditor in favor of a third person who pays him, is either conventional or legal.

OA 2160. The subrogation is conventional:

1. When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor: this subrogation must be expressed and made at the same time as the payment.

2. When the debtor borrows a sum for the purpose of paying his debts, and intending to subrogate the lender in the rights of the creditor. To make this subrogation valid, it is necessary that the act of borrowing and the receipt be executed in presence of a notary and two witnesses; that, in the act of borrowing, it be declared that the sum was borrowed to make the payment, and that in the receipt it be declared that the payment has been made with the money furnished for that purpose by the new creditor. That subrogation takes place independently of the will of the creditor.

OA 2161. Subrogation takes place of right:

1. For the benefit of him who, being himself a creditor, pays another cerditor, whose claim is preferable to his by reason of his privileges or mortgages.

1. For the benefit of the purchaser of any immovable property, who employs the price of his purchase in paying the creditors, to whom this property was mortgaged.

3. For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.

4. For the benefit of the beneficiary heir, who has paid with his own funds the debts of the succession.

OA 2162. The subrogation established by the preceding articles, takes place as well against the sureties, as against the debtors. It can not injure the creditor, since, if he has been paid but in part, he may exercise his right for what remains due, in preference to him from whom he has received only a partial payment.

'III -- Of the Imputation of Payments

OA 2163. The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.

OA 2164. The debtor of a debt, which bears interest or produces rents, can not, without the consent of the creditor, impute to the reduction of the capital any payment he may make, when there is interest or rent due.

Every payment which does not extinguish both the principal and the interest, must be imputed first to the payment of the interest.

OA 2165. When the debtor of several debts has accepted a receipt, by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there have been fraud or surprise on the part of the creditor.

OA 2166. When the receipt bears no imputation, the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due; otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable.

If the debts be of a like nature, the imputation is made to the debt which has been longest due: if all things are equal, it is made proportionally.

'IV -- Of Tenders of Payment and Consignment

OA 2167. When the creditor refuses to receive his payment, the debtor may make him a real tender; and on the creditor's refusal to accept it, he may consign the thing or the sum tendered.

A real tender, followed by a consignment, exonerates the debtor; it has the same effect, with regard to him, as a payment, when it is validly made; and the thing thus consigned remains at the risk of the creditor.

OA 2168. To make a real tender valid, it is necessary:

2. That it be made to the creditor having capacity to receive it.
3. That it be made by a person capable of paying.

3. That it be for the whole of the sum demanable [demandable], of the arrearages of interest due, for the Liquidated costs, and for a sum towards the costs not liquidated, the deficit of which sum is hereafter to be made up.

4. That the term be expired, if it has been stipulated in favor of the creditor.

1. That the condition on which the debt has been contracted be fulfilled.

6. That the tender be made in the place agreed upon for the payment, or that, if there be no special agreement as to the place of payment, it be made either to the creditor himself, or at his dwelling, or at the house chosen for the execution of the agreement.

OA 2169. The mode in which a tender and consignment must be made, is pointed out in the laws regulating the practice of the courts.

'5 -- Of the Cession of Property

OA 2170. The surrender of property is the relinquishment that a debtor makes of all his property to his creditors, when he finds himself unable to pay his debts.

OA 2171. The surrender of property is voluntary or forced.

OA 2172. The voluntary surrender of property is that which is made at the desire of the debtor himself.

The forced surrender is that which is ordered at the instance of the creditors of the debtor, or of some of them, in cases provided for by law.

OA 2173. Both those kinds of surrender are subject to formalities, which are prescribed by special laws.

OA 2174. The voluntary surrender is a benefit which the law grants to the honest but unfortunate debtor, by which he is permitted to secure the liberty of his person by surrendering, in a judicial manner, all his property to his creditors, any stipulation to the contrary, notwithstanding.

OA 2175. The surrender does not give the property to the creditors: it only gives them the right of selling it for their benefit and receiving the income of it, till sold.

OA 2176. The creditors can not refuse the surrender made according to the forms ordained by law, unless in case of fraud on the part of the debtor.

It operates the discharge of the restraint of the debtor's person, and delivers him from actual imprisonment.

It also suspends all kinds of judicial process against the debtor.

OA 2177. A cession of property discharges all the debts, which the debtor placed on his bilan, including those arising from offenses and quasi offenses, provided a majority of his creditors in number, and who are also creditors for more than the half of the whole sum due by him, agree to such discharge. But if such consent be not obtained, any one of his creditors may afterwards force a new cession, on showing that the debtor has acquired property over and above what is necessary for his maintenance. But on such new cession, the creditors, who have become such since the first cession, must be paid in preference to the others.

OA 2178. As the debtor preserves his ownership of the property surrendered, he may divest the creditors of their possession of the same, at any time before they have sold it, by paying the amount of his debts, with the expenses attending the cession.

OA 2179. Any surplus that may be in the hands of the creditors, or their syndics, or other agents, after paying the debts and expenses, must be paid over to the debtor.

OA 2180. The property surrendered forms a part of the succession of the debtor, if he should die before the sale: but the creditors are entitled to retain the possession and to sell, in the same manner as they were before the death of the debtor.

OA 2181. The creditors of those in whose favor a cession o: surrender of property has been made, even when they have a general mortgage, can not enforce it against the property surrendered; but they may seize the credits against the ceded estate on execution, and in cases where such proceeding is allowed, may attach them.

OA 2182. The creditors can never prescribe by any lapse of time, so as to gain the ownership of the property ceded.

OA 2183. The debtor is not obliged to comprehend in his surrender any property that is not subject to be seized and sold on execution against him; but, with this exception, all his property must be surrendered.

OA 2184. All sales of property ceded to creditors must be made at the same terms and under the same formalities that property seized on execution is sold; but the sale is made by the syndics, or some person appointed by them, at public auction.

Section 2 -- Of Novation

OA 2185. Novation is a contract, consisting of two stipulations; one to extinguish an existing obligation, the other to substitute a new one in its place.

OA 2186. To constitute a novation, there must be, at the time it is made, a valid obligation on which it can operate; it the first obligation, which it is intended to replace by the new one, be void, or if there be no such obligation, then the new obligation [is] of no effect.

OA 2187. The preexistent obligation must be extinguished, otherwise there is no novation; if it be only modified in some parts, and any stipulation of the original obligation be suffered to remain, it is no novation.

OA 2188. All kinds of legal obligations are subject to novation.

OA 2189. Novation takes place in three ways:

1. When a debtor contracts a new debt to his creditor, which new debt is substituted to the old one, which is extinguished.

2. When a new debtor is substituted to the old one, who is discharged by the creditor.

3. When by the effect of a new engagement, a new creditor is substituted to the old one, with regard to whom the debtor is discharged.

OA 2190. Novation can be made only by persons capable of contracting: it is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.

OA 2191. Novation by the substitution of a new debtor may take place without the concurrence of the former debtor.

OA 2192. The delegation, by which a debtor glves to the creditor another debtor who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation.

OA 2193. The creditor who has discharged the debtor by whom a delegation has been made, has no recourse against the debtor, if the person delegated beconies insolvent, unless that act contains an express reservation to that purpose, or unless the delegated person was in a state of open failure or insolvency at the time of the delegation.

OA 2194. The mere indication made by a debtor of a person who is to pay in his place, does not operate a novation.

The same is to be observed of the mere indication made by the creditor of a person who is to receive for him.

OA 2195. The privileges and mortgages of the former credit are not transferred to that which is substituted to it, unless the creditor has expressly reserved them.

OA 2196. When novation takes place by the substitution of a new debtor, the original privileges and mortgages of the credit can not be transferred on the property of the new debtor.

OA 2197. When novation takes place between the creditor and one of the debtors in solido, the privileges and mortgages of the former credit can be reserved only on the property of him who contracts the new debt.

OA 2198. By the novation made between the creditor and one of the debtors in solido, the codebtors are discharged.

The novation that takes place with regard to the principal debtor, discharges the sureties.

Nevertheless, if the creditor has required, in the first case, the accession of the codebtors, or on the second, that of the sureties, the former credit subsists, if the codebtors or the sureties refuse to accede to the new arrangement.

Section 3: Of the Remission of the Debt

OA 2199. The remission of the debt is either conventional, when it is expressly granted to the debtor by a creditor either having [creditor having] a capacity to alienate;

Or tacit, when the creditor voluntarily surrenders to his debtor the original title under private signature which establishes the obligation.

OA 2200. The surrender of the original title under private signature to one of the debtors in solido, forms a presumption of the remission of the debt, or of its payment, in favor of his codebtors; but proof may be adduced to the contrary.

OA 2201. The release or remission of a debt is presumed always to have been accepted by the debtor, and it can not be revoked by the creditor.

OA 2202. The delivery to the debtor of the authenticated copy of a notarial act, by which the obligation is created, does not alone form a presumption of the release of the debt, but it may, when accompanied by other proof, form such presumption.

OA 2203. The reniission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.

In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.

OA 2204. The remission of the thing, given as a pledge, does not suffice to raise a presumption of the remission of the debt.

OA 2205. The remission or even conventional discharge granted to a principal debtor, discharges the sureties.

That granted to the sureties does not discharge the principal debtor.

That granted to one of the sureties does not discharge the others.

OA 2206. What the creditor has received from one of the sureties, in discharge of his suretyship, must be imputed to the debt, and goes toward the discharge of the principal debtor and the other sureties.

Section 4 -- Of Compensation

OA 2207. When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.

OA 2208. Compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.

OA 2209. Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same klnd, and which are equally liquidated and demandable.

The days of grace are no obstacle to the compensation.

OA 2210. Compensation takes place, whatever be the causes of either of the debts, except in case:

1. Of a demand of restitution of a thing of which the owner has been unjustly deprived.

2. Of a demand of restitution of a deposit and of a loan for use.

3. Of a debt which has, for its cause, aliments declared not liable to seizure.

OA 2211. The surety may oppose the compensation of what the creditor owes to the principal debtor.

But the principal debtor can not oppose the compensation of what the creditor owes to the surety.

Neither can the debtor in solido oppose the compensation of what the creditor owes to his codebtor.

OA 2212. The debtor, who has accepted purely and simply the transfer which a creditor has made of his rights to a third person, can no longer oppose to the latter the compensation which, before the acceptance, he might have opposed to the former.

As to the transfer which has not been accepted by the debtor, but which has been notified to him, it hinders only the compensation of credits posterior to that notification.

OA 2213. When the two debts are not payable at one and the same place, the compensation of them can not be opposed, without allowing for the expense of the remittance.

OA 2214 When there are several compensable debts, due by the same person, the same rules are observed for the compensation, as are established for imputation in article 2166.

OA 2215. Compensation can not take place to the prejudice of the rights acquired by a third person; therefore, he who, being a debtor, is [has] became creditor since the attachment made by a third person in his hands, can not, in prejudice to the person seizing, oppose compensation.

OA 2216. He who has paid a debt which was of right extinguished by compensation, can no longer, in exercising the credit which he has not offered in compensation, avail himself, to the prejudice of a third person, of the privileges and mortgages that were attached to it, unless he had a just cause to be ignorant of the credit which was to compensate his debt.

Section 5 -- Of Confusion

OA 2217. When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation.

OA 2218. The confusion that takes place in the person of the principal debtor, avails his sureties.

That which takes place in the person of the surety, does not operate the extinction of the principal obligation.

That which takes place in the person of the creditor, avails his co debtors in solido only for the portion in which he was debtor. Amended by Acts 1871, No. 87.

Section 6 -- Of the Loss of the Thing Due

OA 2219. When the certain and determinate substance, which was the object of the obligation, is destroyed, is rendered unsalable, or is lost, so that it is absolutely not known to exist, the obligation is extinguished, if the thing has been destroyed or lost, without the fault of the debtor, and before he was in default.

Even when the debtor is in default, if he has not taken upon himself fortuitous accidents, the obligation is extinguished, in case the thing might have equally been destroyed in the possession of the creditor, if it had been delivered to him.

The debtor is bound to prove the fortuitous accident he alleges.

In whatever manner a thing stolen may have been destroyed or lost, its loss does not discharge the person who carrid [carried] it off, from the obligation of restoring its value.

OA 2220. When the thing is destroyed, rendered unsalable, or lost, without the fault of the debtor, he is bound, if he has any claim or action for indemnification, on account of that thing, to make over the same to the creditor.

Section 7 -- Of the Action of Nullity or of Rescission of Agreements

OA 2221. In all cases, in which the action of nullity or of rescission of an agreement or contract is not limited to a shorter period by a particular law, that action may be brought within ten years.

That time commences in case of violence, only from the day on which the violence has ceased; in case of error or deception, from the day on which either was discovered.

With regard to acts executed by persons under interdiction, the time commences only from the day that the interdiction is taken off; and with regard to acts executed by niinors, only from the day on which they become of age. Amended by Acts 1979, No. 711, Sec. 1; Acts 1980, No. 308, Sec. 1.

OA 2222. A simple lesion gives occasion to rescission, in favor of a minor not emancipated, against all sorts of engagements; and in favor of a minor emancipated, against all engagements exceeding the bounds of his capacity, as is laid down under the title: Of Mlinors, of their Tutorship and Emancipation.

OA 2223. A minor is not restituable (can not be relieved against his engagements) on the plea of lesion, when it proceeds only from a casual and unforseen [unforeseen] event.

OA 2224. The mere declaration of majority made by a minor, is no obstacle to his restitution.

OA 2225. A minor, carrying on commerce, or being an artisan, is not restituable against the engagements into which he has entered in the way of his business or art.

OA 2226. A minor is not restituable against the engagements stipulated in a validly executed matrimonial agreement. Amended by Acts 1979, No. 711, Sec. 1.

OA 2227. He is not restituable against the obligations resulting from his offenses or quasi offenses.

OA 2228. He can not make void the engagement which he had subscribed in his minority, when once he has ratified it in his majority, whether that engagement was null in its form, or whether it was only subject to restitution.

OA 2229. When minors or persons under interdiction are admitted, in these qualities, to the benefit of restitution against their engagements, the reimbursement of what may have been paid, in consequence of those engagements, during minority or interdiction, cannot be required of them, unless it be proved that what was paid, accrued to their benefit. Amended by Acts 1979, No. 711, Sec. 1.

OA 2230. Persons of the age of majority can not receive the benefit of restitution on account of lesion, except in cases and under conditions specially expressed by law.

OA 2231. When the formalities required with regard to minors or persons under interdiction, either for the alienation of immovable property, or in a partition of a succession, have been complied with, they are considered, as to these acts, as though they had executed them, being of full age or before interdiction.

Chapter 6 -- Of the Proof of Obligations and of that of Payment

OA 2232. He who claims the execution of an obligation must prove it.

On the other hand, he who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of the obligation.

OA 2233 The rules which concern the literal proof, the testimonial proof, the presumption, and the confession of the party, are explained in the following sections.

Section 1 -- Of the Literal Proof

'I -- Of Authentic Acts

OA 2234. The authentic act, as relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, aged at least fourteen years, or of three witnesses, if a party be blind. If a party does not know how to sign, the notary must cause him to affix his mark to the instrument.

All proces verbal of sales of succession property, signed by the sheriff or other person making the same, by the purchaser and two witnesses, are authentic acts. Amended by Acts 1908, No. 67; Acts 1920, No. 171.

OA 2235. An act which is not authentic, through the incompetence or the incapacity of the officer, or through a defect of form, avails as a private writing, if it be signed by the parties.

OA 2236. The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.

OA 2237. The acknowledgment of payment, made in an authentic act, can not be contested, under pretense of the exception of non numerata pecunia, which is hereby abolished.

OA 2238. An act, whether authentic or under private signature, is proof between the parties, even of what is there expressed only in enunciative terms, provided the enunciation have a direct reference to the disposition.

Enunciations foreign to the disposition, can serve only as a commencement of proof.

OA 2239. Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitimate [legitime]. Amended by Acts 1884, No. 5.

'II -- Of Acts Under Private Signature

OA 2240. All acts may be executed under private signature, except such as positive laws have ordained to be passes in presence of a notary.

OA 2241. It is not necessary that those acts be written by the contracting parties, provided they be signed by them.

OA 2242. An act under private signature, acknowledged by the party against whom it is adduced, or legally held to be acknowledged, has, between those who have subscribed it, and their heirs and assigns, the same credit as an authentic act.

OA 2243. No bill of exchange, promissory note or other instrument for the payment of money, made within this State, shall be received as evidence of a debt, when the whole sum shall be expressed in figures, unless the same shall be accompanied by proof that It was given for the sum therein expressed. The cents or fractional parts of a dollar may be in figures.

OA 2244. The person against whom an act under private signature is produced, is obliged fornially to avow or disavow his signature.

The heirs or assigns may simply declare that they know not the handwriting or the signature of the person they represent.

OA 2245. If the party disavow the signature, or the heirs or other representatives declare that they do not know it, it must be proved by witnesses or comparison, as in other cases.

OA 2246. Sales or exchanges of immovable property by instruments made under private signature, are valid against bona fide purchasers and creditors only from the day on which they are registered in the manner required by law.

OA 2247. Sales or exchanges of movable property are void against bona fide purchasers and creditors unless possession is given before such bona fide purchaser or creditor acquires his right by possession. What a delivery of possession is depends on the nature of the property: it may be constructive or actual; the delivery of the key of a store in which it is contained, or an order accepted by the person in whose custody it is held, if at the order of the vendor, is good evidence of delivery.

OA 2248. The books of merchants can not be given in evidence in their favor; they are good evidence against them, but if used as evidence, the whole must be taken together.

OA 2249. Domestic books and papers are no proof in favor of him who has written them; they are proofs against him:

2. In all cases where they formally declare a payment received.
3. When they contain an express mention that the minute was made to supply the want of a title in favor of him for whose advantage they declare that an obligation was made.

OA 2250. What is written by the creditor at the foot, in the margin, or on the back of the title, that has always remained in his possession, though it be neither signed nor dated by him, is good evidence when it tends to establish the discharge of the debtor.

In like manner, what is written by the creditor on the back, in the margin, or at the foot of the duplicate of a title, or of a receipt, is evidence, provided that duplicate be in the hands of the debtor.

'III -- Of Registry

OA 2251. It shall be the duty of all notaries public within this State, without the limits of the city of New Orleans to deposit in the office of the parish recorder of the parish in which the property is situated within fifteen days, at farthest, after the same shall have been passed, the original of all acts of sale, exchange, donation and mortgage of immovable property passed before them, and in the order of their respective dates, first making a careful record of said acts in their record books.

The foregoing provision shall not be so construed as embracing inventories or partitions or any other act required by law to be performed by notaries or parish recorders under any order of court: but the original of all such acts, without being recorded, shall be returned to the court from which the order is issued.

All notaries without the limits of the city of New Orleans, who may contravene the provisions of this article, shall be liable to a fine of one hundred dollars for each infraction of the same, to be recovered before any court of competent jurdiction, one-half for the benefit of the informer, as well as all such damages as the parties may suffer thereby. Amended by Acts 1890, No. 48.

OA 2252. The acts of notaries, when deposited in the office of the parish recorder, shall form a part of the archives of his office, and shall be immediately recorded by him as follows: If the act contains a conveyance of immovable property without a mortgage, in a book of conveyances, if it contains a conveyance of immovable property, together with a mortgage, in the aforesaid book of conveyances, and also in a book of conventional mortgages.

OA 2253 The record of an act under private signature, purporting to be a sale or exchange of real property, shall not have effect against creditors or bona fide purchasers, unless, previous to its being recorded, it was acknowledged by the party, or proved by the oath of one of the subscribing witnesses, and the certificate of such acknowledgment be signed by the parish recorder, a notary, or a justice of the peace, and recorded with the instrument.

OA 2254. It shall be the duty of the recorder to indorse on the back of each act deposited with him the time it was received by him, and to record the same without delay in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish recorders.

OA 2255. It shall be the duty of the notaries in New Orleans to cause every deed of sale, donation, or any other sort of conveyance of immovable property, passed before them respectively, even when the parties shall agree to dispense therewith, to be registered at the office of [the] register of conveyances for the parish of Orleans, within forty eight hours after the passage of said acts, and this under the penalty of five hundred dollars fine, to be recovered before any court of competent jurisdiction, for the use and profit of the Charity Hospital, and also under the penalty of being liable for all damages which the parties may suffer though the neglect of said notary to register the acts.

OA 2256. It shall be the duty of the register of conveyances to affix to the act to be enregistered a certificate that he has enregistered the same.

OA 2257. It shall be the duty of the register of conveyances of the parish of Orleans, to keep his office in as central a situation as possible, and in a brick house, and to keep his record books open to the inspection of all persons, and to deliver to them certificates of the inscriptions that may have been made, if they require the same.

Such certificates, when signed by the register and sealed with the seal of office, which it shall be the duty of the register to keep, shall be received in courts of justice in evidence in the same manner as all other public acts.

OA 2258. The register is authorized to open as many records at a time as may be necessary; they shall be numbered and paraphed by a judge of the district. He shall register all acts of transfer of immovable property passed in the parish of Orleans, which shall be presented to him, in the order in which said acts shall have been delivered to him, to be registered.

OA 2259. In the parish of Orleans, when the act of transfer of property shall have been passed before a notary public, it shall be sufficient that the registering of the act be made, on a certificate being presented from the notary, who shall have passed the act containing:

1. The date of the act, and the place where it was passed.

1. The names, surnames and qualities of the contracting parties.

3. A description of the immovable property which has been transferred, with all necessary details.

4. The price of the transfer, whether paid in ready money, or on time, and in the latter case what the terms and conditions are.

OA 2260. In the parish of Orleans, whenever an act of transfer shall have been passed under private signature, the register shall register it in toto, with an act ascertaining the signatures, if the contracting parties wish the registry of the act to be accompanied with an act ascertaining their signatures.

OA 2261. Whenever an act under private signature shall be taken to the register to be recorded, as required by the preceding article, he may, if thereunto requested by the parties, take an acknowledgment of their signatures, which acknowledgment shall be recorded with the act under private signature.

OA 2262. In the parish of Orleans, acts whether they are passed before a notary public or otherwise, shall have no effect against third persons, but from the date of their being deposited in the office of the register of conveyances.

OA 2263. Whenever a notary shall neglect to send to the register of conveyances an extract of the act by him passed, the register is authorized, on the production of an authentic copy of the act, to record only an extract thereof, containing the same clauses as are required to be contained in the extracts which notaries are authorized to deliver.

OA 2264. No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder, or register of conveyances of the parish where such immovable property is situated.

OA 2265. All sales of immovable property made by any sheriff or other officer, by virtue of any execution or other order of court; matrimonial agreements affecting immovables within this state: and final judgments affecting immovable property shall be recorded in the parish where the imniovable property is situated. Amended by Acts 1979, No. 711, Sec. 1.

OA 2266. All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall bc utterly null and void, except between the parties thereto. The recording ntay be made at any time, but shall only affect third persons from the time of the recording.

The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer.

'IV -- Of Copies of Titles

OA 2267. It shall be the duty of the recorder or other officers having charge thereof, to grant copies of the original acts deposited with them, under their signatures and seals of office.

When the original acts are authentic, such copies shall be considered legal evidence of their contents.

Copies of official bonds, duly certified by the officer in whose office they are required to be filed, shall always be admissible in evidence.

OA 2268. The copies of the acts, which are certified true copies from the originals by the notaries who are the depositaries of such originals, make proof of what is contained in the originals, unless it be proved that such copies are incorrect.

OA 2269. When the original title or record is no longer in being, a copy is good proof, and supplies the want of the original, when it is certified as being conformable to the record, by the notary who has received it, or by one of his successors, or by any other public officer, with whom the record was deposited and who had authority to give certified copies of it, provided the loss of the original be previously proved.

OA 2270. When an original title, by authentic act, or by private signature duly acknowledged, has been recorded in any public office, by an officer duly authorized, either by the laws of this State, or of the United States, to make such record, the copy of such record, duly authenticated, shall be received in evidence, on proving the loss of the original, or showing circumstances supported by the oath of the party, to render such loss probable.

'5 -- Of Recognitive and Confirmative Acts

OA 2271. Recognitive acts do not dispense with the exhibition of the primordial title, unless its tenor be there specially set forth.

Whatever they contain over and above the primordial title, or different from it, is of no effect.

Nevertheless, if there be several recognitions conformable, supported by possession, one of them being dated thirty years back, the creditor may dispense with the exhibition of the primordial title.

OA 2272. The act of confirmation or ratification of an obligation, against which the law admits the action of nullity or rescission, is valid only when it contains the substance of that obligation, the mention of the motive of the action of rescission, and the intention of supplying the defect on which that action is founded.

In default of an act of confirmation or ratification, it is sufficient that the obligation be voluntarily executed, subsequently to the period at which the obligation could have been validly confirmed or ratified.

The confirmation, ratification, or voluntary execution in due form, and at the period fixed by law, involves a renunciation of the means and exceptions that might be opposed to the act, without prejudice, however, to the right of persons not parties to it.

OA 2273. The donor can not, by any confirmative act, supply the defects of a donation inter vivos null in form; it must be executed again in legal form.

OA 2274. The confirmation, ratification, or voluntary execution of a donation by the heirs or assigns of the donor, after his decease, involves their renunciation to oppose either defects of form or any other exceptions.

Section 2 -- Of Testimonial Proof

OA 2275. Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.

OA 2276. Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.

OA 2277. All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.

OA 2278. Parol evidence shall not be received:

1. To prove any acknowledgment or promise to pay any judgment, sentence or decree of any court of competent jurisdiction, either in or out of this State, for the purpose or in order to take such judgment, sentence or decree out of prescription, or to revive the same, after prescription has run or been completed.

2. To prove any acknowledgment or promise of a party deceased to pay any debt or liability, in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed.

3. To prove any promise to pay the debt of a third person.

4. To prove any acknowledgment or promise to pay any debt or liability, evidenced by writing, when prescription has already run. But in all cases nientioned in this article, the acknowledgment or promise to pay shall be proved by written evidence signed by the party who is alleged to have niade the acknowledgment or promise or by his agent or attorney in fact, specially authorized in writing so to do. Amended by Acts 1886, No. 121.

OA 2279. When an instrument in writing, containing obligations which the party wishes to enforce, has been lost or destroyed, by accident or force, evidence may be given of its contents, provided the party show the loss, either by direct testimony, or by such circumstances, supported by the oath of the party, as render the loss probable: and in this case, the judge may, if required, order reasonable security to be given to indemnify the party against the appearance of the instrument, in case circumstances render it necessary.

OA 2280. In every case where a lost instrument is made the foundation of a suit or defense, it must appear that the loss has been advertised within a reasonable time in a public newspaper and proper means taken to recover the possession of the instrument; provided, that advertisement of a lost note shall not be necessary in any case where a surety bond given by a person who owns property liable to seizure, and who is domiciled in the parish where the security is to be given, or a commercial bond issued by an insurance company licensed to do business in the state of Louisiana, is furnished to protect the maker and/or his endorsers of said note from loss resulting from said note falling into the hands of a holder in due course provided that the bond must be in amount equal to the face of the note plus twenty five percent thereof. Amended by Acts 1970, No. 382, Sec. 1; Acts 1979, No. 365, Sec. 1.

OA 2281. Repealed by Acts 1916, No. 157, Sec. 2.

OA 2282. The circumstance of the witness being a relation, a party to the cause, interested in the result of the suit, or in the actual service or salary of one of the parties, is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility.

OA 2283. No attorney or counselor at law shall give evidence of any thing that has been confided to him by his client, without the consent of such client; but his being employed as a counsellor or attorney, does not disqualify him from being a witness in the cause in which he is employed.

Section 3: Of Presumptions

OA 2284. Presumptions are consequences which the law or the judge draws from a known fact to a fact unknown.

'I -- Of Presumptions Established by Law

OA 2285. Legal presumption is that which is attached by a special law, to certain acts or to certain facts; such are:

1. Acts which the law declares null, as presumed to have been made to evade its provisions, from their very quality.

2. Cases in which the law declares that the ownership or discharge results from certain determinate circumstances.

3. The authority which the law attributes to the thing adjudged.

OA 2286. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same: the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

OA 2287. Legal presumption dispenses with all other proof, in favor of him for whom it exists.

No proof is admitted against the presumption of the law, when, on the strength of that presumption, it annuls certain acts, or refuses a judicial action, unless it has reserved the contrary proof, and saving what will be said on the judicial confession.

'II -- Of Presumptions Not Established by Law

OA 2288. Presumptions, not established by law, are left to the judgment and discretion of the judge, who ought to admit none but weighty, precise and consistent presumptions, and only in cases where the law admits testimonial proof, unless the act be attacked on account of fraud or deceit.

Section 4 -- Of the Confession of the Party

OA 2289. The confession which is opposed to a party, is either extrajudicial or judicial.

OA 2290. The allegation of an extrajudicial confession, merely verbal, is useless in all cases of a demand, in support of which testimonial proof would be inadmissible.

OA 2291. The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.

It amounts to full proof against him who has made it.

It can not be divided against him.

It can not be revoked, unless it be proved to have been made through an error in fact.

It can not be revoked on a pretense of an error in law.

  

What are the obligations of the creditor?

What are the obligations of a debtor in an obligation to give a specific thing?

What are the obligations of a person obliged to give something?

What are sources of obligations and give examples?