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Civil Law to Common Law Dictionary

Civil Law to Common Law Dictionary

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A Civil Law to Common Law Dictionary
N. Stephan Kinsella
LL.M. (International Business Law) (1992), University of London
King’s College London; J.D. (1991), Paul M.Hebert Law Center, Louisiana State University; M.S. Electrical Engineering (1990), B.S.E.E. (1987), Louisiana StateUniversity. The author is an associate in the intellectual property section and international law practice group in theHouston office of Jackson & Walker, L.L.P., and is licensed to practice in Louisiana and Texas, and before the U.S.Patent and Trademark Office. [Updated author info as of 2002: seewww.KinsellaLaw.com.]The author would like to thank J. Lanier Yeates and Professor Robert Pascal for their helpful comments on anearlier draft of the article. Of course, any remaining mistakes are those of the author alone.
(Version submitted to
 Louisiana Law Review
; slightly edited version published in Vol. 54,No. 5 (May 1994)
)Alone in the common-law ocean of these United States, Louisiana is an island of civil law.Louisiana’s civil law is embodied in the Louisiana Civil Code, much of the text of which wasderived in part from the Code of Napoleon of 1804.
American common-law lawyers oftenencounter Louisiana’s civilian terms and concepts when dealing with lawsuits or transactions inLouisiana. No doubt they (and even Louisiana lawyers) are sometimes confused. How manycommon-law lawyers know of naked owners, usufructs, virile portions, vulgar substitutions,synallagmatic contracts, mystic testaments, antichresis, whimsical conditions, or lesion beyondmoiety? Even many Louisiana-trained attorneys are unfamiliar with terms such as amicablecompounder, jactitation, mutuum, and commodatum. Thus a dictionary of these and other civil lawterms might come in handy to some practitioners.In the main table below, various Louisiana civilian concepts are defined, and correlated withcommon-law concepts where possible. The civilian terms defined in the table generally have somecounterpart in common-law terminology, are interesting or unique Louisiana civilian concepts, aredifferent uses of words than in the common law, or are simply used more often in Louisiana than inher sister states.Some of the Louisiana expressions discussed herein are used commonly in states other thanLouisiana. Similarly, common-law terminology is used increasingly in Louisiana as a result of theinfluence of Louisiana’s 49 sister states, where civilian terminology should be properly used instead.For example, the common-law term
stare decisis
is often used, erroneously, in Louisiana instead of 
 jurisprudence constante
(see below); the civilian concept “immovable property” has been used inTexas statutes.
Therefore, many of the civil-law and common-law concepts discussed herein aresometimes used in a state with the other legal system.
Usage of the Tables
 Terms printed in S
are discussed in separate entries in the table. A cross-referenced term such as P
refers to the concept “possessory action,”which is discussed under the entry “Procedure.” Terms defined are sorted alphabetically. In case of phrases, the first letter only of the phrase is capitalized. Where several related concepts arediscussed together, they are placed alphabetically according to the spelling of the first termmentioned, and cross-references elsewhere in the table refer the reader to the appropriate location.
Civil Law to Common Law Dictionary · Kinsella Page 2
For example, the table entry “Collateral relations, Propinquity of consanguinity” discusses boththese concepts, and is alphabetically sorted under the first term. Additionally, the separate tableentry “Propinquity of consanguinity” refers the reader back to the “Collateral relations” entry.Common-law terms are printed in
bold print
in the main table. A second table is providedlisting significant common-law terms mentioned in the first table, and providing a correlation to theappropriate entry in the main table.
Civil Law Concept Definition
 Absolute simulation See S
.Abuse of rights
Stated in general terms, the doctrine of abuse of rightsprovides that ‘fault’ in the
sense may be imposedupon a party who has exercised a right in a manner that hascaused injury to another.”
At least one of four conditions “isrequired to invoke the doctrine: (1) the predominant motivefor exercising the right is to cause harm; (2) no serious orlegitimate motive exists for exercising the right; (3) theexercise of the right is against moral rules, good faith, orelementary fairness; or (4) the right is exercised for a purposeother than that for which it was granted.”
 Accessory contract See C
.Accretion of renouncedsuccessionsThe provision whereby the portion of an heir renouncing asuccession goes to certain of his coheirs.
 Acquisitive prescription See L
.Aleatory contract See C
.Alimentary duties Alimentary duties are the reciprocal obligations of childrenand ascendants to maintain each other. The obligation islimited to basic necessities.
 Alternative obligation See O
.Amicable compounderA type of 
, “authorized to abate something of thestrictness of the law in favor of natural equity.”
 Apparent servitude See S
.Arpent An arpent is an area equalling approximately 0.85 acres. Itcan also refer to the length of the side of a square arpent, or191.83 feet.
Civil Law to Common Law Dictionary · Kinsella Page 3
Civil Law Concept Definition
 Authentic act A writing executed before a notary public or other authorizedofficer, in the presence of two witnesses, and signed by eachparty, by each witness, and by the notary public, all in thepresence of each other.
 Bateau, PirogueA bateau is a small, flat-bottomed
, typically made of aluminum and often used on bodies of water in Louisiana forpurposes such as hunting.
A pirogue is similar to a
,used--and often raced--on swamps, rivers and bayous.
 Boudreaux and Thibodeaux Typical Cajun characters used in jokes, such as “Boudreauxand Thibodeaux were fishing one day . . . .” When a thirdcharacter is needed, Pierre, Tee-Boy, or Arceneaux are oftenused.
See C
.Caducity Caducity is a failure or lapse of a testamentary gift, forexample, where a
is revoked by the subsequentbirth of a
child to the testator, unless the testatorhas made testamentary provision to the contrary or has madetestamentary provision for such child.
 Cause A
(i.e., those that arise from
) cannot exist without a lawful cause. Cause is thereason why a party obligates himself.
Cause is not the samething as
. “The reason why a party bindshimself need not be to obtain something in return or to securean advantage for himself. An obligor may bind himself by agratuitous contract, that is, he may obligate himself for thebenefit of the other party without obtaining any advantage inreturn.”
 Civil Fruits See F
.Civil law, CivilianOften, the term
civil law
refers to laws concerned withprivate rights and remedies, as opposed to criminal laws. InLouisiana, however, “civil law” (or “civilian” or relatedexpressions) is usually used to distinguish a system of lawbased upon the Roman legal tradition from a system based onthe English common law. A civil law lawyer is also referredto as a civilian.
 Civil possession Once possession of a
is acquired, possession isretained by the intent to possess as owner even if thepossessor ceases to possess
ly. This is known as

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